Hemant Madhukar Patil vs Shakuntala Arvind Bramhabhatt ...
2002 Latest Caselaw 15 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard the learned Advocates for the appellant and the respondent Nos. 1, 3 and 4. None present for the respondent No. 2, though served.

2. The present appeal arises from the judgment and order passed on 21st June, 1996 by Member, M.A.C.T. Thane in MAC No. 194 of 1990. By the impugned judgment the claim petition filed by the respondent Nos. 1 and 2 herein has been allowed and the appellant and the respondent No. 3 have been ordered to pay the sum of Rs. 4,65,000/- as the compensation to the respondent Nos. 1 and 2 on account of death of one Arvind Tribhuvandas Bramhabhatt, who was husband of the respondent No. 1 and son of respondent No. 2. The death had occurred in the accident involving the vehicle bearing No. MCY-3704 driven by the respondent No. 3 and owned by the appellant herein at the relevant time.

3. The facts in brief are that the deceased Arvind was proceeding to Bhayandar on his motor-cycle in a normal speed when a lorry bearing No. MCY-3704 driven by the respondent No. 3, belonging to the appellant and insured with the respondent No. 4, came in high speed dashed against the said motor-cycle causing serious injuries to Arvind. Said Arvind was shifted to Bhagwati Hospital where doctor on examination, declared him as dead. It was the case of the claimant that he was engaged in commission business besides being in textile yarn merchant and his annual income was Rs. 61,000/-. The Tribunal after considering the evidence produced by the parties awarded the compensation of Rs. 4,65,000/- while limiting the liability of the Insurance Company respondent No. 4 to the extent of Rs. 1,50,000/- in terms of the Insurance Policy Exh. 54.

4. The impugned judgment is sought to be assailed on two grounds. Firstly, that in view of section 147(2) of the Motor Vehicles Act, 1988, hereinafter called as "the said Act", the Tribunal could not have restricted the liability of the Insurance Company to the extent of Rs. 1,50,000/- and ought to have held that the liability of Insurance Company to be joint and several with the owner and driver of the vehicle. Secondly, it was sought to be contended that the quantum of compensation awarded is exorbitant and not based on materials on record. The learned Advocate appearing on behalf of the respondent No. 1 on the other hand has submitted that the compensation Award is based on the analysis of the evidence produced by the parties and not challenged by the appellant or other parties before the Tribunal. The respondent No. 1 has also sought to file cross-objection claiming apportionment awarded between the respondent Nos. 1 and 2. While contending that it was obligatory for the Tribunal to apportion the said compensation in view of the provisions contained under section 168 of the said Act, the learned Advocate appearing for the respondent No. 4 Insurance Company has submitted that the point regarding applicability of section 147(2) of the said Act and the liability of the Insurance Company being co-extensive with that of the owner and the driver has not been specifically raised in the memo of appeal and argued that the appellant is not entitled to raise such issue at the eleventh hour without taking specific ground in that regard in the memo of appeal. The learned Advocate appearing for the appellant has placed reliance in the decision of the Apex Court in the matter of National Insurance Co. Ltd. v. Behari Lal, in support of his submission that the liability of the Insurance Company is co-extensive with that of the owner and the driver in view of the provisions of law contained in section 147(2) of the said Act.

5. The points which arise for determination in the present appeal are :

1. Whether the appellant is entitled to raise the point regarding co-extensive liability of Insurance Company alongwith the owner and driver without raising specific ground in that regard in the memo of appeal?

2. Whether the liability of the Insurance Company is co-extensive with that of the owner and the driver or is limited to Rs. 1,50,000/- as ordered by the Tribunal in the facts and circumstances of the case?

3. Whether the compensation awarded in favour of the respondent Nos. 1 and 2 is exorbitant?

4. Whether the respondent Nos. 1 and 2 are entitled to seek apportionment of the compensation by filing cross-objection in the matter?

6. As regards the contention of the respondent No. 4 about the failure on the part of the appellant to take a specified ground regarding co-extensive liability of the Insurance Company alongwith the owner and driver, it is to be noted that the point raised is purely a point of law and it had been well settled by the decision of the Apex Court in the National Insurance Company. In Koksingh v. Smt. Deokabai, it has been held that if an Appellate Court is of the view that any decree which ought in law to have been passed was in fact not passed by the Court below, it may pass or make such further or other decree or order as the justice of the case may require. Thus under Order 41, Rule 33, the High Court is competent to pass a decree for the enforcement of a charge in favour of the respondent notwithstanding the fact that the respondent did not file any appeal from the decree. In Chittoori Subhanna v. Rudappa Subhanna and others, it was held that a pure question of law not dependent on the determination of any question of fact should be allowed to be raised for the first time in the grounds of appeal by the first Appellate Court. Such pure question of law are allowed for the first time at late stages also. The learned Single Judge of this Court in Hashmatrai and another v. Tarachand and others, has held that ordinarily an aggrieved party is expected to prefer an appeal for getting relief which was refused by the lower Court, but there are certain exceptional circumstances which are contemplated by the Legislature and it is for that purpose that Order 41, Rule 33 has made a provision which enables the Appellate Court to make such orders as the case may require. The power can be exercised notwithstanding that the appeal is as to part only of the decree. It can also be used in favour of any of the respondents although they have not filed any appeal or cross-objection. The Madras High Court in M. Kesava Goundel and others v. D.C. Rajan and others, reported in A.I.R. 1976 Madras 102 has held that if a question of law arises on the facts, but it went unnoticed by the parties, and even so, the trial Judge, there is legal duty on the part of the Appellate Court either suo motu or on its attention being drawn to it, to adjudge upon such a question, even though it is brought up for the first time. The Kerala High Court in Kandamath Cine Enterprises (Pvt) Ltd. v. John Philipose, has held that the plea that a contract is void for uncertainty under section 20 of the Contract Act is a question of law and if the terms of the contract are vague and uncertain, the contract itself would be void and unenforceable under section 29 of the Contract Act and that will go into the root of the matter and, therefore, it is a plea that could be raised even at the appellate stage. Being so, mere absence of specific ground in the memo of appeal would not prohibit the appellant from assailing the impugned judgment on the said ground.

7. It is not in dispute that the accident in question occurred on 22nd October, 1989. The policy issued in respect of the vehicle involved in the accident was for the period from 17th November, 1988 to 16th November, 1989. The said Act came into force with effect from 1st July, 1989. In the background of these facts the Tribunal referring to proviso to section 147 of the said Act has held that the Insurance Policy issued in the matter was in force on the date of the accident and the accident having occurred within the period of four months from the commencement of the said Act, the liability of the Insurance Company could be limited to the extent disclosed in the said Insurance Policy. It is also to be noted that under the Insurance Policy (Exh. 54) third party liability of the insurance company was agreed to be to the extent of Rs. 1,50,000/- in case of accident. The contention of the appellant is that there is a clear case of the mis-construction of the proviso of section 147 by the Tribunal while holding that the liability of the Insurance Company to be limited to the extent of Rs. 1,50,000/-.

8. Section 147 of the said Act deals with the matters pertaining to requirement of policies and limits of liability of Insurance Policy. Sub-section (2) thereof reads thus :

"(2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely :-

(a) save as provided in Clause (b) the amount of liability incurred;

(b) in respect of damage to any property of a third party, a limit of rupees six thousand :

Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expire of such policy whichever is earlier."

9. Apparently referring to the expression, "shall continue to be effective for a period of four months after such commencement or till the date of expire of such policy whichever is earlier", the Tribunal has held that since the said Act came into force from 1st of July, 1989, the accident had occurred on 22nd October, 1989 and the policy was in force till 16-11-1989, the same disclose that the accident had occurred within the period of four months from the date of the commencement of the said Act and the policy issued under the old Act was still in force by virtue of the said proviso, and that therefore, the liability of the Insurance Company could be limited to Rs. 1,50,000/- only as it was specified in the said policy (Exh. 54). However, the Apex Court in National Insurance Co. Ltd. (supra) while construing the said proviso to section 147(2) of the said Act, has clearly held that the proviso does not deal with the issue pertaining to the limits of the liability of the Insurance Company, but it deals with the statutory policy with limited liability. In fact, the observation in that regard read thus, "Now, a policy of insurance may be a contract policy or a statutory policy. The proviso does not deal with unlimited liability which an insurer may undertake under a contract policy. It deals with a statutory policy with limited liability." The phrase "with any limited liability and in force" has been further explained to mean that "a statutory policy under the old Act with the limit prescribed therein which was valid immediately before the commencement of the new Act". It is, therefore, observed that, "the words are not employed to limit the liability of an insurance company to the amount specified in the policy by virtue of the provisions of section 95(2) of the old Act either for a period of four months or for a lesser period during which the policy is valid". Further the Apex Court in clear terms held that "the proviso to sub-section (2) of section 147 does not limit the liability of insurance companies to payment of compensation to the extent specified in the policy of insurance in terms of section 95(2) of the old Act which was in force before the commencement of the new Act for a period of four months after commencement of the new Act or till the date of expire of such a policy, whichever is earlier". While holding so, the Apex Court has endorsed the view taken by the Division Bench of the Gujarat High Court in Kacharabhai L. Limbachia v. Ratansinh J. Rathod-Patelia, reported in 1988 A.C.J. 326(Gujarat) and Division Bench of Punjab and Haryana High Court in National Insurance Co. Ltd. v. Puja Roller Flour Mills (P) Ltd., reported in 1997(2) Punjab L.R 199. It is pertinent to note that the judgment of the Apex Court clearly discloses that the accident therein had occurred on 4-9-1989 and the policy was issued on 20-10-1988 and it was valid upto 27-10-1989.

10. The facts of the said case before the Apex Court were similar to those of the facts in the case in hand. This decision of the Apex Court clearly lays down the law in relation to the interpretation of the proviso to sub-section (2) of section 147 to the effect that the expression "with any limited liability and in force" in the said proviso, does not refer to the limits of the liability in terms of the policy issued under the provisions of the old Act, but it relates to the statutory policy under the Act, under which the Insurance Policy document was issued to the party. In other words, contractual relationship regarding the insurance of the vehicle arising under the policy issued under the old Act would continue to have effect for a period of four months after commencement of the new Act or till the date of expiry of such policy whichever is earlier, subject to the limit of liability being decided in terms of the law in force on the date of the accident if it occurs after the date of coming into force of the new Act. The said decision of the Apex Court being very clear on the point sought to be raised, the appellant is justified in submitting that the Tribunal did not construe the proviso to section 147(2) in the manner it ought to have understood and improperly restricted the liability of the Insurance Company to the sum of Rs. 1,50,000/-. Considering the decision by the Apex Court in National Insurance Co. on the point in issue the liability of Insurance Company with effect from the commencement of the new Act is to be held as co-extensive with the owner and the driver. Being so, the finding of the Tribunal limiting the liability of the Insurance Company to Rs. 1,50,000/- cannot be sustained and the same to be set aside holding that the respondent No. 4 Insurance Company to be jointly and severally liable for payment of compensation alongwith the appellant and the respondent No. 3.

11. As regards the second ground of challenge, it is seen that the claimant had produced necessary certificate issued by the Chartered Accountant of the deceased Arvind and has also examined the Chartered Accountant before the Tribunal in respect of the said certificate. The contents of the certificate have been duly confirmed by the said Chartered Accountant and the same disclose that the annual income of the deceased Arvind was Rs. 61,000/-. Undisputedly, the deceased was of 35 years of age on the date of the accident. Considering the same the Tribunal has applied multiplier of 15, and annual dependency of claimants is considered at Rs. 30,000/- and thus claimants are held to be entitled for compensation of Rs. 30,000/- x 15 = 4,50,000/-. There is no case made out for interference in the said finding as it is clearly borne out from the record as rightly submitted by the learned Advocate for the respondent No. 1.

12. As regards the claim for apportionment preferred by the cross-objection by the respondent No. 1, it is to be noted that no claim for apportionment of compensation was made before the Tribunal. The contention that in terms of the section 168 it was obligatory on the part of the driver to apportion for compensation is devoid of substance. Section 168 of the said Act provides that on receipt of the application for compensation under section 166, the claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of section 162 may make an Award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the Award the claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be. Referring to the expression, "specifying the person" it was sought to be contended on behalf of the respondent No. 1 that it was necessary for a person to satisfy a person in whose favour apportionment of compensation is awarded. The proviso to section 168 clearly speaks of enquiry into the claim or as the case may be each of the claim". In other words, when there are more than one claimants, if they want apportionment of the compensation claimed by them, it is necessary for them to satisfy the respective claim of each of the claimants. In the absence of such specific plea being raised and proved, there is no obligation casts upon the Tribunal to apportion the compensation amongst the claimants. However, it will not prohibit the Tribunal from apportioning the compensation suo moto, if record justifies the same. But it cannot be held that in each and every case, it is obligatory upon the Tribunal to apportion the compensation when there are more than one claimant. It will certainly depend upon the facts of each case. Considering the facts and circumstances of the case in hand, there being no such claim made before the Tribunal in the application, it was not obligatory upon the Tribunal to apportion the compensation between the respondent Nos. 1 and 2. The materials on record also do not justify any apportionment of the compensation.

13. In the result, therefore, the appeal partly succeeds. The finding in respect of restriction of the liability of the Insurance Company to the extent of Rs. 1,50,000/- is hereby set aside and it is held that the liability of the Insurance Company respondent No. 4 is co-extensive with the appellant and the respondent No. 3 and, therefore, the appellant, the respondent Nos. 3 and 4 are jointly and severally liable to pay the compensation awarded in favour of the respondent Nos. 1 and 2. The impugned Award accordingly stands modified with no order as to costs, and the cross-objections are dismissed.

14. The learned Advocate for the appellant as well as for the respondent No. 4 states that the appellant as well as the respondent No. 4 had deposited the amount during the pendency of the appeal. Needless to say that in case of execution of the impugned Award, the executing Court will have to take into consideration the fact about the deposit of the decretal amount in this Court.