NATIONAL INSURANCE CO LTD Vs. KASTURI

JUDGEMENT

(1.) IN this appeal the question involved is short and simple and that is as to what extent the liability can be fixedfor the payment of compensation on an insurer of a motor vehicle under Section 95(2)(ii)(2) and (4) of the Motor Vehicles Act, 1939 (hereinafter to be referred to as 'the Act').

(2.) VERY few facts need narration for the disposal of this appeal. The claimants are the heirs and legal representatives of the deceased Bagdi Ram being his widow, sons and daughters. On May 31, 1978, Bagdi Ram was travelling in bus RJR 7685. The bus was going from Kota to Gandhi Sagar. Around 9.30 A. M., when it reached near Berkhera, it left the road and capsized. Bagdi Ram fell down and was crushed by the bus, resulting in his instantaneous death on the spot. Mohan Lal Meghwal was driving the bus at the time of the accident. Respondent Devi Dayal was the owner of the bus. The claimants presented an application under Section 110 -A of the Act against the owner, driver and the insurer, making a demand of Rs. 2,58,000/ - as compensation. It was alleged that Bagdi Ram was a youngman of 27 years in age with sound health and perfect physique. He used to earn approximately Rs. 500/ - per month. He was the only breadwinner of the family. In the normal course, he was expected to remain alive up to the age of 70 years. It was further alleged that the accident had taken place due to the rash and negligent driving of the bus by its driver Mohanlal. The claim was resisted by the owner and the insurer. They admitted the accident but denied that it had occurred due to the rash and negligent driving of the bus by its driver. The bus was moving slowly. All of a sudden, the main plate supporting the bus got broken. The bus, therefore, lost its balance. As a result, it left the road and capsized. The quantum of compensation was challenged. The defence taken by the insurance company was that in case the claim was accepted, its liability for the payment of compensation and to indemnify the owner was only to the extent of Rs. 5000/ -. Necessary issues were raised and the evidence of the parties was recorded. On the conclusion of trial, the Tribunal held that the accident had taken place due to the rash and negligent driving of the bus by its driver Mohanlal. The compensation was quantified in a sum of Rs. 42,000/ -. An award was accordingly made. The liability of the insurer to indemnify the bus owner was fixed for the entire amount of the compensation. Aggrieved against the said award, the insurance company has come up in appeal.

(3.) THE contention raised by Mr. Mathur learned counsel appearing for the appellant (insurance company) is that the Tribunal crept into an error in fixing the liability of the appellant for the payment of the entire amount of compensation of Rs. 42,000/ -. It was urged that the insurer cannot be called upon to make a payment of more than Rs. 5000/ - in view of the specific provisions of Section 95(2)(b)(ii) (2) and (4) of the Act. Reliance in support of the contention was placed on Sheikhpura Transport Company v. Northern India Transporters Insurance Company Ltd. AIR 1971 SC 1624, Madras Motor and General Insurance Company Ltd. v. V. P. Balkrishanan 1982 Acc CJ 460 (Ker), Premdevi v. Harbhajan Singh 1984 Acc CJ 707 (Punj and Har), Noor Mohammed v. Phoola Rani 1984 Acc CJ 518 : (AIR 1984 All 317) and Jyoti Prasad v. Smt. Bittan Devi AIR 1985 All 32. It was argued that the observations made by their Lordships of the Supreme Court in Motor Owners Company Ltd. v. Jadavji Keshavji Modi AIR 1981 SC 2059 were misunderstood and wrongly applied by the Tribunal. The dicta laid down in this authority renders no assistance to the bus owner or the claimants.