KRISHNAN NAIR Vs. KARUNAKARAN NAIR

JUDGEMENT

(1.) M.F.A. 69/1979 is filed by the owner and driver and M.F.A. 76/1979 is filed by the Insurer of a bus bearing registration No. KLE8071, challenging the award of the Motor Accidents Claims Tribunal, Ernakulam awarding a sum of Rs. 41,500/- as compensation together with interest at 6 per cent from the date of award and costs to the claimants, father, mother and grandmother of N. K. Radhakrishnan Nair who died in a motor vehicle accident on 4-2-1976 at Thripunithura.

(2.) When Radhakrishnan Nair was riding a cycle from east to west along the public road near Thripunithura on the afternoon of 4-2-1976, the bus proceeding from east to west hit the cycle from behind as a result of which Radhakrishnan Nair was thrown out and he was dragged on for about 10 yards with the cycle along the road and thereafter front wheel of the bus ran over him. At that time, Radhakrishnan Nair was drawing monthly salary of Rs. 150/- under PW 3 and had prospects of going to West Asia for employment. Claimants claimed Rs. 5,000/- as special damages on account of compensation for pain and suffering undergone by the deceased, Rs. 500/- towards funeral expenses and Rs. 75,000/-as compensation for future loss of income or support. Claim was opposed by the owner, driver and insurer of the vehicle. They contended that the cycle was proceeding from west to east along the southern extremity of the road and the cyclist suddenly dashed across the road from behind a lorry parked on the southern side of the road. Therefore, according to them, the claim did not lie. They also contended that the claim was excessive. Their contentions were overruled by the Tribunal which awarded damages on account of compensation for pain and suffering undergone by the deceased and in regard to funeral expenses as claimed. The Tribunal further awarded Rs. 36,000/-as compensation for loss of income or support.

(3.) The insurer has filed a separate appeal. Liability of the insurer arises on the basis of the contract and in the light of S.96 of the Motor Vehicles Act, 1939. Sub-sec. (2) of S.96 gives the right to the insurer to defend an action for compensation on the grounds enumerated in clauses (a), (b) and (c). The defence that the accident took place not on account of rash and negligent driving on the part of the driver is not a defence contemplated under this provision. Equally, this provision does not contemplate defence being raised in regard to the quantum of compensation. The insurer has no case that the contract enables the insurer to defend the action in the place of the insured. In these circumstances, the insurer is not entitled to raise the contentions sought to be raised in the appeal. This question has been settled by a long line of decisions. See British India General Insurance Company Ltd. v. Captain Itbar Singh and others ( AIR 1959 SC 1331 ), Ayesha Begum v. G. Veerappan and others ( 1966 AC 101 ). Kesavan Nair v. State Insurance Officer ( 1971 KLT 380 ), Oriental Fire and General Insurance Co. Ltd. v. Gopalakrishna Pillai ( 1978 KLT 773 ), United India Fire and G.I. Co. Ltd. v. Kalyani ( 1982 KLT 559 ) and New India Assurance Company Ltd. v. Radhakrishnan ( 1983 KLT 547 ).