Sardar Ishwar Singh, Truck Owner And Another v. Himachal Puri And Others

1. This first appeal filed under Section 110D of the Motor Vehicles Act, 1939 (hereinafter referred to as THE ACT) is by the owner and the driver of the goods vehicle No. CPI-6202 and is directed against the award dated 18-9-1984 passed by Shri P. Mahta, Motor Accident Claim Case No. 16 of 1982 awarding a sum of Rs. 12,500/- in favour of Respondent Nos. 1 to 3 as compensation for accidental death of Shri Laxman Puri, Smt. Jamunabai and Smt. Nageser Bai.

2. The respondents by filling their claim before the learned tribunal under Section 110 of the Act submitted that the truck aforesaid was being driven by the appellant No. 2 in a very high speed and therefore in rash and negligent manner and met with an accident killing the aforesaid three persons who had been taken as passengers. It was alleged that the appellant No. 2 lost control of the truck because of its high speed and hence the truck got turitle and killed the aforesaid three persons on the spot. Since the respondents claimed to be the legal representatives of the deceased persons they claim compensation in accordance with law. The appellants denied their liability to pay any compensation and submitted that the deceased persons did not die of rash and negligent driving as alleged. It was specifically submitted that one of the tyres of the front wheel of the vehicle got suddenly burst resulting in the accident as aforesaid. The accident, according to the appellants was for reasons beyond their control. They however submitted that the truck was insured with the respondent Insurance Company and hence the liability, if any would be met by the said respondent. The respondent Insurance Company submitted that carrying passenger in a goods vehicle was contrary to law and amount to breach of policy conditions and hence they were not liable. The learned tribunal, on appreciation of evidence adduced by the parties, came to the conclusion that the accident took place because the truck was being driven in high speed and hence rashly and negligently. The learned Tribunal found no reliable material on record to hold that the tyre of any of the front wheel of the truck had burst as alleged. The learned tribunal also held that the deceased persons were carried in the vehicle contrary to law and the appellants were guilty of breach of policy conditions. It was therefore held that the respondent Insurance Company was not liable. The learned tribunal however calculated on Rs. 12,500/- (twelve thousand and five hundred only) as total compensation for the three deaths and awarded the same by the impugned award. It is this award which is under challenge in this appeal.

3. The finding that the truck was being driven in high uncontrollable speed and hence turned turtle is not under challenge. Indeed no arguments were submitted against it. There is also no evidence in support of the defence that the accident was the result of the burst of front tyre of the vehicle. It is therefore plain that the appellants are liable to compensate the respondents Nos. 1 to 3 for the death of the abovenamed three persons. This Court is however shocked to find that these lives have been valued at Rs. 12,500/- only. They were surely the citizens of this Democratic Republic and were killed for no fault on their part. If one is able to project his knowledge and experiences of life, he would surely conclude that the learned tribunal has found these three human lives worth only a buffalo. It is well known that a good she buffalo nowadays costs more than 12,500/- and some amount is required to spend in discovering a good quality buffalo. Human life has never been so cheep and law Court has ever treated human life so contemptuously. It is true that courts and tribunals in India have applied Section 1A of the Fatal Accident Act, 1855 to assess damages, but even said provision when applied to a (case) covered by the Act, has been read with Section 110B which makes it obligatory on the tribunal to award 'just compensation'. It may be conceded that the quantum of 'just compensation' would differ from case to case depending on facts of each case. This however would not mean that the tribunal is entitled to award even lower than minimum below which the compensation would become unjust and therefore illegal. Can three human beings, nay the citizens of this socialist, sovereign, democratic republic be equated with one she buffalo? In the opinion of this Court, it would be an insult of this Republic itself to equate its citizens with buffaloes. This Court is also of the opinion that valuing lives of three innocent rustic citizens of the country at Rs. 12,500/- only is so much below the minimum that it amounts to an insult to our Democratic Republic itself. This Court is therefore not able to accept the verdict of the learned tribunal. The learned tribunal, in the opinion of this Court, is far more behind in its knowledge of our constitutional values, which value human lives more than anything else. The learned tribunal should, in the interest of justice, undergo a refresher course to update his value judgment so that human lives are not valued so contemptuously again.

4. What should then be the minimum compensation below which an award would violate Section 110B of the Act? There might have been some difficulty in fixing the minimum before the introduction of Section 92A of the Act w.e.f. 1-10-1982, but there can legitimately be none after that date. This provision as clarified by the Supreme Court in Gujarat State Board Transport Corporation v. Raman Bhai (AIR 1987 SC 1690) is a clear departure from the usual common law principle and is intended to meet a social demand. The provision therefore seeks to secure social justice to the representatives of the victims of road accidents and to that extent, modifies the substantive law of this country. Since this provision existed on the statute book on the date of the impugned award, it deserved attention of the learned tribunal, even he did not agree to enforce it in this case. This Court in Shamsher Khan v. M.P.E.B., 1987 Jab LJ 721 examined this provision to hold that though it was not retrospective in operation, it would serve as a legislative guideline after it, nothing less than Rs. 15,000/- would be paid as compensation in case of an accidental death. This logic and reasoning was accepted by this Court in Devil v. Anawar Khan, AIR 1989 Madh Pra 101. A division bench of this Court in Karuram v. Omprakash, AIR 1989 Madh Pra 105 also held that though this provision was not retrospective in operation, it can certainly be taken into consideration in determining compensation in case of fatal accidents. The Bombay High Court in Oriental Fire & General Insurance Co. Ltd. v. Shantabai S. Dhume, 1987 Acc CJ 198 : (AIR 1987 Bom 52) was of this view that though this provision was not retrospective it would apply to all pending claim cases. This view found favour with a Division Bench of Kerala High Court in A. Villasini v. K.S.R.T.C., AIR 1989 Kerala 94. This Court is in full agreement with Bombay and Kerala view, but does not consider it necessary to differ from its earlier view as even according to the said view, the minimum compensation in this case could not have been less than Rs. 15,000/- for each death.

5. Section 92A of the Act provides for fault liability in cases of 'death or permanent disablement of 'any person' resulting from an accident. The word 'any person' must mean 'every person'. The word 'any' according to Stroud's Judicial Dictionary, (1971 Ed.) means 'all' or 'every' as it excludes limitation or qualification. It connotes wide generality and its use points to distributive construction. The Supreme Court in Chief Inspector of Mines v. K. C. Thapar, AIR 1961 SC 838 have a similarly wide meaning to the words 'any one' appearing in the Mines Act, 1952 and held that it meant 'all' or 'every' one'. Considering the object and purpose of this provision, no other meaning can be assigned to the word 'any person'. It would therefore mean that Rs. 15,000/- provided in this provision are intended to compensate one death and that a similar amount will have to be given for every death. In this view of the matter, the minimum compensation payable under Section 92A for three deaths would be Rs. 45,000/-(Forty-five thousands) and nothing less than that.

6. Unfortunately for the respondent Nos. 1 to 3, they have neither appealed against the award nor filed their cross objection to it. It is therefore sunmitted that this Court cannot enhance the amount of compensation in this appeal. Must therefore this Court be the mute spectator to the violation of law and gross injustice and insult to the human life in this Democratic Republic where justice, social, economic and political is promised to every one without distinction and which claims to be a welfare State (Article 38) whose legal system is constitutionally mandated to promote justice (Article 39A)? What is the object and purpose of Order 41, Rule 33, C.P.C. if not to meet such situations? In Gianiram v. Ramjilal, AIR 1969 SC 1144, the Supreme Court was faced a some what similar situation in which the claim of wife and daughters was not decreed because of non-application of the provisions of the Hindu Succession Act. The Court held that the case was one where powers under Order 41, Rule 33, C.P.C. ought to have been exercised. In Ramchand v. Janki Ballabh Ji, AIR 1970 SC 532 powers under this provision were exercised by the Supreme Court itself to direct the Court of first instance to frame a scheme for management of temple and its properties to make the decree for possession effective. In Kokaingh v. Smt. Deokabai, AIR 1976 SC 63 it was clarified that these powers are conferred on appellate Court to secure justice of the case. There can therefore be no doubt this Court has power to pass a decree even against the appellants if the cause justice may so require. The wrong of the type found in this Court when considered in the aforesaid constitutional context must be accepted as compelling necessity to exercise this power. Obligation of the Court to secure 'just compensation' under Section 110B of the Act is the additional reason for its exercise. This Court would therefore, unhesitatingly increase the amount of compensation from Rs. 12,500/- to Rs. 15,000/- for each death which according to it is the minimum below which no Tribufial can be permitted to award. In this view of the matter, the impugned award is modified by increasing the amount of compensation from 12,500/- to Rs. 45,000/- to be payable interms of the impugned award.

7. This Court is also unhappy by the award in so far as it does not grant any interest to the claimants on the aforesaid amount. Section 110CC of the Act require the Tribunal toward interest at such rate and from such date as it may specify. It is true that this provision confers a discretion on the Tribunal to award interest and, therefore award of interest is not always binding. Whether interest should be awarded or not, should therefore be the subject matter of discussion in the award itself. This is also the import of this Court's decision in Lachiyabai (Smt.) v. Darshan Singh Punjabi, 1988 Jab LJ 469 : (AIR 1989 Madh Pra 118) wherein this Court had, on consideration of law on the subject held that interest should not be less than 12% per annum. Clearly, therefore, there is a violation of not only Section 110CC but also the Judicial dictum of this Court. It is, therefore, not possible to sustain the impugned award in respect. Exercising powers as aforesaid, this Court directs the appellants to pay interest at the rate of 12% per annum on the awarded amount from the date of application i.e., 7-4-1983 till realization.

8. The only question raised for consideration by this Court is whether the Insurance (Company) is liable to compensate for such a loss? The true copy of the policy is on record. It covers third party risk only to such an amount as is necessary to meet requirements of Motor Vehicles Act. A perusal of the policy indicates that the insured vehicles was supposed to be used as a goods vehicle and, therefore, (sic) a public carrier. A goods vehicles is not intended to carrying passengers. Clearly therefore the passengers were being carried in the vehicle contrary to law. The Insurance policy does not cover such a risk. Indeed an Insurance Company is not expected to cover risk contrary to law. It must, therefore, be held that the Insurance Company was not liable. Earlier decision in Chameli Devi v. New India Insurance Co., 1982 MPLJ 557 and recent Full Bench decision of this Court in Kallu Maharaj v. Meenabai (AIR 1989 Madh Pra 167) are the authorities to support such a proposition. The submission of the learned counsel for the appellants, however, is that it is always the duty of the Insurance Company to prove breach of the policy condition and since the Company has not pleaded so, it should be held that the Insurance Policy covers such a risk. Reliance has been placed in S. Kandia Insurance Co. Ltd. v. Kokilaben Chandravadan, AIR 1987 SC 1184. The Supreme Court, in the said case, was considering whether the exclusion clause of the policy prohibited driving a vehicle by a person other than one holding the driving licence and, in that context, held that mere breach of clause does not absolve insurer of his liability and he has to establish that insured himself was guilty of committing breach of a condition of insurance policy. The Supreme Court took pains to clarify that it was not the contract of insurance but the statutory provision defining the conditions of exemption which was being interpreted. It must, therefore, be interpreted in the spirit in which the same have been enacted accompanied by an anxiety to ensure that the protection is not nullified by the backward looking interpretation which serves to defeat the provision rather than to fulfil its life-aim. This case is not the authority for the proposition that even in those cases where the breach of policy condition is obvious, the Court should insist on proof. Proof of what? In a case like it mere filing of the Insurance Policy would be sufficient, which has been done in this case and is sufficient to discharge the burden of proof, if any. The policy clearly specified that it was in relation to the truck intended to be used as carrier of goods. Under the circumstances, no question of not complying with the aforesaid decision of the Supreme Court should arise. In this view of the matter, the award of the Tribunal that Insurance Company was not liable is affirmed.

9. In view of the discussion aforesaid, the appeal fails and is dismissed. However, the impugned award is modified by increasing the amount of compensation to Rs. 45,000/-with interest at the rate of 1-2% per annum from the date of application till realization. Parties will, however, bear their own costs in this appeal.