United India Ins. Company Ltd. v. Jagatsinh Valsinh And Others

R.C Mankad, J.:— Complete ignorance of basic and elementary principle of law on the part of the Motor Accident Claims Tribunal (Main), Mehsana (hereinafter referred to as the “Tribunal”) has led to the filing of this appeal by the appellant insurance company with whom the motor vehicle involved in the accident was insured. And we are left with no alternative but to remand the matter to the Tribunal for fresh adjudication of the claim made by respondent No. 1 original claimant for damages for injuries sustained by him in the accident.

2. Can a tort-feaser who has been found to be guilty of causing accident for rash and negligent driving of a motor vehicle be awarded compensation for the injuries sustained by him as a result of the accident; and can the insurance company be held liable to pay compensation to the driver of motor vehicle who is a tort-feaser, without holding the insured or the owner of the motor vehicle liable for the compensation, are some of the questions which arise for our consideration in background of the following facts. Respondent No. 1 Jagatsinh Valsinh, original claimant (hereinafter referred to as the “claimant”) was employed as driver by respondent No. 2, original opponent No. 1 to drive Meta-dor bearing registration No. GTF 5932, which was owned by respondent No. 2. On August 9, 1981 the claimant was driving the Metador from Visnagar to Mehsana when the accident occurred. It is the case of the claimant that brakes of the Metador were not properly functioning and he had complained about it to respondent No. 2 two days before the accident. Respondent No. 2, however did not get the brakes repaired. On the date of the accident when the claimant was taking the Metador from Visnagar to Mehsana and when he was proceeding from Kansarakui to Pasna, there was a cyclist on the road who was riding his cycle on the right side of the road. According to the claimant he was driving the Metador at a moderate speed and when he was about to pass the cyclist, the cyclist turned his cycle towards left. The claimant had, therefore, to apply brakes to avoid collision with the cyclist. It is the claimant's case that when he applied brakes, the Metador went on the kaccha road on the left side, slipped down the road and turned turtle. According to the claimant soil had become soft and sticky on account of rains and as the road was on higher level than the adjoining land the Metador slipped and turned turtle as stated above. As a result of the Metador tuning turtle the door on the driver's side that is claimant's side broke down and the claimant was thrown out through the window. As a result of this accident the claimant is alleged to have sustained injuries including fracture of lower first vertible with posterior displacement. According to the claimant as a result of the injuries sustained by him, he is not in a position to use his lower limbs and he will have to remain in bed for his whole life. The claimant filed a petition being Motor Accident Claims Petition No. 146 of 1982 claiming compensation of Rs. 1,50,000/- from respondent No. 2 owner of the Metador and the appellant original opponent No. 2, insurance company with whom the Metador was insured.

3. Respondent No. 2 owner and the appellant insurance company resisted the claim made by the claimant. The main contention which was raised by them was that the claimant cannot claim compensation for the injuries sustained by him or disablement suffered by him as a result of such injuries because the accident occurred on account of his own negligence. The insurance company further contended that if the brakes of the Metador were defective as stated by the claimant, the insurance company cannot be held liable, because the Metador with defective brakes should not have been taken out on the road. The appellant and respondent No. 2 also contended that claimant was not entitled to claim more compensation than what is awardable to him under the Workmen's Compensation Act. According to them claim of Rs. 1,50,000/- made by the claimant was excessive.”

4. The Tribunal framed the following issues for determination:

“1. Whether the applicant sustained injuries on account of accident caused by applicant himself by driving Metador No. GTF 5932 on 9-8-1981 because of the said Metador not being repaired though informed to the owner by the applicant?

2. What amount the applicant is entitled to as compensation and from whom?

3. What award.”

5. The findings recorded on the above issues were as follows:

1. Yes.

2. Rs. 90,200/- from opponent No. 2 only.

3. As per award.”

6. It is obvious that the Tribunal has failed to raise proper issues for determination. Issue No. 1 as framed is complex and does not bring into focus real controversy in issue arising out of the pleadings. No issue is raised with regard to the defence that accident occurred on account of rash and negligent driving on the part of the claimant raised by appellant and respondent No. 2. It was also necessary to focus the attention of the parties to the issue whether respondent No. 2 owner and appellant the insurance company would be liable to pay any compensation to the claimant in case it was held that accident occurred on account of rash and negligent driving of the Metador on the part of the claimant. No specific issues are raised with regard to the injuries sustained by the claimant, disability suffered by him as a result of such injuries, actual economic loss, if any suffered by him, and future economic loss which he was likely to suffer as a result of disablement if any. No issue with regard to medical expenses incurred by the claimant is also framed. It would thus appear that the Tribunal was totally unmindful of what it was required to decide in the matter of this kind and consequently it foiled to raise proper issues for determination.

7. The Tribunal on appreciation of evidence on record, came to the conclusion that the accident occurred on account of rash and negligent driving on the part of the claimant and that the brakes of the Metador were not defective as alleged by the claimant. The Tribunal refused to believe the statement of the claimant that the brakes were defective and, therefore, held that it was not proved that the accident occurred on account of defective brakes. As pointed out above, the conclusion of the Tribunal was that the claimant was negligent in driving the Metador and it was on account of his negligence that the accident occurred. Curiously enough in spite of this finding, the Tribunal has answered issue No. 1 raised by it in the affirmative. In other words, while answering issue No. 1 the Tribunal has reached the finding that the accident occurred because the Metador was not repaired though the owner was informed about the defect in the vehicle by the claimant. Answer to issue No. 1 is inconsistent with the finding that the claimant received injuries on account of his own negligence. However, the reasoning given by the Tribunal makes it clear that in the opinion of the Tribunal cause of the accident was negligence of the claimant in driving the Metador and not the defective brakes. The next question is whether in the case of this clear finding, could any compensation have been awarded to the claimant?

8. The claimant is held to be a tort-feaser. It is beyond comprehension as to how a tort-feaser can be awarded compensation for the tortious act committed by him. If the claimant sustained injuries and suffered disablement as a result of such injuries he has to blame himself for it was his own negligence which caused these injuries. If the claimant was negligent, he cannot come forward and say “pay me compensation for my own negligence”. The Tribunal has not examined whether the position of a tort-feaser who is employee, would be different from other tort-feasers. In the instant case, the claimant was employed by respondent No. 2 to drive his Metador. It was in the course of his employment that the claimant sustained injuries, resulting in permanent disablement. Therefore, the question arises whether even apart from Workmen's Compensation Act, under general law, can an employee claim compensation for the injuries sustained by him in the course of his employment even in a case where he is found to be negligent. This aspect of the case has not been examined at all by the Tribunal. It is not disputed that the claimant could have preferred claim under the Workmen's Compensation Act; but the question which is posed above is whether even apart from the provisions of the Workmen's Compensation Act, the claimant could have claimed compensation from his employer and the appellant insurance company with whom the Metador was insured on the ground that he has sustained injuries in the course of his employment. In this context, the question whether the brakes were defective may assume importance. The claimant has stated that brakes of the Metador were defective and he had drawn the attention of respondent No. 2 owner to this defect, but respondent No. 2 did not care to repair or remove the defect. It would appear that if what the claimant says is true, the claimant was made to drive the Metador with defective brakes by respondent No. 2. If this were so, would respondent No. 2 the owner of Metador not be liable to pay damages or compensation to the claimant for the injuries and resultant disablement suffered by him, because it was he who had exposed the claimant to the risk of being involved in the accident causing such injuries, although he knew that the brakes were defective? The Tribunal examined the question of defective brakes only in the context of defence of the appellant insurance company that it was not liable to pay any compensation because the Metador with defective brakes was taken on the road. Prima facie there is no reason why the claimant's statement that brakes of the Metador were defective and that he had informed about this defect to respondent No. 2 should not be accepted. We are distressed to find that the Tribunal has not appreciated the importance of the statement regarding defective brakes made by the claimant and summarily discarded the statement holding that the brakes were not proved to be defective. The Tribunal, no doubt, could have come to the same conclusion on proper appreciation of the evidence on record; but what we are constrained to observe is that firstly it has not appreciated the importance of the question and secondly it has not dealt with it in the manner it should have. However, if we have to decide the question of awarding compensation to the claimant only on the basis of the finding recorded by the Tribunal, it must be held that the claimant is not entitled to any compensation, the Tribunal having found that accident occurred on account of his own negligence. It is beyond our comprehension as to how any compensation could have been awarded to the claimant in the face of the finding that it was his own negligence which caused him injuries. We may hasten to add that we are making this observation only in the context of the findings recorded by the Tribunal without going into the question whether even if the claimant was negligent, the owner of the vehicle could have been held liable for paying him compensation as the accident occurred in the course of the employment, or the question whether owner of the vehicle would be liable to pay compensation to the claimant because he was exposed to the risk of accident having been asked to drive defective vehicle.

9. The Tribunal has not referred to or discussed evidence with regard to the income of the claimant, injuries sustained by him and disability suffered by him as a result of such injuries. The Tribunal has simply referred to the claimant's statement that he was earning Rs. 400/- per month and stated that this being an injury case, claimant is entitled to compensation on account of pecuniary loss. There is no discussion or description of the injuries and what treatment the claimant took for such injuries. After holding that having regard to the injuries, it would be just and proper to award Rs. 3000/- on account of “medicines, transportation and nutritions”, the Tribunal proceeded to consider the claimant's claim for economic loss. The Tribunal held that so far as the “present economic loss” was concerned, it was just and proper to award Rs. 2400/- as the claimant “would be confined to bed for a period of six months”. The Tribunal then proceeded to determine future economic loss and held as follows in paragraph 10 of its judgment:

“Then on account of future economic loss, the disability claimed is 90% and 90% of Rs. 400/- would come to Rs. 360/-. Rs. 360 × 12 would come to Rs. 4320/-. Taking into account the age and nature of the injuries, uncertainty it would be just and proper to apply 15 years multiplier. Rs. 4320/- × 15 would come to Rs. 64800/- which would be the amount awardable to the applicant on account of future economic loss.”

10. The Tribunal has not discussed any evidence while dealing with the question of actual economic loss or future economic loss. It has stated that disability claimed is 90% but it has not recorded a finding that disability is to the extent of 90%. No medical evidence on the question of disability suffered by the claimant is also discussed. It is not known on what evidence or principle has the Tribunal assessed 90% of Rs. 400/- as the basis for awarding future economic loss. The assessment of the actual and future economic loss, to say the least, is wholly unsatisfactory. The Tribunal has further awarded Rs. 20,000/- on account of “non-pecuniary loss”. What is the basis for such award is not made clear in the judgment of the Tribunal. On what evidence and principles to the Tribunal has assessed the compensation payable to the claimant is not at all clear from the judgment of the Tribunal. It has in all awarded compensation of Rs. 90,200/- to the claimant.

11. The discussion on the question as to how the appellant insurance company is liable to pay compensation to the claimant is also far from satisfactory. The Tribunal has held the insurance company liable as in its opinion, the driver while in employment was covered by the terms of the insurance policy and insurance company was liable to make good loss suffered by the owner of the vehicle. The Tribunal has not recorded any finding that respondent No. 2 owner of the Metador was liable to pay compensation or damages to the claimant. It is not clear as to what loss the owner of the vehicle suffered according to the Tribunal which the insurance company was liable to make good under the terms of the insurance policy. Though it is not clear, it appears that the view of the Tribunal is that if the owner of the vehicle is liable to pay compensation, the insurance company would be liable to pay such compensation. However, as pointed out above, the owner has not been found to be liable to pay compensation to the claimant. Thus what is startling is that without holding the owner liable the insurance company is made liable to pay compensation to the claimant. In fact, award has been passed against the appellant insurance company alone and tile claimant's application as against respondent No. 2 owner has been dismissed. The insurance policy taken out by the owner of the vehicle is a contract of indemnity and liability of the insurance company, if any is to indemnify the owner of the vehicle to the extent he is made liable to pay damages or compensation. Therefore, unless the owner is made liable, the insurance company cannot be held liable. Unfortunately, we find that the Tribunal has lost sight of this elementary principle and passed award against the appellant insurance company without making respondent No. 2 liable to pay compensation to the claimant.

12. In view of what is discussed above the position which emerges is as follows:

(1) The Tribunal has not applied its mind to the defence raised by the appellant and respondent No. 2 and consequently failed to raise proper issues for determination in the context of such defence.

(2) The Tribunal has failed to raise relevant issues regarding injuries, disablement and economic loss focussing attention of the parties on these vital issues involved in the claim application.

(3) The Tribunal has failed to appreciate evidence on record in the context of the claimant's plea that the brakes of the Metador were defective and accident occurred on account of such defective brakes.

(4) The Tribunal has awarded compensation to the claimant although it held that the accident in which he sustained injuries resulting in disablement was caused by his own negligence.

(5) The Tribunal has not applied its mind or examined the question whether respondent No. 2 and appellant would be liable to pay compensation to the claimant as the accident occurred in the course of employment and whether defective brakes, if held to be so, have any bearing on this question.

(6) The Tribunal has made appellant insurance company liable for payment of compensation to the claimant without holding the owner of the vehicle namely respondent No. 2 liable for the same.

13. In this unhappy state of affairs, in our opinion, the proper course to adopt is to set aside the judgment and award passed by the Tribunal and to remand the matter to the Tribunal for fresh adjudication on merits in accordance with law. We however, regret that as a result of improper handling of the matter by the Tribunal the claimant is likely to suffer in case he ultimately succeeds on merits. There will be delay in paying compensation to the claimant if it is held that he is entitled to such compensation. Since one of the pleas which was taken up by the appellant was that the claimant was not entitled to claim anything more than what was payable to him under the Workmen's Compensation Act, we suggested to the learned Counsel for the appellant that the appellant should agree to payment of compensation payable under the Workmen's Compensation Act to the claimant without prejudice to its rights and contentions. The learned Counsel consulted the appellant and we are happy to note that response has been positive. The appellant has agreed that out of the amount deposited by it towards the award passed by the Tribunal, Rs. 29,000/- be paid to the claimant without prejudice to its rights and contentions. We place on record our appreciation of the fair stand taken up by the appellant.

14. In the result, we allow this appeal and quash and set aside the judgment and award passed by the Tribunal. The matter is remanded to the Tribunal for fresh adjudication of the claim made by the claimant on merits in accordance with law in the light of the observations made above. Both the parties will be at liberty to lead fresh evidence in support of their respective claims. Out of the amount deposited by the appellant in this Court towards the amount payable under the award, Rs. 29,0001/- will be invested in fixed deposit with a nationalised bank for a period of 61 months. The claimant shall be entitled to withdraw interest accruing due on this fixed deposit without furnishing security and under no circumstances, he shall be liable to refund the same. The claimant shall, however, not be entitled to raise any loan on such fixed deposit or encash it before maturity. Fixed Deposit Receipt shall be kept in the safe custody of the Tribunal. Balance of the amount lying in deposit shall be refunded to the appellant. The aforesaid arrangement is made without prejudice to the rights and contentions of the parties. There will be no order as to costs.

15. Orders accordingly.

16. Appeal allowed.

17. Matter remanded.