1. This order will dispose of F.A.Os Nos. 129 of 1962, 131 of 1962 and 55 of 1963. The first appeal is by the Insurance Company, the second by the owner of the motor cycle and the third by the dependents of the deceased.
2. These appeals are directed against the judgment of the Motor Accidents Claims Tribunal awarding a sum of Rs. 20,000/- as compensation to the claimants against the insurance company and the owner of the motor cycle. The accident took place at about 10.00 P.M on the 5th of April, 1961. The deceased Jagdish Lal and Tara Singh Virdhi, owner of the motor cycle, were riding a motor cycle on the fateful night when they struck against a traffic island with the result that Shri Tara Singh Virdhi suffered injuries whereas Jagdish Lal died on the spot. The legal representatives of Jagdish Lal have made a claim against the insurance company with which the motor cycle was insured and against the owner of the motor cycle. A sum of Rs. 2 lakhs was claimed as compensation. The deceased has left behind a widow, three daughters and a son. According to the claimants, the motor cycle was being driven by the owner Tara Singh Virdhi, whereas according to the version of Tara Singh Virdhi, the deceased was driving the motor cycle. The Tribunal has found that Tara Singh Virdhi was driving the motor cycle and that the accident took place because of his rash and negligent driving. The Tribunal assessed the compensation at Rs. 20,000/-. The basis on which the Tribunal fixed this amount was that the annual benefit of which the claimants would be deprived of would be about Rs. 3,000/- per annum. At the time of death the deceased was 45 years of age and keeping in view the age of retirement at 55 years, ten years' compensation has been assessed at Rs. 30,000/-. The deceased was insured for Rs. 10,000/-. This amount has been deducted out of Rs. 30,000/- and it is for the balance that a decree has been passed against the Insurance company as well as the owner of the motor cycle. Against this decision the insurance company, the owner of the motor vehicle and the claimants have preferred the aforesaid three appeals.
3. I will first take up the appeal filed by the Insurance company. The contention of the Insurance company is that the policy does not cover the passenger on the pillion. He was never carried for hire or reward nor he was carried on in the course of employment. On this there is no dispute and in support of the contention the learned counsel for the company has placed reliance upon a Full Bench decision of this court in Oriental Fire and General Insurance Company Ltd. v. Gurdev Kaur . 1967 A.C.J 158 and the decision of a Court of Appeal in Coward v. Motor Insurance Bureau . 1962 All E.R 531.. In my opinion these decisions conclude the matter in favour of the company. Mr. Sachar relies on section 95(i)(b) in support of the contention that this clause covers a passenger in the insured vehicle even if he is not carried for hire or reward or in the course of his employment. I am unable to agree with his contention. His interpretation will only hold good if the policy of insurance insures such a person against accident. I have referred to the policy in question wherein the following provision is made under the head ‘liability to third parties’ and clause I under that heading reads thus:
1. Subject to the Limits of Liability the company will indemnify the insured in the event of accident caused by or arising out of the use of the Motor Cycle against all sums including claimant's costs 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 and excluding liability to any person being conveyed in or on the motor cycle unless such a person is being conveyed by reason of or in pursuance of a contract of employment.
(b) damage to property other than property belonging to the Insured or held in trust by or in the custody or control of the Insured or any member of the Insured's household or being conveyed by the Motor Cycle.
4. This clause clearly excludes a passenger on the vehicle itself. The position would be different if in jury to such a person by accident had to be indemnified by the insurer of the vehicle as is the case under comprehensive insurance policy. But in the present policy there is no such provision. So far as the statute is concerned, the learned counsel has been unable to point out any provision which covers the case of a passenger in the vehicle which is insured. The only provision to which a reference was made by the learned counsel is section 95(1)(b), which in my opinion does not at all cover the case. On principle I see no distinction between the case of a passenger who was carried in a goods carrier and the case of a passenger who is carried on the pillion of a motor cycle. In the Full bench decision of this court, I have referred to, the company was absolved from liability by reason of the death of a passenger in the truck (goods carrier). On the parity of reasoning of the Full Bench decision, the appellant company would be absolved from liability for the death of Jagdish Lal who was riding on the pillion of the vehicle. In the policy, it is clearly stated that any person who is being conveyed in or on the motor cycle if injured, the liability in respect of him is not covered. The contention of Mr. Sachar, the counsel for the claimants, is that the insurance company is liable because the position of the rider on pillion, that is the deceased, was that of a third party. The learned counsel has relied upon Marsh v. Moores, Digby v. General Accident, Fire and Life Insurance Corporation Ltd. and New Asiatic Insurance Co. Ltd. v. Pessumal Dhanamal Aswani,3 in support of his contention. I have gone through these authorities and none of them supports the contention of the learned counsel. All these cases were decided on their own peculiar facts and in terms of each individual insurance policy in those cases. I am, therefore, unable to agree with the contention of the learned counsel that these decisions helped his contention. As already held the matter stands concluded by the Full Bench decision of this Court already referred to.
5. In this view of the matter, the contention of the learned counsel for the company is sound that the company will not be liable to indemnify the owner of the motor vehicle for damages which he may have to pay to the person injured or killed by the accident. I accordingly allow the appeal of the insurance company and set aside the award of damages against it, with no order as to costs.
6. Now I will take up the appeal of the owner of the motor vehicle and the claimants because they are interconnected. The first contention raised on behalf of Tara Singh Virdhi by his counsel is that he was not driving the motor cycle, but it was the deceased who was driving the motor cycle. On the question as to who was driving the motor cycle, both sides have examined oral evidence. I have gone through the same and I have not the least hesitation in holding that this evidence is wholly unreliable and not worthy of credence. The facts and circumstances of the case as well as the time of the accident and the further fact that it was a dark night and the motor cycle which was being riden by Virdhi and the deceased had no headlight clearly militate against the testimony of these witnesses. None of them can be relied upon in support of either of the versions, namely, that Virdhi was driving or that the deceased was driving the motor cycle at the time of the accident. I entirely agree with the conclusions of the Tribunal on this part of the case. One has to infer from the proved facts and the attending circumstances as to who in all likelihood would be driving the vehicle. There is no evidence that the deceased had a licence to drive the vehicle. The vehicle is owned by Tara Singh Virdhi who also holds a licence to drive the same. It is in evidence that after the accident when Tara Singh Virdhi was taken to the Hospital, he was under the influence of liquor. It is also in evidence that the vehicle struck the traffic island and damaged that part of brick work where it struck and thereafter landed in the middle of the island. The deceased was thrown five or six feet away from the place of the impact as well as from the place where the motor cycle ultimately landed whereas Virdhi was lying within a couple of feet of the motor cycle. Considering the nature of the injuries, and the respective distance of both from the vehicle it is obvious that it was the pillion rider who would be thrown farther away from the vehicle whereas the driver who was holding the steering handle of the vehicle would not land very far. All these factors taken together leave no manner of doubt that the vehicle was being driven by Virdhi and I entirely agree with the conclusion of the Tribunal on this part of the case.
7. The second contention on behalf of Tara Singh is that the Tribunal has gone wrong in holding that he was guilty of rash and negligent driving. All the aforesaid facts mentioned while dealing with the first contention taken together leave no manner of doubt that the accident took place because of the rash and negligent driving of Virdhi. It is positively proved from the statement of Ved Parkash Mehta, A.W 4, that there was no bulb in the headlight and the wires could not get disconnected by reason of the accident. In any case, even if the bulb was smashed its metal part would be available at the spot. No metal part was recovered from the spot. Thus it is obvious that the vehicle was being driven in a dark night without headlights and this is highly probable because under the influence of liquor a person may throw off all rules of caution and safety to the winds. The medical evidence discloses that when Virdhi was taken to the hospital, it was found that he had taken liquor. It is also in evidence that the motor vehicle was driven at a very high speed, that is, 50 miles per hour. To maintain this speed at crossroads itself is an act of negligence coupled with the fact that this speed was maintained by a person who was under the influence of liquor. The appellant (Mr. Virdhi) is an architect. He is a resident of the town. He must be fairly conversant with the roads and would know which cross roads have traffic islands. The fact that he hit the traffic island clearly shows that he was under the influence of liquor, was travelling without light and was going at an excessive speed. These facts coupled with the fact that he did not apply the brakes point to no other conclusion but one that the accident was caused by his rash and negligent driving of the vehicle. The Tribunal was, therefore, right in its conclusion that Mr. Virdhi was guilty of rash and negligent driving and that the accident took place entirely due to his fault.
8. On the question of quantum of compensation, the learned counsel, for Mr. Virdhi has contended that the amount of Rs. 20,000/- awarded is excessive, whereas the counsel for the claimants has urged that the amount of Rs. 20,000/- awarded is on the low side. It is no doubt true that the Tribunal did not take into account the pension that the deceased would have earned and therefore the counsel for the claimants has contended on the basis of a decision of this court in Mangli v. Krishna Bus Service Ltd. Delhi that the amount fixed by the Tribunal is too low. However, no hard and fast rule can be laid down in fixing compensation, for the quantum of compensation must have relation to the facts of each particular case. I also cannot lose sight of the fact that the claimants would get directly into possession of the capitalised value of what they would have got in 10 years all at once. To put it more bluntly, they would get into possession of Rs. 30,000/- which amount would have come to them in small quantities during the course of 10 years. Even at the rate of 6 per cent the interest on this amount would come to Rs. 1,800/- per annum. Moreover, it cannot be said that the Tribunal while fixing the amount of compensation has made any grievous error which calls for correction. I do not see any reason to interfere with the award of the Tribunal so far as the quantum of compensation is concerned. If I had come to the conclusion that the compensation fixed was rather too low, I might have interfered. But considering the quantum of compensation fixed, it cannot be said that it is too low.
9. For the reasons recorded above I would reject Mr. Virdhi's appeal with costs and the claimants appeal with no order as to costs.
10. Insurer's appeal accepted.