H.G. Ramesh, J.
1. These two appeals arise out of a motor accident claim. M.F.A. No. 3576/99 is by the owner/Insured of the car bearing No. MYS 2993 against absolving his insurer of the liability to indemnify him and M.F.A. No. 3739/99 is by the claimant seeking for enhancement of compensation for the injuries he had suffered in a motor accident that occurred on 25.4.1993.
2. By the judgment impugned in these appeals, the Tribunal has awarded a compensation of Rs. 50,750/- along with interest thereon at 9% p.a. and has held that the accident was due to the rash and negligent driving of the car bearing No. MYS 2993 (in which the claimant was travelling) and the bus bearing No. KA - 15-621 and has apportioned the negligence between the two vehicles equally. Accordingly, both the owners of the vehicles are made jointly liable to pay the award amount in equal proportions. As the bus had been insured, the insurer of the bus was made liable to the extent of 50% of the award being the liability of the bus owner. However, the insurer of the car was absolved of the liability on the ground that the risk of the claimant, who was a passenger of the car (private car) was not required to be covered under the provisions of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the New Act' for short) as the policy- Ex.R-1 issued in respect of the car was only an 'Act policy'.
3. Learned Counsel appearing for the appellant (owner of the car) in M.F.A. No. 3576/99 submitted that the finding recorded by the Tribunal on the aspect of negligence requires to be interfered with as it is not based on a proper appreciation of the evidence on record. Without prejudice to the said contention, he also submitted that the Tribunal had erred in law in not making the insurer of the car liable as an insurer is required in law to cover the risk of passengers of a private car as per the provisions of the New Act. On this aspect, he relied upon the following judgments of this Court and of the Madras and Madhya Pradesh High Courts.
i) NEW INDIA ASSURANCE COMPANY LTD v. RAJENDRA SINGH 2000(2) Kar.L.J. 207
ii) UNITED INDIA INSURANCE CO. LTD v. JAHUR BEGAUM ILR 2000 Kar 3796
iii) ORIENTAL INSURANCE CO. LTD. AND ANR. v. MINAXI AND ORS. ILR 1999 Kar 3219
iv) NATIONAL INSURANCE CO. LTD. v. SMT. RASHEEDA AND ANR. ILR 1997 Kar 2697
v) NEW INDIA ASSURANCE CO.LTD. v. VIJAYKUMAR AND ORS. 2003 ACJ 523 (MAD)
vi) ORIENTAL INSURANCE CO. LTD. v. RADHA RANI1999 ACJ 1524 (M.P)
4. Sri M.S. Mandanna, learned Counsel appearing for the Insurance Company submitted that the policy issued was an 'Act policy' and the risk of passengers of a private car is not compulsorily required to be covered even under the New Act.
5. In M.F.A. No. 3739/1999, the claimant has sought for enhancement of compensation. The appellant's counsel was absent. In the interest of justice, I heard the learned Counsel appearing for the parties on this aspect also.
6. On the contentions urged, the following three questions fall for determination in this appeal:
i) Whether the finding of the Tribunal on the aspect of negligence is correct?
ii) Whether the compensation assessed by the Tribunal requires to be enhanced?
iii) Whether the Tribunal had erred in law in not making the insurer of the car liable to indemnify the insured?
i) Re: Negligence:
7. The evidence on record would disclose that the accident had occurred almost on the middle of the road due to collision of both the vehicles namely the car bearing No. MYS 2993 and the bus bearing No. KA 15-621 which were coming from the opposite directions. The drivers of both the vehicles had not tendered any evidence to rebut the evidence adduced by the claimant. The police also had prosecuted the drivers of both the vehicles for rash and negligent driving. On the evidence on record, the finding of the Tribunal that the accident was due to the rash and negligent driving of both the vehicles in equal proportions cannot be said to be erroneous to call for interference in appeal. This takes me to the aspect of quantum of compensation.
ii) Re: Quantum:
The evidence would disclose that the claimant had suffered fracture of right femur (thigh bone) and fracture of the 8th rib on the right side. Two Doctors had been examined as PWs 2 and 3 in support of the claim. The extent of disability is assessed at 20 to 25%. As evidenced by the bills produced before the Tribunal, the claimant/ appellant had incurred an expenditure of Rs. 8,550/-.
9. The Tribunal had assessed the compensation at Rs. 50,750/- under the following heads:
i) injury, pain and suffering
Rs. 15,000/- +Rs/ 10,000/-
+Rs/ 1,000/-+Rs. 12,000/-) Rs. 38,000-00
ii) Medical expenses Rs. 8,550-00
iii) Diet, attendant and incidental charges Rs. 3,600-00
iv) Loss of income during treatment Rs. 1,600-00
10. On a re-appreciation of the evidence on this aspect, I find that the compensation assessed by the Tribunal is on the lower side having regard to the nature of injury and the extent of disability suffered by the claimant. I re-assess the compensation under the following heads:
i) Injury, Pain and suffering Rs. 30,000-00
ii) Loss of income during
the period of treatment Rs. 5,000-00
iii) Loss of amenities Rs. 25,000-00
iv) Medical and incidental expenses Rs. 15,000-00
Total Rs. 75,000-00
Accordingly, the claimant would be entitled to a compensation of Rs. 75,000/- as against Rs. 50,750/-awarded by the Tribunal. This takes me to the aspect of liability of the insurer of the car.
iii) Re. Liability of insurer of the car:
11. The question is as to whether an insurer is compulsorily required to cover the risk of passengers of a private car or of any passenger carrying vehicle in an 'Act Policy' issued under The provisions of the New Act.
12. The law on this aspect is explained in the judgments referred to above and relied on by the learned Counsel for the owner of the car. The said judgments would support the contention of the learned Counsel.
Apart from the said judgments, a Full Bench of the Kerala High Court in ORIENTAL INSURANCE COMPANY LTD. v. AJAYAKUMAR 1999 ACJ 1499 has also considered this aspect in great detail. The following observations made by the Full Bench of the Kerala High Court require to be noticed.
"11. It is in the light of the above we have to examine the effect of deletion of proviso (ii) While enacting Section 147 of the Motor Vehicles Act, 1988, Clause (b) (i) of Section 147 now stands limited only by proviso (i) and also the contractual liability which was incorporated originally as proviso (iii) in Section 95(1)(b), but as proviso (ii) in Section 147(1)(b). Proviso (i) deals with only the case of employees. The liability referred in Clause (i) would apply to the death of or bodily injury to 'any person'. Since the limitation brought under proviso (ii) that is, by excluding liability in respect of death of or bodily injury to a passenger except a passenger who is carried for hire or reward or by reason of or in pursuance of contract of employment is no longer available in the statute. Therefore, it has to be taken that the term 'any person' referred in Clause (b)(i) would take in all passengers for hire or reward or otherwise. We do not find any merit in the contention raised by learned Counsel for the appellant that if the term 'any person' in Clause (b)(i) would take in passengers in private vehicle carried in for hire or reward then it was unnecessary for the legislature to bring in the amendment under Act 54 of 1994 to include owner of the goods or his authorized representative carried in the vehicle in Clause (i). As was clearly observed by the Supreme Court in Mallawwa v. Oriental Insurance Co. Ltd., 1999 ACJ 1 (SC), it would not be proper to consider a goods vehicle as a vehicle in which passengers are carried normally. It was under these circumstances, an amendment was required to include the owner of the goods or his authorized representative carried in the vehicle by specific amendment in Clause (i).
12. In Road Transport Co. v. Bhan Singh, 1998 ACJ 1101 (SC), a claim put forward for compensation in respect of death of 35 passengers travelling in a bus came up for consideration. The contention raised on behalf of the appellant was that the claim in respect of the death of the passengers in the bus should be considered under Section 95(1)(b)(i) and if that be so, the limitation regarding the quantum of compensation provided under Section 95(1)(b)(iI) will not be applicable. It was submitted that wording of Section 95(1)(b)(i) is very wide to include a passenger in a bus, since the words used are 'any person'. This contention was rejected by the Supreme Court. It was held that Section 95(1)(b)(ii) being a specific provision made in respect of passengers of a public service vehicle, it is that provision which is applicable in the case and not the general provision contained in under Section 95(1)(b)(i), when the insured incurs liability in respect of the passengers traveling in his public service vehicle. As mentioned earlier, it was proviso (ii) which excluded passengers in private vehicle from the net of Section 95(1)(b)(i), since that proviso is not available in Section 147 of the Motor Vehicles Act, 1988, the general provision in Clause (i) has to be taken as applicable to passengers carried in private vehicles not for hire or reward. A similar view was taken by the Madhya Pradesh High Court in Oriental Insurance Co. Ltd., v. Radha Rani, 1999 ACJ 1524 (MP). It was held that an Act policy under Section 147 would cover occupant of a jeep who is carried without hire or reward.
13. We, therefore, fully agree with the view taken in Appukuttan's case, 1995 ACJ 888 (Kerala), that a gratuitous passenger in a private vehicle is also covered by the Act policy under Section 147 of the Motor Vehicles Act, 1988
13. It is relevant to notice the judgments of the Supreme Court in:
(i) NATIONAL INSURANCE CO. LTD v. AJIT KUMAR 2003 AIR SCW 4120
(ii) ORIENTAL INSURANCE CO. LTD. v. DEVIREDDY KONDA REDDY 2003 AIR SCW 513 and
(iii) NEW INDIA ASSURANCE CO. LTD. v. ASHA RANI 2002 AIR SCW 5259
In none of these judgments, the aspect of insurance cover relating to passengers in passenger carrying vehicles fell for consideration. The question that was considered by the Supreme Court was as to whether an insurer is required in law to cover the risk of passengers in a goods carriage. The Supreme Court answered it in the negative. No judgment of the Supreme Court holding that an insurer is not required under the New Act to cover the risk of passengers in a passenger carrying vehicle was brought to my notice.
14. In this context, it is relevant to note that a Division Bench of the Kerala High Court in a recent decision in UNITED INDIA INSURANCE CO. LTD v. SUNEETHI RAMACHANDRAN 2003(2) KLT Short Notes 56 (C.No. 75) has considered this aspect. The said report reads as follows:
"When a policy of insurance 'is an act policy', it does not necessarily mean that the insurance company will stand absolved from the liability in respect of a pillion rider of a motorcycle. When there is a binding decision with reference to the insurer owning to a pillion rider, necessarily, the observations contained in the decision relating to a passenger carried in a goods vehicle cannot have any relevance in the fact situation. Therefore, the insurer cannot avoid the liability towards the pillion rider."
The aforesaid report would indicate that the Division Bench had referred to the judgments of the Supreme Court in ASHA RANI and DEVIREDDY KONDA REDDY and also the judgment of the Full Bench of the Kerala High Court in AJAYAKUMAR's case referred to above.
15. In view of the change in law as explained by this Court and the High Courts of Kerala, Madras and Madhya Pradesh in the above referred decisions, I hold that an insurer under the New Act is compulsorily required to cover the risk of passengers of a private car or of any passenger carrying vehicle including a two wheeler. Accordingly, I hold that the insurer of the car is liable to indemnify the insured to the extent of his liability arising out of the claim in question.
16. In the result, I make the following order:
i) The compensation of Rs. 50,750/- awarded by the Tribunal is enhanced to Rs. 75,000/-. The enhanced compensation of Rs. 24,250/- shall carry interest @ 6% p.a. from the date of claim petition till the date of deposit.
ii) The dismissal of the claim as against R2 is set aside. The appellant and respondent Nos 2 to 5 in M.F.A. No. 3576/99 are jointly and severally held liable to pay the award of the Tribunal as also the amount enhanced in this appeal. However, respondent Nos.2 and 5 being insurers of the vehicles shall deposit the amount payable with the Tribunal within twelve weeks from today.
iii) The Tribunal shall pass appropriate orders with regard to investment/disbursement of the award amount in the light of the guidelines laid down by the Hon'ble Supreme Court in GENERAL MANAGER, KERALA STATE ROAD TRANSPORT CORPORATION v. MRS. SUSAMMA THOMAS AND ORS.
iv) The appellant in MFA 3576/99 is entitled for refund of the amount deposited by him with this Court.
v) Both the appeals are allowed in the above terms. No costs.