SMT. SUDHA RANI GOYAL v. M/S KRISHNA STEELS, JAGADHRI & Ors.

CORAM: HON'BLE MR. JUSTICE K.KANNAN.

1. Whether reporters of local papers may be allowed to see the judgement. Yes To be referred to the reporters or not? No

2. 3. Whether the judgement should be reported in the digest? Yes ---- PRESENT: MR. C.B. GOEL, ADVOCATE AND MR. NITIN, ADVOCATE FOR THE APPELLANT. NONE FOR RESPONDENTS NO.1, 2, 4, 5, AND 6. MR. SANJIV PABBI, ADVOCATE FOR THE RESPONDENT NO.3-INSURANCE COMPANY. MR. R.K. BISHAMBOO, ADVOCATE FOR RESPONDENT NO.7. K.KANNAN, J.(ORAL)

1. Both the appeals, i.e. FAO No.471 of 1996 and FAO No.472 of 1996 are against the award of dismissal for the claims arising out of a death and injury resulting from motor accident. The deceased and the injured were passengers in a private car and the accident had taken place when on a rainy slippery night the driver of the car had not noticed a parked truck FAO No.471 of 1996 -2- which had been involved in yet another accident the previous night and had been remaining stationary having dashed against a tree. The Tribunal reasoned that the accident had taken place due to the unfortunate event of rain and poor visibility and also that it was an act of God and found responsible the drivers of both the vehicles and dismissed the petition.

2. By the fact that the truck was remaining stationary and it had dashed against a tree, it must only be assumed that the truck could not have been in the middle of the road if it had dashed against a tree and was remaining parked since the previous night. Even yet another vehicle coming and dashing against such a stationary vehicle must take a higher burden of responsibility. But in this case the Tribunal reasoned that the drivers of the vehicles cannot be found faulty with. In my view, such an inference was not realistic or proper. The truck driver, having dashed his vehicle must have ensured that the vehicle was pushed in any way as not to make obstruction to the traffic. He must have also known that during rainy season with poor visibility there ought to have been sufficient indicators for a stationary vehicle. There was evidence that the parking lights had stopped working and there was no sufficient indicator. Even then I cannot take the driver of the car as totally free from blame, for there was need for a greater circumspection when it was a rainy night and when the visibility was poor. It will be no answer to a situation of an accident for a driver to plead that it was beyond his control to save the accident. The Tribunal ought to have placed a higher burden to explain as to why he could not avoid hitting the vehicle which was parked. I will take the liability of the driver at 75% and take the liability of the truck at 25% for having let the vehicle remain stationary without removing it from the place of accident since the previous FAO No.471 of 1996 -3- night.

3. The Tribunal did not make any determination of compensation, for, according to it, the accident had resulted in a situation where nobody could be made answerable for the claims emanating from death and injury to the occupants of the car. Since I have already held that liability has to be fastened in a manner that I have directed, the quantum for the claim of a mother for the death of a passenger who was an 18 years old boy and was said to be working somewhere and earning Rs.2000/- per month, I will take as notional income Rs.15000/- discarding the artificial claim that he was earning, when he was still a student. I would make a deduction of 1/3rd and apply a multiplier of 16 to take the loss of extent of dependence at Rs.1,60,000/- and add Rs.5000/- towards loss of love and affection for the mother and further a sum of Rs.5000/- for funeral expenses. The total amount of compensation shall be Rs.1,70,000/- and this shall also attract interest @ 7.5% from the date of petition till the date of payment. The apportionment of liability shall be as determined already, namely, 75% on the insurer of the car and 25% by the owner and insurer of the truck.

4. As regards the liability of the insurer of the car, learned counsel appearing for the insurance company would plead that it was only an act policy and there was no liability for any passenger in the car. I have seen through the terms of the policy which I see to be a comprehensive policy and not a third party insurance. The issue of liability of insurer of a passenger in a private car came to notice where the passengers stood exposed to a risk of not being covered after the decision of the Supreme Court in Pushpabai Purshottam Udeshi Versus Ranjit Ginning and Pressing Company, reported as 1977 ACJ 343 (SC). After this judgement FAO No.471 of 1996 -4- there had been a Circular issued by the Tariff Advisory Committee on

17.3.1978 under Circular M.V. No.1 of 1978 and I will reproduce the Circular and details hereunder:- “Circular M.V. No.1 of 1978 Bombay `17th March 1978 I am directed to inform that the advices have been received from the Tariff Advisory Committee to the effect that since the industry had all these years holding the view on a liability the same practice should continue. In order to make the intention clear, Insurers are requested to amend clause 1(a) of Section II of the Standard Private Car Policy by incorporating the following words after the words 'death of bodily injury to any person' appearing therein: 'Including occupants carried in the motor car provided that such occupants are not carried for hire and reward' I am accordingly to request Insurers to make the necessary amendment on sheet 38 of the Indian Motor Tariff pending reprinting of the relevant sheet. All existing policies may be deemed to incorporate the above amendment as the above decision is being brought into force with effect from 25th March 1977.”

5. The Circular makes it clear that the intention was never to deny cover for liability to occupants in a private car under a Comprehensive Policy. However, in view of the Supreme Court judgement, lest it be applied even for a Comprehensive Policy, it was decided to amend the Policy to clarify and expressly hold out that such occupants are covered under a Comprehensive Policy. Accordingly, the Policy working in Sec.II FAO No.471 of 1996 -5- was modified as follows:- “...the Company will indemnify the insured .......... against all sums which the insured shall become legally to pay in respect of:- (i) death of or bodily injury to any person including occupants carried in the vehicle (provided such occupants are not carried for hire or reward) but except so far as it is necessary to meet the requirement of Motor Vehicles Act, the Company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured”.

6. It must, in terms of the Circular, be that no insurance company would ever take the plea of want of liability till it seemed like it became possible after the judgement of the Supreme Court in Tilak Singh's case. I would to rest the liability on the insurance company to cover the risk under a comprehensive insurance policy to passengers in a private vehicle. Infact, I notice there was not even a plea in the written statement denying liability to a risk of a passenger in a vehicle, except that the written statement contains by way of general defence that there was no liability for the insurance company and that the negligence was on the part of the driver of the truck. The liability shall, therefore, be to the extent of 75% of what has been determined in para 3 above on the insurer of the car.

7. As regards, the claim in FAO No.472 of 1996 arising out of injuries to yet another passenger, the injuries recorded are through a certificate Ex.P1 which are as under:- “Certified that Sh.Vajinder Kumar S/o Sh.Sumer Chand R/o C IV-2536 Court Road Jagadhri appearing before the board today dated 8.9.94 Aged 49 years. His percentage of handicap 40% Forty Percent. Traumatic amputation Left Index Middle FAO No.471 of 1996 -6- & ring finger mild limitation of elbow movements with limitation of Pronation and supeioration (left fore arm). His specimen signature is given below and attested.” The injuries were fracture of the left humerus bone and fracture of the left forearm and fractures were reduced by open reduction by the surgery conducted two times and there was also a evidence to the effect that there would be a requirement for another operation as well. For two of the fractures I would take the pain and suffering of Rs.7500/- and for the two surgeries I would quantify Rs.5000/- each and for amputation suffered and surgically corrected, I will provide for another Rs.5000/-, I will take towards pain and suffering Rs.25,000/- as payable. The 40% disability must be taken as functional disability and now the Hon'ble Supreme Court has now explained in the judgement in Raj Kumar vs. Ajay Kumar and another, 2010 (12) Scale 265 that the Court shall invariably see how particular disability has impacted the person's earning capacity. In case that results in amputation, the first guide for determining the loss of earning capacity would be in the manner provided under Schedule I Part II of the Workmen's Compensation Act, which sets out for the loss of index finger at 14%, loss of middle finger at 12% and the ring finger at 7%. On the whole, there is loss of earning capacity to the tune of 33%. I will take, therefore, for the disability assessed, the loss of earning capacity as 33%. The issue whether the continuance of a person in an employment is also to be taken as having resulted loss of earning capacity must be understood in the context on how if a person were to seek an employment, such injury or amputation could mitigate his employment chances. This has been dealt with extensively in a judgement of this Court in FAO No.3432 of 2009, decided on 29.09.2010 FAO No.471 of 1996 -7- titled 'New India Assurance Company Limited Versus Smt. Santosh and others. There is evidence to the effect that the person who had Rs.3000/- as income and since in this case the person was self-employed, working as commission agent, I will take the loss of earning capacity at 30% and for a person who was of the age of 48 years, the appropriate multiplier would have been 13. The loss of earning capacity would consequently be Rs.1,40,400/-. There is evidence to the effect that he had spent Rs.52,600/- for medical expenses, I will retain the same. There is no definite evidence relating to transportation and attendant charges, but having regard to the fact that the claimant was hospitalized for about 2 weeks, I will take attendant charges at Rs.1000/- and for special diet I will allow to him another Rs.2500/-. The total amount of compensation shall, therefore, be Rs.1,96,500/-. The amount of compensation determined will also bear interest @ 7.5% from the date of petition till the date of payment. The apportionment of liability shall be in the same manner as referred in the other case and shall be borne by the respective insurers in the ratio of 75:25 with respect to the insurers of the car and the truck.

8. The appeal is allowed to the above extent. December 17, 2010 Gulati (K.KANNAN) JUDGE