Smt. Kailash Kumari and Others Vs. Bhola and Others - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. order1. the claimants have come up in appeal against the award of the motor accident claims tribunal. their only grievance is that the tribunal erred in disallowing the claim against the insurance company.2. the learned tribunal correctly found that the accident took place due to the rash and negligent driving of respondent no. 1. the deceased was government servant and drawing monthly salary of rs. 1750.20 paise at the time of his death. the tribunal determined the dependency of the claimants and held that the deceased was contributing rs. 1170/- per month for the maintenance of; his dependents. the deceased was aged 46 years on the date of his death. the tribunal applied the multiplier of '16' and found that the claimants are entitled to rs. 2,24,640/- by way of compensation. this amount was ordered to be paid with interest by respondent nos. 1 and 2.3. the learned tribunal found that the deceased was being carried in a private car as a gratuitous passenger and the insurance company is not liable to pay the compensation. the view taken by the learned tribunal is unsustainable by law. the tariff advisory committee, by their instructions dated march 13, 1978 had given directions to the insurance companies in regard to liability of insurance company in respect of the passengers carried in a private car. it was directed by the committee that all existing policies should should be deemed to incorporate this amendment in the insurance policies, which is to the following effect :--'death or bodily injury to any person including occupants carried in the motor car provided that such occupants are not carried for hire or reward.'these instructions have the statutory force. the insurance company is now an instrumentality of the sate which is bound by the statutory directions of the tariff advisory committee. apart from this, section ii of the insurance policy exhibit r1 deals with liability to third parties. clause (1) of section ii isin the following terms:--'1. the company will indemnify the insured in the event of accident caused by or arising out of the use of the motor car against all sums including claimant's costs and expenses which the insured shall become legally liable to pay in respect of- (a) death of or bodily injury to any person including occupants carried in the motor car provided that such occupants are not carried for hire or reward but except so far as is necessary to meet the requirements of s. 95 of the motor vehicles act, 1939 the company shall not be liable where such death or injury arises out of and in the course of employment of such person by the insured. (b) damage to property belonging to the insured or held in trust by or in the custody or control of the insured'. a bare reading of this clause makes it obvious that passenger's liability is also covered. thesubmission that the policy does not coverpassenger's liability is without substance. anidentical matter came up for considerationbefore the karnataka high court in newindia assurance co. ltd. v. h. siddalinganaika, 1985 acc cj 89 : (air 1984 kant 228).the bench relying upon its earlier judgmentheld thus:-- (at pp. 230-31 of air)'this court had occasion to deal with a similar clause and interpret the same, in indian mercantile insurance v. gowramma, ilr (1979) 1 kant 887. interpreting similar clause in the policy, this court has held by a division bench of which one of us was a party, that the clause includes passenger liability also. hence, there is no substance in the contention raised before us that the policy does not cover passenger liability in the jeep'.4. learned counsel for the respondents placed reliance on pushpabai purshottam udeshi v. ranjit ginning & pressing co., 1977 acc cj 343 : (air 1977 sc 1735), in support of the proposition that the insurance company is not liable when the passenger iscarried without hire or reward. this judgment does not render any assistance to the learned counsel. the decision of the apex court makes it clear that although there is no statutory liability of the insurance company to pay compensation to a passenger, a contract of insurance can provide otherwise. the instructions of the tariff advisory committee which is a statutory body will be deemed to have been incorporated in every contract of insurance. even if it is not expressly mentioned in the contract by the deeming provisions, the court will so read it in the insurance policy that the directions given by the tariff advisory committee were incorporated in the insurance policy. after reading the directions in the insurance policy, the court will give effect to it. the judgment of the supreme court was rendered on the same date, when the instructions of the tariff advisory committee came into force. moreover, in the supreme court case, the accident had taken place on 18-12-1960 prior to the issuance of the directions of the said committee.5. after issuance of the instructions of the tariff advisory committee, the insurance company cannot avoid liability. the owner of the vehicle can legitimately say that under the policy, the insurance company was bound to pay to the claimants for the death of the passenger. the insurance company has not let any evidence on record that its liability is limited. in the absence of any evidence, it has tb be held that the liability of the insurance company is unlimited.6. for the aforesaid reasons, this appeal is allowed with costs. the award of the learned motor accidents claims tribunal is modified and it is ordered that the amount of compensation with interest will be payable jointly and severally by respondents nos. 1, 2 and 5. counsel's fee is assessed at rs. 1000/-.7. appeal allowed.

Judgment:
ORDER

1. The claimants have come up in appeal against the award of the Motor Accident Claims Tribunal. Their only grievance is that the Tribunal erred in disallowing the claim against the Insurance company.

2. The learned Tribunal correctly found that the accident took place due to the rash and negligent driving of respondent No. 1. The deceased was Government servant and drawing monthly salary of Rs. 1750.20 paise at the time of his death. The Tribunal determined the dependency of the claimants and held that the deceased was contributing Rs. 1170/- per month for the maintenance of; his dependents. The deceased was aged 46 years on the date of his death. The Tribunal applied the multiplier of '16' and found that the claimants are entitled to Rs. 2,24,640/- by way of compensation. This amount was ordered to be paid with interest by respondent Nos. 1 and 2.

3. The learned Tribunal found that the deceased was being carried in a private car as a gratuitous passenger and the insurance company is not liable to pay the compensation. The view taken by the learned Tribunal is unsustainable by law. The Tariff Advisory Committee, by their instructions dated March 13, 1978 had given directions to the insurance companies in regard to liability of insurance company in respect of the passengers carried in a private car. It was directed by the Committee that all existing policies should should be deemed to incorporate this amendment in the insurance policies, which is to the following effect :--

'Death or bodily injury to any person including occupants carried in the motor car provided that such occupants are not carried for hire or reward.'

These instructions have the statutory force. The insurance company is now an instrumentality of the Sate which is bound by the statutory directions of the Tariff Advisory Committee. Apart from this, Section II of the Insurance Policy Exhibit R1 deals with liability to third parties. Clause (1) of Section II isin the following terms:--

'1. The company will indemnify the insured in the event of accident caused by or arising out of the use of the Motor Car against all sums including claimant's costs and expenses which the insured shall become legally liable to pay in respect of-

(a) death of or bodily injury to any person including occupants carried in the Motor Car provided that such occupants are not carried for hire or reward but except so far as is necessary to meet the requirements of S. 95 of the Motor Vehicles Act, 1939 the Company shall not be liable where such death or injury arises out of and in the course of employment of such person by the insured.

(b) damage to property belonging to the insured or held in trust by or in the Custody or control of the insured'.

A bare reading of this clause makes it obvious that passenger's liability is also covered. Thesubmission that the policy does not coverpassenger's liability is without substance. Anidentical matter came up for considerationbefore the Karnataka High Court in NewIndia Assurance Co. Ltd. v. H. SiddalingaNaika, 1985 Acc CJ 89 : (AIR 1984 Kant 228).The Bench relying upon its earlier judgmentheld thus:-- (at Pp. 230-31 of AIR)

'This Court had occasion to deal with a similar clause and interpret the same, in Indian Mercantile Insurance v. Gowramma, ILR (1979) 1 Kant 887. Interpreting similar clause in the policy, this Court has held by a Division Bench of which one of us was a party, that the clause includes passenger liability also. Hence, there is no substance in the contention raised before us that the policy does not cover passenger liability in the jeep'.

4. Learned counsel for the respondents placed reliance on Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co., 1977 Acc CJ 343 : (AIR 1977 SC 1735), in support of the proposition that the insurance company is not liable when the passenger iscarried without hire or reward. This judgment does not render any assistance to the learned counsel. The decision of the apex Court makes it clear that although there is no statutory liability of the insurance company to pay compensation to a passenger, a contract of insurance can provide otherwise. The instructions of the Tariff Advisory Committee which is a statutory body will be deemed to have been incorporated in every contract of insurance. Even if it is not expressly mentioned in the contract by the deeming provisions, the Court will so read it in the insurance policy that the directions given by the Tariff Advisory Committee were incorporated in the insurance policy. After reading the directions in the insurance policy, the Court will give effect to it. The judgment of the Supreme Court was rendered on the same date, when the instructions of the Tariff Advisory Committee came into force. Moreover, in the Supreme Court case, the accident had taken place on 18-12-1960 prior to the issuance of the directions of the said Committee.

5. After issuance of the instructions of the Tariff Advisory Committee, the insurance Company cannot avoid liability. The owner of the vehicle can legitimately say that under the policy, the insurance company was bound to pay to the claimants for the death of the passenger. The insurance company has not let any evidence on record that its liability is limited. In the absence of any evidence, it has tb be held that the liability of the insurance company is unlimited.

6. For the aforesaid reasons, this appeal is allowed with costs. The award of the learned Motor Accidents Claims Tribunal is modified and it is ordered that the amount of compensation with interest will be payable jointly and severally by respondents Nos. 1, 2 and 5. Counsel's fee is assessed at Rs. 1000/-.

7. Appeal allowed.