Bookmark
PDF
Share
CaseIQ

The Oriental Fire And General Insurance Co. Ltd., Agra And Another v. Dhanno And Others

Madhya Pradesh High Court

Feb 22, 1986

Judgment

Subsequent
References

CaseIQ

Important Paras

Please sign up to view Important Paras.

Smart Summary (Beta)

Structured Summary of the Provided Opinion

Factual and Procedural Background

The claimants are the legal representatives of a person who was employed by the owner of the motor vehicle at the time of the accident. The facts are not disputed: the vehicle, driven by a driver who was not the deceased, over-ran a road-divider, lost balance and jolted; the deceased, who was travelling in the back of the truck, was thrown off and died instantaneously. The Tribunal found rash and negligent driving, relying on the doctrine of res ipsa loquitur. An award of Rs. 46,000/- was made by the Tribunal.

The insurer appealed (counsel Shri Singhal appearing for the insurer) contending that the insurer's liability should be limited to the amount payable under the Workmen's Compensation Act (the First Schedule figure of Rs. 21,600/- was cited). The court was asked to reconsider its earlier view expressed in Oriental Fire and General Insurance Company's case (Misc. Appeal No. 75 of 1983, decided on 4-12-1985) and to review other decisions relied upon by the parties. The court reconvened oral submissions, considered statutory provisions and precedents, reviewed the insurance policy endorsement (I.M.T. 16), and considered relief on interest and costs.

Legal Issues Presented

Whether the insurer's liability, once fixed under the Motor Vehicles Act, is limited in extent to the amount payable under the Workmen's Compensation Act (i.e., whether the insurer's liability should be capped at the Workmen's Compensation schedule amount).
Whether the Tribunal's award included impermissible items such as loss of consortium and/or pain and suffering to the parents of the deceased, thus warranting interference.
What rate of interest should be applied to the award given the delay in payment (challenge to 9% as inadequate; claim for 12% was made).
Whether costs should be awarded to either party in the appeal.

Arguments of the Parties

Insurer's (Shri Singhal) Arguments

The insurer's liability must be limited to the compensation payable under the Workmen's Compensation Act; the Tribunal's larger award exceeds that statutory limit.
Relied on judicial authorities (including New India Assurance Co. Ltd. v. Kamparaju Sunkamma; Huseinbhai Ahmedbhai Memon v. Mangiben; and Oriental Fire & General Insurance Co. v. Alamelu) which, he submitted, support the view that insurer liability is limited to Workmen's Compensation amounts.
Relied on Proviso (ii) to section 95(1)(b) of the Motor Vehicles Act and on the policy endorsement I.M.T. 16 (stating the company shall indemnify the insured against legal liability under the Workmen's Compensation Act) as grounds to contend for a limited extent of insurer's liability.
Urged that at least on two grounds the award was wrong and deserved interference: (a) no award could be made for loss of consortium and/or pain and suffering to the parents of the deceased; and (b) other aspects of the Tribunal's computation.
Sought costs in part by reference to efforts made by the insurer to settle the matter out of court.

Claimants' (Shri Haswani) Arguments

Maintained that the court's earlier view (in Oriental Fire and related decisions of this Court and certain High Courts) supports not limiting the insurer's liability to the Workmen's Compensation schedule amount; thus the full award should stand.
Relied on the court's own precedent (MPSRTC v. Khargobai) and on J. Sivammal v. Managing Director, Pandian Roadways (AIR 1985 SC 106) to argue that if any component of the award was wrongly allowed, the court could recompute the compensation rather than wholly set aside the award.
Adduced unchallenged factual material: the deceased was 25 years old, the sole earning member of a family with eight dependents, earning Rs. 450/- per month; asserted that the Tribunal's grant of dependency for only 15 years was palpably wrong but that the total award of Rs. 46,000/- should be sufficient to cover the claimants' loss of dependency.
Contended that the interest of 9% awarded by the Tribunal was inadequate. Relying on this Court's decision in Shantibat ((1986) 1 MPWN 54), he urged that interest should be enhanced to 12% per annum from the date of the application until payment.
Opposed the award of costs in the circumstances described.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Oriental Fire and General Insurance Company's case (Misc. Appeal No. 75 of 1983, decided 4-12-1985)	The court's earlier view on the issue now urged (the opinion previously expressed by the same court).	The court referred to and remained guided by its prior view; it reconsidered the issue but did not depart from that earlier conclusion.
New India Assurance Co. Ltd. v. Kamparaju Sunkamma (1981 Acc CJ 441 (Andh. Pra.))	Held that while a claim by legal representatives under the Motor Vehicles Act is maintainable, the insurer's liability is limited to the amount allowed under the Workmen's Compensation Act.	The court considered this authority but expressed reservations about its reasoning (noting para 6 lacked detailed reasoning) and declined to adopt its view as persuasive enough to change the court's earlier position.
Huseinbhai Ahmedbhai Memon v. Mangiben (1984 Acc CJ 701; AIR 1985 NOC 73 (Guj.))	The insurance company is liable to satisfy the award to the extent of the liability of the owner under the Workmen's Compensation Act.	The court acknowledged the statement of law but did not find it sufficient to overturn its own prior conclusion.
Oriental Fire and General Insurance Co. v. Alamelu (AIR 1983 Mad 221)	Observed that the limit of liability in Section 95 of the Motor Vehicles Act applies and that the insurer's liability is limited to the amount payable under the Workmen's Compensation Act in relation to that employee.	The court noted this authority as supporting the limiting view, but after reading statutory provisions and policy wording, the court did not accept this view as controlling for the instant appeal.
MPSRTC v. Khargobai (1985 MPWN 567)	Authority from the same bench/court relied upon concerning how to treat components of awards and the court's ability to recompute or test validity of awards.	The court stated it was bound by its own view in this decision and applied the principle that if an item in the award is wrongly allowed, the court can recompute rather than wholly upset the award.
J. Sivammal v. Managing Director, Pandian Roadways (AIR 1985 SC 106)	Support for the approach that the court can recompute compensation and test the validity of awards on particular counts.	The court cited this Supreme Court authority as consistent with its approach and used it to justify recomputation/testing rather than total interference.
Shantibat ((1986) 1 MPWN 54)	Addressed adequacy of interest awarded and circumstances for awarding higher interest where payment was delayed.	The court applied this decision to hold that interest at 12% per annum (instead of 9%) was appropriate from the date of the application until payment, given the delay and the partial payment facts described.

Court's Reasoning and Analysis

The court undertook the following analytical steps, based on the text of the opinion:

Reviewed the undisputed facts and confirmed the Tribunal's finding of rash and negligent driving (res ipsa loquitur; vehicle over-ran the divider and the deceased was thrown from the truck and died instantaneously). Owner liability for negligent driving by the driver was accepted.
Identified the central contention of the insurer: that insurer liability should be limited in quantum to what the Workmen's Compensation Act prescribes. The insurer relied on authorities to that effect and on provisions of the Motor Vehicles Act (proviso to Section 95(1)(b)) and on the insurance policy endorsement (I.M.T. 16) which states the company shall indemnify against legal liability under the Workmen's Compensation Act.
Examined the precedents cited by the insurer. The court noted that several decisions supported the limiting view, but found at least one of them (Kamparaju Sunkamma) lacked detailed reasoning on the point; overall the court did not find the precedents sufficient to induce a departure from its earlier view.
Interpreted the relevant statutory language (Proviso clauses to Section 95(1)(b) of the Motor Vehicles Act). Reading Clause (ii), the court found no textual indication that when liability is fastened on the insurer the extent of liability must be confined to the Workmen's Compensation Act amount; Clause (ii) addresses situations where a policy is required. Reading Clause (i), the court concluded it speaks to the nature of liability (i.e., that a policy is required) and not to its extent. Consequently, statutory language did not compel the limiting construction urged by the insurer.
Examined the insurance policy endorsement (I.M.T. 16) relied on by the insurer. The endorsement stated the company shall indemnify the insured against legal liability under the Workmen's Compensation Act; the court observed that this wording did not expressly reserve or cap insurer liability to the Workmen's Compensation amount.
Addressed the insurer's contention that parts of the Tribunal's award (loss of consortium and/or pain and suffering to the parents) were not maintainable. The court noted it was bound by its prior view (MPSRTC v. Khargobai) and by the Supreme Court authority (J. Sivammal) that if an item in an award is wrongly allowed the court may recompute the award rather than wholly set it aside. The court declined to set aside the award on those grounds.
Assessed the compensation and dependency facts: the deceased was 25, sole earner, eight dependents, earning Rs. 450/month; although the Tribunal allowed dependency for 15 years (which the court found palpably low), the total award of Rs. 46,000/- was considered by the court to be sufficient to cover the claimants' loss of dependency.
On the point of interest, the court accepted the claimant's reliance on Shantibat and found that 9% was inadequate in the circumstances. Given partial payment of Rs. 10,000 only after three years and the delay overall, the court directed that interest at 12% per annum be awarded from the date of the application until payment of the modified award.
On costs, although the court initially found a prayer for costs reasonable, it accepted the insurer's argument that it had tried to settle and that the claimant's counsel had insisted on an immediate decision; in those circumstances the court declined to award costs.

Holding and Implications

Holding: The court held that the insurer must discharge its liability in full under the Tribunal's award (the award being for Rs. 46,000/- as made by the Tribunal) and that the insurer must pay interest at the rate of 12% per annum from the date of the application until the date of payment of the award as modified by the court. The court declined to award costs.

Implications:

Direct effect on the parties: the insurer is ordered to pay the full Tribunal award of Rs. 46,000/- together with interest at 12% per annum from the date of the application until payment; no costs are to be paid by either side pursuant to this order.
On the broader legal question of whether insurer liability is limited to the Workmen's Compensation Act schedule amount, the court reaffirmed its earlier view and, after statutory and contractual examination, did not adopt the contrary line of authority as controlling for this appeal. The opinion does not state that it is laying down a new precedent; rather, it adheres to the court's prior view and applies existing authority on recomputation and interest where applicable.

Note: This summary is confined strictly to the matters expressly stated in the provided opinion. No facts, rulings or inferences beyond the text have been added.

Show all summary ...

1. The point urged in this appeal is concluded by the view 1 have already taken in the matter in the Oriental Fire and General Insurance Company's case (Misc. Appeal No. 75 of 1983, decided on 4-12-1985). Shri Singhal has made forceful submissions to contend that I may have a second look at the provisions and have a look also at the decisions cited. I have to do that and I have done that.

2. The facts, which are not disputed in this case, are that the claimants are legal representatives of a person who was in the employment of the owner of the motor vehicle on the date of the accident. There is no serious contest also on the question as to whether the owner of the vehicle incurred liability on account of rash and negligent driving thereof by the driver, who indeed, is not the person deceased. Much labour need not be expended either to sustain the finding of the Tribunal that there was a case proved of rash and negligent driving because of the doctrine resipse loquitur being invoked. The vehicle over-ran the road-divider and failing to keep the balance, it got a jolt, whereby the deceased, who was travelling in the truck in the back side, was thrown off the truck and died instantaneously.

3. The short contention of Shri Singhal, counsel appearing for the Insurer, is that the liability of the insurer must be limited to the amount of compensation the deceased was entitled under the provisions of the Workmen's Compensation Act. In this case, a sum of Rs. 46,000/- has been awarded, which sum, according to Shri Haswani is in excess of the amount contemplated in the First Schedule of the Workmen's Compensation Act. which entitles the legal representatives of the deceased to get a sum of Rs. 21,600/- only.

4. Counsel has placed reliance, despite what I have observed in Oriental Fire and General Insurance Company Ltd. (supra) for my consideration, on three decisions to support his contention. In 1981 Acc CJ 441 (Andh Pra). (New India Assurance Co. Ltd. v. Kamparaju Sunkamma), the view taken was that although claim by the legal representatives of an employee under Section 110 of the Motor Vehicles Act, 1939, for short, the 'Act', was maintainable, the limit of liability of the insurance company, would be limited in its extent to that allowed under the Workmen's Compensation Act. This view indeed positively and affirmatively and very strongly supports the contention pressed by Shri Singhal, but with due respect, I am not convinced and I do not feel inclined to take a different view, departing from the view earlier taken. This, I saw reading para 6 of the report, in which I read no detailed reason for the view taken, which would definitely indicate that the point was not at all in issue. This is what I read :

"The question that then remains is, as to what is the limit of liability of the insurer. The Tribunal below has awarded a sum of Rs. 12,500 as compensation under Section 110-A of the Act and directed both the respondents 1 and 2 viz., the owner of the vehicle and the insurance company to pay the said amount. But under the proviso to Section 95(1)(b) of the Act, the liability of the insurer is limited to the liability under the Workmen's Compensation Act, and the insurer is absolved from all liability arising thereunder. But the liability of the employer under the Workmen's Compensation Act, for injury to the workman has not been determined."

The same position obtained in the decision reported in 1984 Acc CJ 701 : (AIR 1985 NOC 73) (Guj), Huseinbhai Ahmedbhai Memon v. Mangiben, where the point is deilt with at para 10 of the report. This is what is all stated by their Lordships to deal with the point:

"We entirely agree with this contention that the respondent No. 3, insurance company is liable to satisfy the award to the extent of the liability of the owner under the Workmen's Compensation Act."

The third decision is in the case of Oriental Fire and General Insurance Co. v. Alamelu, AIR 1983 Mad 221, wherein also, in dealing with the point at para 7 of the report, it was similarly observed as follows :

"However, the limit of liability contained in Section 95 of the Motor Vehicles Act will apply as regards the quantum of compensation, and the compensation under Section 95 of the Motor Vehicles Act is limited to the amount payable by the insurer under the Workmen's Compensation Act in relation to that employee. In this case, the Tribunal has specifically held that under the Workmen's Compensation Act, the compensation payable by the appellant will come to Rs. 18,000/- Therefore, the appellant's liability as an insurer has to be limited only to the sum of Rs. 18000/-"

5. I would propose, therefore, to read the relevant provisions to see whether the view taken in the decisions cited have a reasonable basis so that I should revise my own view. Shri Singhal has placed reliance on Clause (ii) of the Proviso to Sub-section (1)(b) of Section 95 of the Act, which is in the following terms:

"Provided that a policy shall not be required--

(ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the death of or bodily injury to person being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises".

I do not read anything in the provision quoted above to indicate that when a liability in terms thereto is fastened on the Insurer, the extent of liability should not extend beyond what is provided in the Workmen's Compensation Act. On the other hand, the provision evidently deals with the situation in which death or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises". Still, I may also read Clause (i) of the Proviso, the relevant part whereof is as follows :

"to Cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee, arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act. 1923 (8 of 1923), in respect of the death of, or bodily injury to, any such employee."

The provision aforequoted explicitly accepts the requirement of a Policy in the cases contemplated thereunder, and it has also not excluded the insurer from entering into a contract of indemnity to cover circumstances and conditions embraced by the provision. Indeed, because of this statutory entitlement, an employee or his legal representatives is/are entitled to exercise option under Section 110-AA to sue the owner of the motor vehicle either under the Workmen's Compensation Act or file claim against him under the Act, as contemplated under Sections. 110 and 110-A. Reading Clause (i) carefully, 1 do not see any inhibition or limitation even therein to suggest that when a liability is taken by an insurer thereunder, the extent of liability in such a case would he limited to that as allowed under the Workmen's Compensation Act. What it has merely said is about the nature of the liability and not about the extent of the liability. Shri Singhal, therefore, placed for my consideration the Insurance Policy and relied on endorsement No. I.M.T. 16, which is to the effect that

"Company shall indemnify the Insurer against his legal liability under the Workmen's Compensation Act."

Herein also, I do not read any limit of liability being explicitly reserved by the Insurer by the tennis of the contract that is entered with the owner of the motor vehicle.

6. Shri Haswani, counsel appearing for the claimants, on the other hand, has strongly urged that the view taken by me finds support not only from decisions of this Court itself, but also the decisions rendered by the Bombay and Allahabad High Courts. That indeed is true and 1 must say that while deciding Oriental Fire and General Insurance Company's case (supra). 1 did derive considerable assistance from those decisions, to which 1 have made a reference also in my judgment.

7. At this stage of dictation, Shri Singhal stands up to urge another point, contending that at least on two grounds, the award being wrong, my interference in the matter is warranted. No award could be made for loss of consortium and/or pain and suffering to the parents of the deceased. That may be so, but I must accept the contention of Shri Haswani, who submits that I am bound by my own view expressed in MPSRTC v. Khargobai. 1985 MPWN 567. I have taken the view, which Hind very much in line with the view taken by their Lordships in J. Sivammal v. Managing Director. Pandian Roadways, AIR 1985 SC 106, If on any count, the claim is wrongly allowed, it is open to me to recompute the compensation and test the validity of the award as regards its corpus. Shri Singhal found it difficult to contest the admitted fact that the deceased was aged only 25 years at the time of the accident and he was the sole earning member of the family having eight dependents. It is also in evidence that he used to earn Rs. 450/- per month. He died surviving him, his wife, children and aged parents and they could depend oh him for another 35 years. The Court granted dependency for only 15 years, which was palpably wrong as the view that now prevails with the Apex Court is that the Indian life is longer now and also more valuable. That being the position, the total sum awarded. which is Rs. 46,000/- must be considered to be sufficient to cover even the loss of dependency to which the claimants are entitled. The sum awarded being within the statutory liability of the Insurer, the latter must discharge its liability in full under the award.

8. Shri Haswani has also relied on a decision of this Court in Shantibat, (1986) 1 MPWN 54 to submit that the claim awarded needs modification in that an interest of 9% was very inadequate in the facts and circumstances of the case. A small part of the claim amounting to Rs. 10,000/- only was paid to the claimants after three years of the accident. That being the position, there is no escape from the conclusion that Shantihai (supra) squarely applies to the facts of the instant case and the award must stand modified with the direction that the Insurer shall pay not only the full amount awarded as compensation, but also interest at the rate of 12% per annum from the date of the application till the date of payment made of the award as modified in this Court,

9. Prayer for costs is made, which, I found reasonable at some stage. However, Shri Singhal reminded me of his effort to get the matter settled out of Court and also the fact that it is Shri Haswani who wanted instant decision and short-circuited his efforts. In that view of the matter, I do not consider it to be fit case to award any costs.