MANU/OR/0288/1975

Equivalent Citation: 1975ACJ355

IN THE HIGH COURT OF ORISSA AT CUTTACK
M.A. Nos. 72 and 90 of 1971
Decided On: 22.04.1975
Appellants: Prabhudayal Agarwal
Vs.
Respondent: Saraswati Bai and Anr.
Hon'ble Judges/Coram:
S.K. Ray, J.
Counsels:
For Appellant/Petitioner/Plaintiff: C.V. Murty, Adv. in M.A. 72 of 1971 and S.S. Basu, Adv. in
M.A. 90 of 1971
For Respondents/Defendant: M.S. Roy, D.P. Mohapatra and M. Sinha, Advs.
Subject: Motor Vehicles
Acts/Rules/Orders:
Motor Vehicles Act, 1939 - Section 95, Motor Vehicles Act, 1939 - Section 95(1), Motor Vehicles
Act, 1939 - Section 95(2), Motor Vehicles Act, 1939 - Section 96, Motor Vehicles Act, 1939 -
Section 110F
Cases Referred:
Clive Insurance Co. v. Jogendra Singh 1972 A.C.J. 295; Assam Corporation v. Binu Rani Ao and
Ors. MANU/GH/0020/1974 : 1974 A.C.J. 381; C. Narayanan v. Madras State Palm Gur
Sammelan and Anr. MANU/TN/0144/1974 : 1974 A.C.J. 479; Madras Motor and General
Insurance Co. v. Kztanreddi Subbareddy and Ors. MANU/AP/0090/1974 : 1975 A.CJ. 95;
Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt and Ors. MANU/SC/0009/1966 : 1966
A.C.J. 89; Ormord and Anr. v. Crossville Motor Service Ltd. and Anr. (1953) 2 All E.R. 753; The
Oriental Fire and General Insurance Co. Ltd. v. Kamal Kamini Das and Ors.
MANU/OR/0013/1973 : 1972 A.C.J. 92; The Oriental Fire and General Insurance Co. Ltd. v.
Vanita Kalyani and Ors. MANU/OR/0278/1972 : 1972 A.C.J. 261
Disposition:
Appeal allowed
JUDGMENT
S.K. Ray, J.
1. Both these appeals arise out of an award made under Section 110B of the Motor Vehicles Act
(here in after referred to as the 'Act') on the basis of an application for compensation of Rs.
2,00,000/- made under Section 110A of the Act. M.A. 72 of 1971 has been filed by the insured
and is directed against that part of the award by which the insurer has been exonerated from all
liability, M.A. 90 of 1971 is by the claimant being aggrieved by the inadequacy of compensation
determined in the award. Both these appeals have, therefore, been heard analogously and will
be governed by this judgment.
2. On 24.11.68 a marriage party comprising of the deceased, Shankarlal Sharma, a boy of 19
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years, was coming from Rengali in the district of Sambalpur to Cuttack for the latter's marriage.
On its way, this party stopped at Nirgundi railway station at about 5 A.M. to enable some
members of the party to take bath. Just then the son of Prabhudayal Agarwal of Nayasarak,
Cuttack, reached there in the car bearing number O.R.U. 1021, belonging to his father, and
wanted to take the bride-groom, Shankarlal Sharma, in the car saying that he had been sent by
the bride's party to take him comfortably. At the outset the bride-groom, Shankarlal, was
unwilling to come in that car, but being further pressed by the son of Prabhudayal Agrawal he
agreed and the car came away to Cuttack carrying him. He was to marry the niece of one
Praha: lad Roy Sharma who was a salesman working under the said Prabhudayal Agarwal.
While the car was being driven on National High Way No. 5, at a spot one mile off from Nirgundi
railway station, it suddenly swerved towards the west flank of the road and somersaulted. As a
result of this accident Shankarlal Sharma died instantaneously on the spot. The mother of the
deceased, Saraswati Bai, filed the claim petition alleging that she was the recipient of pecuniary
benefit to the tune of Rs. 400/- per month from the deceased.
3. The insured was impleaded as opposite party No. 1 and the insurer, Commonwealth
Assurance Company as opposite party No. 2 in the claim case. The insured contested his
liability on the grounds that the deceased was a gratuitous passenger in his car and he was,
therefore, not liable to any compensation, that there was no rashness and negligence on the
part of the driver, that the deceased had no personal income or capacity to earn and thereby to
render any pecuniary benefit to the applicant and, as such, the compensation was high and
excessive The insurer contested the claim on the grounds that the deceased was a gratuitous
passenger and the insurance policy did not cover the liability of such a person.
4. The Claims Tribunal found that the accident was caused on account of rash and negligent
driving of the driver, and that the insured was liable to pay compensation as the accident was
caused by the driver in course of his employment. He held that the reasonable life expectation
of the claimant was 65 years and, as she was at the time of claim 45 years old, she could
reasonably be presumed to survive for 20 years more, and assessed the pecuniary benefit
which she was receiving from the deceased at Rs. 50/- per month, and, accordingly, awarded a
sum of Rs. 10,000/- as compensation against the insured. As regards the insurer, he held that
the insurance policy (Ext. 3) did not cover the liability of the insurer on account of the death
caused to Shankarlal Sharma, deceased, who was a gratuitous passenger in the insured car
and, as such, excluded opposite party No. 2 from all liability. In appeal, the insured has
contested that the Claims Tribunal was in error in excluding completely the insurer from liability
and that at any rate the Tribunal has erred on the excessive side in regard to determination of
the amount of compensation payable. The claimant in her appeal seeks an enhancement of her
claim to the extent of Rs. 57,000/-. She bases her claim for enhancement on two grounds:
firstly, the life expectation of the claimant should have been held to be 70 years and,
accordingly, the quantum of compensation should have been computed on the basis of the
claimant's life expectancy being for a further period of 25 years, and secondly, on the evidence
on record regarding the income of the deceased, the Tribunal should have held that the
pecuniary benefit which the claimant was receiving would be Rs. 166/- instead of Rs. 50/- per
month. Computing the compensation on the aforesaid basis as to the future span of life of the
claimant and the quantum of pecuniary benefit which she was receiving from the deceased, the
total amount of compensation should have been assessed at Rs. 57,000/-.
5. The first contention of Mr. Murty for the insured is that the insurance policy expressly insures
him against any liability which may be incurred by him in respect of death even of a gratuitous
passenger of his car, even though such risk was not required to be covered by Section 95 of the
Act, and, as such, the insurer will be liable to pay compensation for the death of Shankarlal
Sharma who was gratuitously traveling in the car at the time of accident. His alternative
contention is that the 'third party' would include a gratuitous passenger, being not a party to
the contract between the insurer, as one party to the contract, and the policy holder, as
another party to it and, therefore, the policy of insurance would cover risks of gratuitous
passenger as required to be covered by Section 95 of the Act.
6. A Division Bench of this Court has held in the case of Clive Insurance Co. v. Jogendra Singh
1972 A.C.J. 295 that a statutory policy mandatory required to be taken out in respect of a
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vehicle under Section 95 of the Act does not cover any liability which may be incurred by the
owner of the car in respect of death or bodily injury to any gratuitous passenger in that car,
unless the policy expressly stipulates to cover such a wider risk as the risk of liability arising in
respect of death or bodily injury to any such gratuitous passenger. I do not find anything in the
argument of Mr. Murty to take a view different from the one adopted by the Division Bench of
this Court in the aforesaid decision. On the contrary, the decision in Assam Corporation v. Binu
Rani Ao and Ors. MANU/GH/0020/1974 : 1974 A.C.J. 381 on which great reliance has been
placed by Mr. Murty does not take a view different from the one taken by the Division Bench of
this Court indicated above. The counsel for the insurer and the claimant appearing in that case
conceded that the policy required to be issued under Section 95 of the Act would not cover the
liability in regard to a gratuitous passenger and, therefore, the insurer is not liable to satisfy
any liability arising on account of death of a gratuitous passenger in the insured vehicle. The
case of C. Narayanan v. Madras State Palm Gur Sammelan and Anr. MANU/TN/0144/1974 :
1974 A.C.J. 479 on which Mr. Murty also relies does not run counter to the aforesaid view. The
first part of the argument of Mr. Murty must, therefore, be negatived. He, therefore, has fallen
back on the alternative argument, exclusively relying upon the decision of the Assam High
Court in Assam Corporation's case (Supra), that Sub-section (2) of Section 95 of the Act
prescribes the minimum requirement of an insurance policy and Section 96 of the Act places no
absolute bar in awarding compensation against the insurer, apart from that section in cases the
liability is not required to be covered by the statutory policy under Section 95(2)(b). He argues
that the provisions of Section 110 to 110-E provide a self-contained code for adjudicating upon
ail claims for compensation in respect of accidents involving the death of or bodily injury to
persons arising out of the use of motor vehicles and liability of the insurer for much claims, and
do not restrict such adjudication to claims arising out of death or bodily injury to third parties
only so far as the insurer is concerned. The decision of the Assam High Court in M/s. Assam
Corporation's case fully supports this argument. In that case the policy covered wider risk than
those prescribed under Section 95 of the Act contained a clause undertaking to indemnify the
insured for his liability in regard to the death of any person, obviously, including a gratuitous
passenger and their Lordships said:
In view of the scheme of the provisions of Sections 110 to 110-F of the Act as
mentioned above, the Tribunal is competent to make an award directing the insurer
to pay such compensation to the claimant for which the insured is found liable. This
is a statutory liability of the insurer and therefore the fact that there is no privities
of contract between the insurer and the third party, is of no consequence.
It has never been questioned by this Court in any case brought to my notice that it is beyond
the competence of an insurer not only to cover the risks statutorily required by Section 95 of
the Act to be covered but also to cover wider risks than those, for which there is no statutory
bar. Agreeing with the opinion of the Assam High Court expressed in M/s. Assam Corporation's
case, I would hold that the insurance company will be liable to pay such compensation for the
death of Shankarlal Sharma carried in the car gratuitously as the insured will be found legally
liable to pay, provided the policy covers this wider risk, and the Tribunal will be competent to
adjudicate upon such claim and pass an award against the insurer.
7. I am, therefore, now to consider the terms of the policy to see if any risk wider than the
statutory risk as been covered by it. The insurance policy (Ext. 3) comprises of three sections.
Liability to third party is dealt within section II of the policy. The material portions of clauses 1
and 4 thereof are quoted herein below.
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 cost and
expenses which the Insured shall become legally liable to pay in respect of:
(a) Death of or bodily injury to any person but except so far as is
necessary to meet the requirements of Section 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 the employment of such person by the
Insured.
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X X X
4. In terms of and subject to the limitations of the indemnity which is
granted by this section in connection with the motor car, the Company
will indemnify the Insured whilst personally driving a private motor car
not belonging to him and not hired to him under a hire purchase
agreement.
The second paragraph of the preamble of this policy declares that the policy is subject to the
terms, exceptions and conditions contained therein or endorsed or otherwise expressed
thereon. It is a comprehensive policy. First paragraph of section II of this policy provides that
the insurer shall 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 cost and expenses, which the insured
shall become legally liable to pay in respect of death or bodily injury to any person. It further
provides that the insurer 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 except so far as is necessary to meet
the requirements of Section 95 of the Act It is clear from the second part of sub-para (a) of
paragraph 1 of Section II, that the expression 'any person' in sub-para (a) is of wide and
unrestricted import and there is no reason to interpret it in a manner so as to exclude persons
traveling in the car.
Clause (b) (i) of Sub-section (1) of Section 95 of the Act uses the expression 'any person'.
According to proviso (ii) of Section 95(1)(b) of the Act liability in respect of death or bodily
injury to persons being carried in or upon or entering or mounting or alighting from the vehicle
at the time of occurrence need not be covered by the Act policy unless the vehicle is a vehicle in
which passengers are carried for hire or reward. There is no similar exclusion in the policy (Ext.
3). It is, thus, clear that while the insurer adopted the language of Section 95(l)(b)(i) it
pointedly, expressly and, therefore, purposefully omitted to exclude what is excluded by proviso
(ii) to Sub-section (1) of Section 95 of the Act. I, therefore, find no difficulty in holding that the
policy is wide enough to cover liability incurred by the insured in respect of death caused to the
deceased who was a passenger in the car at the time of accident. In construing identical terms
of an insurance policy, a single Judge of Andhra Pradesh High Court in the case of Madras Motor
and General Insurance Co. v. Kztanreddi Subbareddy and Ors. MANU/AP/0090/1974 : 1975
A.C.J. 95came to the aforesaid similar conclusion. Mr. M.S. Roy, learned Counsel for the
insurer, invites my attention to Ext. 4 for the purpose of showing that this document which is a
certificate of insurance, read with the policy itself would lead to a different conclusion. The
certificate of insurance states that the policy has been issued 'in accordance with the provisions
of chapter VIII of the Motor Vehicles Act'. He, therefore, contends that since Chapter VIII
containing Section 95 provides for compulsory insurance policy from whose operation risks of a
gratuitous passenger is excluded, should govern the meaning of paragraph I of Section II of the
policy. Such a contention of my mind is not tenable. Chapter VIII of the Act while providing for
a compulsory insurance policy in accordance with Section 95, Sub-section (1) also permits the
policy to cover any other contractual liability. Therefore, covering the risks of liability arising out
of death to gratuitous passengers would be providing for a contractual liability which not being
repugnant to anything in Chapter VIII, is also in accordance with it.
Mr. Roy further contends that there is no endorsement attached to the policy as a part of it that
in consideration of payment of any additional premium, the company undertook to pay
compensation for death of a gratuitous passenger under the policy. He has invited my attention
to a book called Indian Motor Tariffs which contains the tariffs as administered by the
miscellaneous sub-committees of the four Regional Committees of Tariff Advisory Committee in
Bombay, Calcutta, Delhi and Madras. Calcutta region includes Orissa. The comprehensive
schedule of premium for private car in respect of risks covered by the policy will be seen on
sheets 20 to 22 of the book. Ext. 3 would show that the premium of Rs. 610/- has been
charged on the policy and from the tables it will appear that additional premium is required to
be paid if the insured likes to have extra benefits under the policy and in the event of payment
of such additional premium, necessary prescribed endorsements will be attached to the policy.
The rates of additional premium for extra benefits will be seen on sheets 26 and 27 of the book
and the prescribed endorsement Nos. 4(a) to 5 in respect of such extra benefits will be seen on
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sheets 157 to 162. Absence of any prescribed endorsements which would have been normally
expected if the policy had conferred extra benefits by covering liability arising in respect of
death to gratuitous passengers and payment of lower premium of Rs. 610/- together would
indicate that the parties never intended that the insurer was to indemnify the insured against
any sums for which the insured shall become legally liable to pay in respect of death of a
gratuitous passenger. It may be that the inference which is indirectly derivable from these
aspects of the matter is what Mr. Roy suggests and it may be that if paragraph 1 of Section II
wanted to indemnify the insured in respect of death of gratuitous passenger, some extra
premium should have been paid and some prescribed endorsement should have been attached
to the policy; nevertheless omission to pay the requisite premium or to attach the required
endorsement cannot override the plain meaning of the term of paragraph 1 of Section II. The
default in charging higher premium may be ascribed to the negligence of the insurer for which
he is to suffer. The insurance policy being a matter of contract between the insurer and the
insured, the plain and unambiguous meaning of contractual terms embodied in it cannot be
controlled by demand and payment of a particular rate of premium. For all we know, the insurer
might have made a concession in the matter of rate of premium. The Indian Motor Tariffs
contains recommendations of Tariff Advisory Committee apparently for the guidance of various
Insurance Companies and cannot 'and do not fetter contractual freedom of the Insurance
Companies. Therefore, nothing contained there in can be utilized to interpret the terms of
contract which are unequivocal in language, expression and meaning. I am, therefore, not
impressed by this line of argument of Mr. Roy and I am unable to hold that the Insurance
Company has not undertaken any non-statutory liability under the policy of insurance (Ex:. 3).
8. From the aforesaid discussion my firm conclusion is that though, as a matter of law, the
liability in respect of a gratuitous passenger like the deceased is not required to be covered by a
compulsory policy under Clause (b) of Sub-section (2) of Section 95 of the Act, nevertheless,
the insurer by an express provisions in the policy, has covered wider risks by making him liable
to indemnify the insured against all sums which the insured shall become legally liable to pay in
respect of death of the deceased. In view of this finding,' appeal is bound to be allowed and the
insurer is bound to indemnify the insured against all liability which may be found to have been
incurred, in this case, in respect of the death of the deceased.
9. The next question that follows for consideration is the liability of the insured, if any and its
extent. The owner of the vehicle (insured) was opposite party No. 1 in the claim case. In his
written statement he never took the plea categorically that his vehicle was not being driven by
his driver with his consent or for his own purposes or for purposes in which he had no interest
or concern. As it appears from the evidence, the owner's son had brought the car to carry the
bride-groom, to Cuttack, and obviously with the permission of the owner. Therefore, the
deceased had become a passenger by express invitation on behalf of the owner. There is also a
presumption, of course a rebuttal one, that a vehicle is driven on the master's business and by
his authorised agent or servant. In the instant case this presumption is further strengthened by
the evidence on record that the owner had lent his car to accommodate one of his employee
(would be father-in-law of the deceased) in bringing his would be son-in-law to Cuttack for
marriage. That, in my opinion, would amount to serving a purpose of the owner and he would
obviously be liable for any negligence on the part of the driver and the driver was, therefore,
acting in course of his employment while driving the car at the time of accident. It is well
settled that a master is vicariously liable for the act of his servant acting in course of his
employment. The scope of employment of a servant need not of course be viewed narrowly, but
the essential element that the wrong must be committed by the servant during the course of
employment should always be present. It is not essential always that the act of the servant or
agent should be for the master's benefit. The doctrine of vicarious liability which was enunciated
in English law as far back 1868 has undergone some expansion. The law on the subject has
been thoroughly discussed in the case of Sitaram Motilal Kalal v. Santanuprasad Jaishankar
Bhatt and Ors. MANU/SC/0009/1966 : 1966 A.C.J. 89The latest enunciation of that law as
extracted in the said case is in Ormord and Anr. v. Crossville Motor Service Ltd. and Anr.
(1953) 2 All E.R. 753 would like to extract the opinion of Lord Denning which was expressed in
the following words:
It has often been supposed that the owner of a vehicle is only liable for the
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negligence of the driver if that driver is his servant acting in the course of his
employment. This is not correct. The owner is also liable if the driver is, with the
owner's consent, driving the car on the owner's business or for the owner's
purposes.
...The law puts an especial responsibility on the owner of a vehicle who allows it to
go on the road in charge of someone else no matter whether it is his servant, his
friend, or anyone else. It is being used wholly or partly on the owner's business or
for the owner's purpose, the owner is liable for any negligence on the part of the
driver. The owner only escapes liability when he lends it or hires it to a third person
to be used for the purposes in which the owner has no interest or concern.
For the aforesaid reasons, in my opinion, the liability of the insured is quite clear.
10. The only question now left for consideration is the extent of liability, in other words, as to
the quantum of compensation payable. The Claims Tribunal has applied the correct principle of
law in determining the quantum of compensation The main principle to be taken into
consideration is reasonable expectation of pecuniary benefit from the continuance of life of the
deceased taking into account the uncertainty of life both of the claimant and of the deceased.
The Tribunal has, in the instant case, fixed the reasonable life expectation of the claimant at 65
years. Mr. Murty has brought to my notice a number of cases where life expectation has been
fixed at 60 years. But that is a matter which cannot be determined by precedents. Each case
must be determined on the basis of facts proved. There can be no cut and dried rule deducible
from the decided cases that the life expectation of a claimant in all cases should be at a fixed
number of years. Hinged with the fact of life expectation of the claimant is the question of the
quantum of pecuniary benefit which the claimant might reasonably expect or might reasonably
have expected from the deceased. P.W. 3 has testified that a year and half prior to his death,
the deceased had started his shop at Rengali and that after about six months of
commencement of such business he was getting a net income of Rs. 400/- per month. P.W. 4
has deposed to the same effect and had further testified that he was meeting all expenses of
the family out of the income from his shop. P. W. 5's evidence is also to the same effect. P.W. 6
is obviously the claimant. She has stated that the deceased used to pay Rs, 250/- per month to
her to meet the family expenses. Apart from that, he was also purchasing clothes for the
members of the family whenever the need arose. There has been no cross-examination of P.
Ws. 3 and 5 with regard to quantum of net income of the deceased. There was no reasonable
basis for the Claims Tribunal to discard this one sided evidence and to hold that the pecuniary
benefit which the claimant might reasonably expect was Rs. 50/- per month. The more
appropriate finding should be that the deceased was contributing a sum of Rs. 250/- to the
family giving all allowances for exaggeration in the matter of the net income earned by the
deceased. This amount was-spent for the entire family consisting of three persons. Considering
that the entire amount must have been equally spent over the three members, the pecuniary
benefit of the claimant and her husband would come to Rs. 166/- per month. Out of the money
contributed for the family expenses it is natural to expect that a greater share of it must have
been spent for the benefit of the earner and in that view it will be reasonable to hold that the
claimant and her husband were together deprived of pecuniary benefit of Rs. 150/- per month
on account of the death of the deceased. Therefore, the reasonable expectation of pecuniary
benefit by the claimant alone would come to Rs. 75/- per month As to the life expectation of the
claimant, the evidence of P W. 3 is that the grandfather of the deceased died at the age of 70
years and that the maternal grand-father who was alive on the date of deposition, that is to say
he was then 80 years old. Thus, both on the father's side and on the mother's side the
longevity of the family was more than normal and after taking into consideration factors like
uncertainty of life and accidental death, it would not be unreasonable to expect the claimant to
survive up to her 70th year. I would accordingly, assess span of life of the claimant at 70 years
in this case. Since the claimant was 45 years old at the time of her claim, she had 25 years
more to live. Thus, the applicant has been deprived of financial benefit of Rs. 22,500/- for a
period of 25 years. But making an allowance for all risks of accident and death, I think that a
sum of Rs. 20,000/- should be awarded as compensation.
The claimant is also entitled to interest on the award from the date of its passing till the date of
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payment. It has been so held by this Court in the cases of The Oriental Fire and General
Insurance Co. Ltd. v. Kamal Kamini Das and Ors. MANU/OR/0013/1973 : 1972 A.C.J. 92and
The Oriental Fire and General Insurance Co. Ltd. v. Vanita Kalyani and Ors.
MANU/OR/0278/1972 : 1972 A.C.J. 261 Thus, out of the total amount of compensation of Rs.
20,000/- payable to the claimant, Rs. 10,000/- has to be deducted as awarded by the Tribunal.
The claimant is entitled to a further sum of Rs. 10,000/- plus interest on the whole amount of
Rs. 20,000/- from the date of payment. As I have already held that the insurer had undertaken
to indemnify the insured against all sums which the insured shall become legally liable to pay in
respect of death of any person, the entire amount of compensation adjudged shall be paid by
the insurer with interest at 6 per cent per annum on the said sum from the date of application
till the date of payment. Accordingly, M.A. 72 of 1971 also succeeds.
11. In the result, M.A. 90 of 1971 and M.A. 72 of 1971 are allowed. The insurer is liable to pay
the costs, in both the appeals to the successful Appellants.

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