P. JWALINI DEVI ADDWA Vs. K. PATHUMMA

JUDGEMENT

(1.) THESE two appeals are preferred against the judgment in M.C.A. No. 2074 of 1980 of Motor Accidents Claims Tribunal, Kozhikode dated 30.10.1985. M.FA No. 441 of 1986 is the appeal preferred by respondent Nos. 3 to 6 in the claim petition and M.F.A. No. 143 of 1986 is the one preferred by the 7th respondent (insurer) in the said claim petition. One Abdurahiman initially filed the claim. He claimed compensation of Rs. 1,00,000/ - against the 1st respondent (owner of the vehicle) and second respondent, who was driving the motor cycle at the time of the accident. During the pendency of the proceedings before the Tribunal, Abdurahiman died. His legal heirs (wife and children) were impleaded as additional petitioner Nos. P 2 to P 6. The 1st respondent (owner of the motor cycle) also died. Respondent Nos. 3 to 6 were impleaded as the legal heirs of the 1st respondent. Abdurahiman was walking through the side of the main road on 27.9.1979. At that time the motor cycle, driven by the 2nd respondent in a rash and negligent manner, came from behind and hit Abdurahiman. He was thrown away. He suffered serious injuries. There was dislocation and fracture of left leg. Permanent disability was caused to him. He was treated in Government Hospital, Mananthoddy and then at the Medical College Hospital, Calicut, for a long period. Abdurahiman did not get any relief. Finally he died. Thereafter his wife and children got themselves impleaded as his legal heirs and continued the proceedings. The claim set up was contested by respondent Nos. 3 to 6 (legal heirs of the 1st respondent -owner of the motor cycle) as also by the 7th respondent (insurer). They denied the rashness and negligence attributed to the 2nd respondent. It was stated that the accident happened due to the negligence of the deceased Abdurahiman who crossed the road suddenly. It was contended that the claim put forward is excessive. There was also a plea that the 2nd respondent was not the driver employed by the 1st respondent. The 7th respondent (insurer) asserted that there is no valid policy regarding the motor cycle in question and submitted that the claimant should be directed to produce the policy. Respondent Nos. 3 to 6 in their written statement dated 6.7.1983, gave the number of an insurance policy. The 7th respondent (insurer) filed a written statement on 30.4.1984 and even at that late stage contended that the motor cycle in question, which caused the accident, was not insured with the 7th respondent. At this juncture it should be stated that in the light of the statement filed by respondent Nos. 3 to 6, Exh. R -l insurance policy was filed by the 7th respondent. It disclosed that the motor cycle in the instant case, KLN 1531 was insured for a later period from 27.10.1981 to 27.10.1982. We should bear in mind that the accident occurred in this case on 27.9.1979. On the basis of evidence available in the case, the Motor Accidents Claims Tribunal held that the motor cycle KLN 1531 belonged to the 1st respondent, that it was entrusted with the 2nd respondent for repairing, that the 2nd respondent conducted a trial run when the accident occurred, that he so drove the vehicle with the consent of the 1st respondent for the trial run, which is actually a need of the owner, and that the vehicle was driven for the purpose of the owner. In this perspective, respondent Nos. 3 to 6 were held liable for the negligence of the 2nd respondent. The court found fault with the 7th respondent in not taking sufficient care to produce the policy. It was observed that the insurance company (7th respondent) did not take sufficient steps to trace out the policy and discharge their burden and so it should be found that the 7th respondent is the insurer of the motor cycle, which belonged to the 1st respondent. On the basis of the evidence of PWs 2 and 3 (eye -witnesses) it was held that the 2nd respondent was rash and negligent in driving the motor cycle, which caused the accident and that the deceased Abdurahiman was not negligent. Placing reliance on Exhs. P -l to P -3, it was held that the deceased was completely disabled as a result of the fracture of his bone and as a result of the injuries of the stomach. Exhs. A -2 and A -3, as also the evidence of PWs 1 and 3 were relied on to show that as a result of the injuries sustained in the accident, the 1st petitioner was completely bed -ridden as a disabled man and was suffering throughout. Originally, the 1st petitioner claimed Rs. 1,00,000/ -. But he also claimed a sum of Rs. 25,000/ - for pain and suffering, for permanent disability Rs. 30,000/ -and for loss of earning power Rs. 64,000/ -. The claim was filed in 1980. The Tribunal took the view that the deceased Abdurahiman was contributing to his family Rs. 450/ - per month, annual income being Rs. 5,400/ -. He was aged 48 years at the time of his death. His wife (petitioner No. 2) was aged 36 and petitioner Nos. 4 to 6 were minors. Holding that the deceased was a healthy person, 12 times the annual income could be awarded as loss of earning power of the deceased, besides other compensations claimed. The Tribunal held that the wife and children of the deceased Abdurahiman are entitled for enhanced compensation apart from the compensation of Rs. 1,00,000/ - claimed, payable to the petitioners.

(2.) IN M.F.A. No. 441 of 1986 the legal representatives of the 1st respondent (owner of the motor cycle) challenge the findings of the Tribunal that the accident occurred due to the rash and negligent act of the 2nd respondent or that the 1st respondent is vicariously liable for the act done by the 2nd respondent and that an amount of Rs. 1,00,000/ - can be considered to be just or proper compensation. It was argued that deceased 1st respondent entrusted the motor cycle to the 2nd respondent, a mechanic and if the accident occurred while the 2nd respondent was riding the motor cycle, the 1st respondent cannot be held to be vicariously liable for payment of compensation for the accident. We see no force in this plea. It is admitted that the motor cycle belonged to the 1st respondent. It is also admitted that he had entrusted the same for repairs to the 2nd respondent. The 2nd respondent in performing the repairs to the vehicle conducted the trial run. It was during the trial run that the accident happened. It cannot be denied that when the 1st respondent entrusted the vehicle to the 2nd respondent for repairs, he impliedly consented that the 2nd respondent may conduct the trial run. The trial run conducted in this case by the 2nd respondent should be deemed to be with the consent of the owner. It was actually for the need or the purposes of the 1st respondent, the owner. In such circumstances, it is idle to contend that the 2nd respondent did not conduct a trial run for the 1st respondent, nor can the 2nd respondent be deemed to have used the motor cycle for himself. On the facts the conclusion is irresistible that the 2nd respondent in conducting the trial run of the motor cycle drove it with the consent of the 1st respondent, the owner and for the purposes of the 1st respondent. The accident had occurred then. For such an act, the 1st respondent (owner) is liable to pay the compensation. We hold so. We repel the argument to the contrary. We have also found that the 1st respondent is responsible for the negligence of the 2nd respondent. So respondent Nos. 3 to 6 as legal heirs of the 1st respondent are responsible for paying the compensation to the deceased Abdurahiman or to his heirs, payable by the 1st respondent. The Tribunal on the basis of the evidence of the eye -witnesses PWs 2 and 3 found that the 2nd respondent drove the motor cycle in a rash and negligent manner and hit the deceased. There was no contra evidence. So the finding of the Tribunal that the 2nd respondent was rash and negligent in driving the motor cycle and caused the accident and that the petitioner was not negligent is unassailable. We affirm it.

(3.) IT follows from the above that respondent Nos. 3 to 6 (the legal heirs of the 1st respondent) and the properties of the 1st respondent in their hands are responsible for the award of compensation granted to the applicants (petitioners). The Tribunal had stated that the 7th respondent (insurer) will deposit the amount in the first instance. This is disputed by the insurer. From the very early stage, the insurer took up the plea that the motor cycle in the instant case was not insured with the 7th respondent. The policy number contained in the written statement of respondent Nos. 3 to 6 is admittedly for a later period. It does not relate to the period during which the accident occurred. The 1st respondent as owner of the motor cycle in question had a duty to produce the insurance policy. He did not do so. He had at least the minimal duty to supply the relevant particulars regarding the number of the policy, the period during which the insurance was kept alive, etc. and then take proceedings before the Tribunal to direct the 7th respondent (insurer) to produce the relevant insurance policy. Neither the 1st respondent nor respondent Nos. 3 to 6 moved a little finger in that behalf. An initial duty is cast on the 1st respondent (owner) either to produce the policy or at least to furnish the relevant particulars of the policy and call upon the insurer to produce the policy. It was not so done. In such circumstances, it is idle to contend that it was the duty of the insurer to produce the policy. For the omissions of the 1st respondent (owner) the insurer, the 7th respondent, cannot be held responsible. He cannot be found fault with. We are of the view that the Tribunal was not justified in finding fault with the 7th respondent for not producing the insurance policy. Even the minimal data or particulars were not furnished to the 7th respondent to enable him to produce the policy. In such circumstances, we are of the view that the Tribunal was in error in holding that the amount of compensation decreed will be deposited by the 7th respondent (insurer). We make it clear and hereby declare that the liability of the insurer, the 7th respondent, will arise only when respondent Nos. 2 to 6 produce before the proper Tribunal the relevant policy relating to the motor cycle in question, substantiating that the policy was alive during the relevant period and that under the terms of the policy the 7th respondent (insurer) is liable to indemnify the 1st respondent or his legal heirs, respondent Nos. 3 to 6. The right of the 1st respondent and respondent Nos. 3 to 6 to be indemnified from the 7th respondent can arise only then and till then the liability to pay the compensation decreed by the Motor Accidents Claims Tribunal will be only that of respondent Nos. 3 to 6. The legal liability of respondent Nos. 3 to 6 in this behalf is made clear.