Parkash Vati And Other v. The Delhi Dayal Bagh Dairy Limited

Mehr Singh, J.

1. This is a Plaintiffs appeal from the judgment and decree, dated August 21, 1952, of the First Class Subordinate Judge of Delhi.

2. Mohinder Gupta was the husband of Plaintiff No: 1 and father of Plaintiffs Nos. 2 to 5, of whom Plaintiffs Nos. 2 and 3 are his sons and Plaintiffs Nos. 4 and 5 are his daughters. They were minor when their father Mohinder Gupta died in consequence of an accident in these circumstances.

3. Mohinder Gupta deceased belonged to village Massorie, Meerut district of U.P. He supplied milk to the Delhi Dayal Bagh Dairy Limited, Defendant No. 1. On July 4, 1949, as usual, Mohinder Gupta was traveling in a motor vehicle of Defendant No. 1 driven by Defendant No. 2 (Gautam Dev), an employee of Defendant No. 1, from his village Massorie to New Delhi. The motor vehicle was bringing the milk supplied by Mohinder Gupta to Delhi to the premises of Defendant No. 1 for being tested, as the payment to Mohinder Gupta of the price of the milk and his commission was to be made on the basis of the test. The motor vehicle of Defendant No. 1 came into collision with a military truck between Jumna bridge and Shadhra (Delhi). In consequence Mohinder Gupta received injuries as a result of which he died on July 17, 1949. The Plaintiffs case was that the accident took place because of the rash and negligent driving and handling of the motor vehicle of Defendant No. 1 by its employee Defendant No. 2. The Plaintiffs calculated, under various heads, a total damage of Rs. 3,52,000/- to them because of the death of Mohinder Gupta, but they claimed against Defendants Nos. 1 and 2 Rs. I,50,0o0/-. Defendant No. 3 is the New Great Insurance Company of India Limited and it was impleaded as a party Defendant because it had insured the motor vehicle of Defendant No. I in regard to third party risk.

4. The Defendants resisted the suit but Defendant No. 2 in the end did not prosecute it and was proceeded with ex parte. So the suit was in substance resisted by Defendants Nos. 1 and 3. Defendant No. 1 denied that the accident was due to the rash and negligent driving of Defendant No. 2 and also denied his liability for damages in regard to the death of Mohinder Gupta on the ground that he had no business to travel on the motor vehicle. It was said by him that the amount of damages claimed was inordinately excessive. Defendant No. 3 admitting having insured the motor vehicle of Defendant No. 1 under a commercial vehicle policy, denied liability broadly on the grounds (a) that there was no privities of contract between it and the Plaintiffs who had therefore no claim against it, and (b) that under the amended Clause 3 of the Policy it was excepted from liability in a case of the present type.

5. The learned trial Judge has found as a matter of fact, which stands unchallenged even now, that the motor vehicle of Defendant No. 1 collided with the military vehicle because of the rash and negligent driving and handling of it by its driver Defendant No. 2. He has therefore come to the conclusion that Defendant No. 1 is liable for the tort of Defendant No. 2, its employee. But he has denied the decree to Plaintiff No. 1, the widow of deceased Mohinder Gupta, on the ground that under two policies of life insurance of the deceased she has already obtained a benefit of Rs. 19,804/1/- and so she has suffered no loss on account of his death. He has decreed the suit of Plaintiffs Nos. 2 to 5 for a total sum of Rs. 13,705/- distribution of which among them is shown in the decree, against Defendants Nos. 1 and 2 and against Defendant No. 4 as liquidator of Defendant No. 1. But the suit has been dismissed against Defendant No. 3 on the second ground urged by it as referred to above. However, Defendant No. 3 has-been left to its own costs, but though no costs have been allowed to Plaintiff No. 1, Plaintiffs Nos. 2 to 5 have been allowed proportionate costs against Defendants Nos. 1, 2 and 4.

6. This, as stated, is a Plaintiffs appeal against the decree of the trial Court in which in substance three claims are made. These claims are (a) that decree should have been made against Defendant No. 3 in view of the terms of the contract of insurance, (b) that the claim on behalf of Plaintiff No. 1, the widow of deceased Mohinder Gupta, should have been decreed, and (c) that the amount of compensation be raised to Rs. 20,000/-. There are cross objections by Defendant No. 3 claiming its costs in the trial Court. There is neither any appeal nor cross objections by Defendants Nos. 1, 2 and 4, but the learned Counsel appearing for Defendant No. 1 has tried to invoke the powers of this Court under Order XLI, Rule 33 of Code of Civil Procedure for interference on merits of the case in favour of that Defendant. This, however, in our opinion, is not a case in which benefit of that provision can be given to Defendant No. 1, who has allowed time to run and has neither appealed against the decree nor filed cross objections. If in fact there was any substance in any defence on its part, there appears to be no reason why it did not file an appeal in time or cross objections in time. No substantial reason has been advanced why the Court should interfere on behalf of Defendant No. 1 under that provision.

7. The amended Clause 3 of the Insurance Policy issued by Defendant No. 3 in favour of Defendant No. 1 with regard to the motor vehicle in question reads:-

1. For Clause 3 the following is substituted:

3. Liability at Law for compensation (including Law Costs of any claimant) in respect of the death of or bodily injury to any person caused by or arising out of the use (including the loading and/or unloading) of the vehicle but excluding liability in respect of:

(a) the death of or bodily injury to any person in the employment of the Insured arising out of and in the course of such employment, or

(b) the death of or bodily injury to any person (other than a passenger carried by reason of or in pursuance of a contract of employment) being carried in or upon or entering or mounting or alighting from the Motor Vehicle at the time of occurrence of the event out of which any claim arises ;

(c) the death or bodily injury caused by or arising out of the explosion of the boiler of the Motor Vehicle unless such death or injury is caused by or arises out of the use of Motor Vehicle in a public place in British India within the meaning of the Motor Vehicles Act, 1939 provided that the liability of the Company is limited in respect of any one claim or series of claims arising out of the one event to the sum stated in the Schedule hereto, including such Law Costs.

It will be seen that liability of the insurer, under this clause, is excepted in three cases, and in the case of exception (b) there is super added an exception to that exception whereunder the liability of the insurer is revived if a passenger is carried by reason or in pursuance of contract of employment on the insured motor vehicle. The learned trial Judge has come to the conclusion that the Plaintiffs are not entitled to the benefit of the provision in the policy because Mohinder Gupta was not traveling in the motor vehicle by reason of or in pursuance of a contract of employment. The learned Counsel for the Plaintiffs contends that under Clause 3 (b) of the contract of insurance, Mohinder Gupta deceased need not necessarily have been under a contract of employment with the owner of the vehicle, Defendant No 1, but if he in fact was under a contract of employment and because of the business connected with his employment under that contract he was traveling in the motor vehicle of Defendant No. 1, the liability of the insurer is revived under the said clause. In this respect he relies upon Izzard v. Universal Insurance Company Limited (1937) A.C. 773 in which case the motor vehicle had been insured under a commercial motor policy which carried a clause verbatim as the amended Clause 3 in the commercial vehicle policy between Defendants Nos. 3 and 1. The Privy Council repelled the argument that "contract of employment" should be construed as subject to the implied limitation "with the person insured by the policy". This contention was urged not only in relation to the clause in the insurance policy comparative to new Clause 3 in the insurance policy in this case, but also with reference 3 to Section 36 of the Road Traffic Act, 1930. The provisions of Section 95, which relate to requirements of policies and limits of liability, of the Motor Vehicles Act, 1939, are the same as the provisions of Section 36 of the Road Traffic Act, 1930. At page 782 Lord Wright observes:

I think the Act is dealing with persons who are on the insured vehicle for sufficient practical or business reasons, and has taken a contract of employment in pursuance of which they are on the vehicle as the adequate criterion of such reasons. But there is no sufficient ground for holding that this criterion should be limited to employees of the insured person.

Thus what the learned Counsel contends on behalf of the Plaintiffs is supported by authority, but it still leaves the question whether Mohinder Gupta deceased was on the motor vehicle of Defendant No. 1 for any sufficient practical or business reasons which had connection with his contract of employment or were in pursuance of that contract. It is true that he was on the vehicle in connection with his business of selling milk to Defendant No. 1. But there is absolutely no material in support of the contention on behalf of the Plaintiffs that he was under a contract of employment when on the motor vehicle of the Defendant in connection with business.

The evidence only discloses that he, along with 20 or 25 others, collected milk, and then he sold the milk to Defendant No. 1 and on that, apart from the sellers getting price of the milk, Mohinder Gupta deceased received a commission for collecting the milk and selling it to Defendant No. 1 at the varying rate from Re. 1/- to Rs. 2/-per maund. He was not employed by anybody nor was he employed by Defendant No. 1. He received commission for the particular transaction for which he was responsible but not because of any contract of employment. Therefore in this case although Mohinder Gupta was traveling in the motor vehicle of Defendant No. 1 in connection with his business of selling milk and it may be said that it was necessary for him to do so for the milk was to be tested at Delhi, but he was not under a contract of employment with anybody. The learned Counsel for the Plaintiffs suggested, but obviously not too seriously, that he may be regarded as under a contract of employment with himself, but of course that has no meaning at all. The consequence is that even having regard to the authority upon which reliance is placed by the learned Counsel for the Plaintiffs in this case, there is no claim against Defendant No. 3 on facts because Mohinder Gupta deceased is not shown to have been on the vehicle of Defendant No. 1 by reason or in pursuance of a contract of employment. The appeal in so far as it is against Defendant No. 3 must fail.

8. It is not denied that under the two policies of life insurance of deceased Mohinder Gupta, Plaintiff No. 1, his widow, has already received Rs. 19,804/1/-and the learned trial Judge very correctly disallowed the claim on her part because in her case that financial gain by her on account of death of her husband has to be taken into consideration in arriving at the figure of any loss suffered by her. The learned Counsel for the Plaintiffs has not, in the circumstances, pressed the claim on her behalf in this appeal.

9. As pointed out there is no appeal on behalf of Defendant No. 1 nor any cross objections and the finding of the learned trial Judge that the monthly income of Mohinder Gupta may safely be assessed at Rs. 180/- p.m., therefore, stands Unquestioned. But it has been contended by the learned Counsel for the Plaintiffs that under the two life policies the deceased was paying roughly a yearly premium which came to about Rs. 65/- per mensem and he must have had much more income, than has been found by the learned trial Judge, to have been able to make that payment regularly. On the other side, the learned Counsel for Defendant No. 1 has pointed out that if there was more income of the deceased, he would not have left his dependants in such a plight as to have been forced to institute the suit in forma pauperis. On the whole thus the finding of the learned trial Judge as to the monthly income of the deceased is sound and not open to objection. The learned trial Judge in considering the distribution of Rs. 180/- per mensem by the deceased has found that he was paying a premium of about Rs. 65/-on his life policy, was spending on his own maintenance an amount of Rs. 30/-and thus the remaining amount of Rs. 85/-per mensem was made available by him to his dependants. Out of this sum of Rs. 85/-he has apportioned Rs. 25/- to the wife and Rs. 15/- per mensem to each of the four children. This is a reasonable assessment of the distribution and no adequate reason has been advanced for interference with the same. The correctness of the ages of Defendants Nos. 2 to 5 is not questioned. But the learned Counsel for the Plaintiffs urges that there was no justification for the learned trial Judge to have calculated less in the case of the sons upto the age of 18 years, and in the case of the daughters upto the age of 16 years. The learned trial Judge was of the opinion that the sons will be major after attaining 18 years of age and the daughters would be married by the time each was 16 years of age. Although some thing can be said as regards the calculation of damages upto the age of majority in the case of sons, but in the case of daughters, for marriage, in these days, the age of 16 years appears to be somewhat low age and the tendency these days being that girls are married at a later age, it is reasonable that even in the case of the daughters the age for the matter of calculation of loss be taken as 18 years. The learned Judge on calculating the loss to each child according to their ages and upto the ages stated found them entitled to damages as below:

1.

Om Parkash Plaintiff No. 2.

Rs. 1890/-

2.

Tirloki Nath Plaintiff No. 3.

Rs. 2880/-

3.

Om Wati Plaintiff No. 4

Rs. 4160/-

4.

Satya Wati Plaintiff No, 5.

Rs. 4775/-

As already pointed out in the case of daughters the calculation has been upto the age of 16 years and we are of the opinion that it should be upto the age of 18 years. So in the case of each one of the Plaintiffs Nos. 4 and 5, her claim would be raised by Rs. 360/-. In other words in the case of both these Plaintiffs a total amount of Rs. 720/- is allowed in addition to what has been allowed to them by the learned trial Judge. Apart from this increase in the case of the claim on behalf of these two Plaintiffs, no case has been made out on behalf of the Plaintiffs for raising the - amount of total damage any further upto the figure of Rs. 20,000/-.

10. The consequence is that the appeal with regard to the claim against Defendant No. 3 is dismissed, that appeal on behalf of Plaintiff No. 1 is rejected, and that in so far as Plaintiffs Nos. 2 to 5 are concerned, an increase only in the case of each of Plaintiffs Nos. 4 and 5 in the amount of Rs. 360/- is allowed and no more. So that the appeal only succeeds partly on behalf of Plaintiffs Nos. 4 and 5, that in the amount of damages awarded to each by the learned trial Judge is to be added a further sum of Rs. 360/-otherwise the appeal fails The appeal of the Plaintiffs is decided accordingly and, in the circumstances of the case, the parties are left to bear their own costs in this appeal.

11. The question of the liability of Defendant No. 3 under the contract of insurance was not free from difficulty and so the trial Court was right in not allowing costs to this Defendant. There is apparently no ground for interference with the decree of the trial Court in this behalf so far as Defendant No. 3 is concerned. The cross objections of Defendant No. 3 are dismissed, but there is no order as to costs in the same.

D. Falshaw, J.

12. I agree.