By S.A. Karim, Advocate, Thiruvananthapuram
Debtor Defeats Surety
(By S.A. Karim, Advocate, Thiruvananthapuram)
In a legal borrowing there are minimum three parties, creditor, debtor and surety. With solvent sureties a debtor can secure loan either from government schemes, financial institutions, semi-government and government controlled institutions. Private party uses the same principle in lending and borrowing.
The liability of debtor and surety is joint and several. It means creditor can realise the principal amount and interest either from the debtor or the surety or both. This is the law on the point. Section 128 of the Contract Act, 1872 reads :-
"The liability of the surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract."
This is the most abused and misused section in a loan transaction. Under this section, the surety cannot say, realise the amount from the debtor first and then turn against surety. The choice is with the creditor.
Using this legal position, clever debtor escapes liability and it becomes a death knell to the surety. In all the borrowing the beneficiary is the debtor and the surety is the name lender. But in effect the surety becomes the principal debtor because the liability is joint and several. The section is not expected to benefit one and defeats another. So, the law of joint and several liability must go lock, stock and barrel. The debtor has to be fixed for the liability he makes.
By Kaleeswaram Raj, Advocate
Courting a Strange Predicament
(By Kaleeswaram Raj, Advocate, Ernakulam)
A lawyer who performed too well for his client was jailed for that reason, during the French revolution. This is what Jacqueline Donnelly said in her short account of the ‘palace of justice’ in Paris. It was an 18th Century episode. A strange remnant of pre democratic vintage.
This year, a lawyer in Kerala was put to a stranger predicament. It occurred in the court of the 1st Class Judicial Magistrate, Chittoor. An application for bail was moved on behalf of an accused in an abkari case. The accused was denied bail and remanded in jail. However, the man soon escaped from Police custody. Thereupon the lawyer who moved the bail application was remanded in jail. An application for bail was moved on 13th of April, the date of remand itself. For taking a decision in the application the Magistrate took four days and ultimately the bail was denied.
This incident reflects the nature of our justice delivery system at the lower level. The accused escaped from the police custody, and in the words of the Magistrate, “there was failure on the Head constable’s part”. But the constable was spared and case was registered against the lawyer !. The offences alleged are under Sections 224, 225, 120(B)(1) r/w S.34 of IPO. Again, the District Sessions Judge did not take a prompt decision on the application for bail filed by the lawyer. Ultimately, justice K.T.Sankaran of the Kerala High Court intervened and passed an order on 19.4.2007 directing release of the lawyer.
I do not propose to deal with the sustain ability of the allegations against the counsel. The Magistrate order ran to 6 pages, there were sentences on the commission of offence and the eligibility of the accused for leniency’. The Magistrate, took himself as a centre of power, where the accused should pray for ‘mercy’. It is a well known principle of adversial practice that while deciding the question of bail, the court should not enter a finding regarding the guilt or otherwise of the accused.
The High Court convened a special sitting to undo the injustice. It said that “it is interesting to note that no case has been registered against the police constables who are primarily answerable for the escape of the accused”. The Court took note of the submission that the only material for the Magistrate was the testimony of the police. Advocate’s robes were seized as material objects in the case; the High Court said that it was unusual. It also directed transfer of the case from the present court.
This is what the Magistrate said in his order-
“In any view of the matter, the alleged facts show that he has intentionally aided the rescue of the 1st accused”.
Thus allegation becomes the proof. It becomes ‘finding’. Even Iraq under Bush or Taliban under fanatics were unfamiliar with this kind of ‘judicial’ reasoning.
The Magistrate further said -
“ The allegation that this petitioner had received a mobile call immediately before the escape of the 1st accused and immediately after the receipt of such call he had told something to the 1st accused and 1st accused had run away and the further act of the petitioner herein going away as if nothing had happened is a very grave allegation”.
Again, allegations and findings are recklessly mixed, by doing violence to law and language.
The entire judicial action is based on a statement given by a Head Constable. Another circumstance to presume the guilt of the lawyer is that “he (the advocate) is said to have been present in court premises”. Brilliant reasoning, indeed !
The manner in which the Magistrate has dealt with the case shows the negation of Article 22 of the Constitution which says about the right of an arrested person to consult the lawyer. The order also ignores the spirit of Section 126 of the Indian Evidence Act which talks about the confidential nature of professional communication. (“ The counsel had told something to the 1st accused”, the Magistrate said).
If this is how a lawyer attending the criminal court is dealt with, the unreported and unnoticed predicament of the ordinary people at the mofussil level is a matter of concern. There is no evaluation or criticism regarding the way in which the lower judiciary functions. It should be ensured that navity is not celebrated in the court of initial jurisdiction, at the cost of the public.
Mr.Haridas is more an illustration, than a victim. It is not the lawyer, but individual liberty and professional freedom, that are jailed. It is high time that the day to day function of lower judiciary is put to administrative and judicial scrutiny.
The High Court, in a recent decision in Biju S.Praveen’s case, 2007 (2) KLT 280, held -
“criminal courts should always be careful while passing orders on bail applications which in effect deal with personal liberty. In cases where the court decides to send an accused to custody pending trial, it must be ensured that the court applies its mind judicially and judiciously with particular reference to the facts and circumstances of the case............ The bail application moved has to be considered and orders should be passed on the same day itself since personal liberty of an accused cannot be curtailed in a whimsical or disdainful manner.
“The above observations have been made to alert the subordinate courts to ensure that the accused in criminal cases are not condemned to custody as a matter of course without a proper application of mind. Judicial process has to be blended and tempered with humaneness. Personal liberty guaranteed to every citizen has to be respected”.
The above judgment was published in Kerala Law Times dated April 23, 2007.
Liberty has become a causalty. Jail is the rule and bail, an exception. Lawyers too are not exceptions.
By O.V. Radhakrishnan, Senior Advocate, High Court of Kerala
Quality of legal service -- Seniors’ duty to ensure ethical control
(By O.V. Radhakrishnan, Sr. Advocate)
Today’s subject of dialogue and discussion is “Quality of Legal Service-Seniors’ Duty to Ensure Ethical Control” which sounds a bit of a misnomer. The meaning of the word ‘ethic’ is ‘the moral principles by which any particular person is guided; the rules of conduct recognized in a particular profession or area of human life’. The expression ‘control’ connotes power to issue directions regarding how a thing may be done by a superior authority to an inferior authority. The word ‘control’ suggests check, restraint or influence. The ethics of advocacy implies control of behaviour and the coinage ‘ethical control’ appears to be inept and inappropriate. Likewise to ascribe a duty to a Senior is to claim that he ought to perform a certain act. The Advocates Act, 1961 or the Bar Council of India Rules made thereunder do not impose a duty on the Seniors to exercise ‘ethical control’ and hence there is no legal duty in the sense it is not legally recognised. Necessarily, violation of it is no wrong and respect for it is no duty. What the topic refers to appears to be the duty to emphasise the maintenance of professional ethics.
Professional ethics and morality are not synonymous with professional etiquette. Professional etiquette requires observing decency, elegance and dignity by the members of the profession. The expression “professional ethics” has been explained as “in your dealings in and outside court, you should always bear in mind that every member of the bar is a trustee for the honour and prestige of the profession as a whole”. It is the quintessential ethics of advocacy.
The quality of one’s legal service is to be gauged by the excellence one attains in the profession. If one maintains quality of legal service it can be unhesitatingly said that he is doing justice to his client. The profession of law is a human institution and the lawyers are the architects of the profession. Legal profession is not a trade or business but is a noble profession. The credibility and reputation of the profession depends upon the manner in which the members of the profession conduct themselves and the maintenance of the quality of legal service. It is the duty of the advocate to safeguard the law and assist in the fair and impartial administration of justice. His duty is to apply legal doctrines so as to meet the broadening requirements of our growing country and gradual illumination of the public conscience.
In maintaining purity and quality of legal services, the advocates have a vital role to play as a social servant. Every one committed a free and independent judiciary must do their best to see that Courts functions well.
Advocacy is a noble profession. Advocates should be noble in every thought and every deed. “The more nobly a man wills and acts, the more avid he becomes for great and sublime aims to purpose”. Only those capable of labour with maximum patience, self-confidence and faith are to enter the profession. Let none with a defeatist and pessimist mentality and irresolute mind enter it. Profession of law calls for great knowledge and greater intellectual grasp of legal knowledge. It is in the hands of the members of the legal profession to improve the quality of the legal service they enter, both to the litigant public and to the courts and also to brighten their image in the society.
The advocate’s paramount duty is towards his client. He has an equal duty to the Court apart from his obligations to the society. The fundamental role of the advocate, as Felix Frankfurter understood, “is not to enlarge the intellectual horizon. His task is to seduce, to seize the mind for a predetermined end, not to explore paths to truth.” At the same time, in the process he shall not equivocate with the judge. The advocate shall not feel dissuaded from discharging the task of defending the case of his client, no matter how hopeless the cause, however unwarrantable the outcome would be, the great tradition of the advocacy demands him to defend his client with all his ability at his command, unmindful of the antipathy of the judges and the views of the society in general.
The profession of the advocate is as old as the civilization. It is said : The lawyer stands today as he has always stood, a product of the civilization which he himself exerted no small influence in the making. Where there is no law, there is neither civilization nor lawyer. Ethics is the basis of a civilized and organised society.
Professional ethics are founded on the high tradition of the profession. The legal profession has been enjoying traditional prestige and honour from the date it came into being. The Rome has left on record her estimate of her lawyers when she declared in her Civil Law, that armed warriors, whose weapon was the sword were not only the soldiers of the empire; advocates; who fought for Rome, when they exerted glorious gift of eloquence in defending the lives and fortunes of their fellow-citizens in upholding the cause of the poor and needy and helping those to right who suffered wrong.
Now, we will examine what are the ‘acceptable advocacy’. The dignity, independence and integrity are the qualities, the advocates are to maintain and uphold at all times. To identify the client’s interest too closely with his own particularly of the politically committed lawyer does not befit an advocate of his position. Lord Esher as early as 1889 had declared that the advocate is not “bound to degrade himself for the purpose of winning his client’s case”. Your function is to put your client’s case in the best light that is possible. The Bar Council of India Rules directs that the advocate shall during the presentation of his case and while otherwise acting before a Court, conduct himself with dignity and self respect and shall not show servile but a respectful attitude. The advocate shall bear in mind that the dignity of the judicial office is essential for the survival of a free community and maintenance of the rule of law. The advocate shall restrain and prevent his client from resorting to sharp or unfair practices and shall refuse to represent the client who persists in such improper conduct. The advocate shall not use intemperate language during arguments in Court and shall avoid scurrilous attacks in pleadings. Another ineluctable aspect to be discussed is the duty of the advocate towards his client and the legal morality of the profession. The advocate is bound to accept any brief although special circumstances may justify his refusal to accept a particular brief. The advocates are required to give reasonable and sufficient notice to the client before withdrawing from engagement and he shall refund such part of the fee as has not been earned. The advocate shall also make full and frank disclosures to his client relating to his connection with the parties and any interest in or about the controversy as are likely to affect his client’s judgment in either engaging him or continuing the engagement. The advocate shall defend a person accused of a crime regardless of his personal opinion about the guilt of the accused. The loyalty of the advocate is to the law and the advocate shall not make suppression of materials capable of establishing the innocence of the accused. The advocate shall not stipulate for a fee contingent upon the result of litigation or agree to share the proceeds thereof.
Presently there is a tendency for the advocates to indulge in public interest litigations. In a recent decision in Datta Raj Nathuji Thaware’s case [(2005) 1 SCC 590] it has been exhorted that “It is a disturbing feature which needs immediate remedial measure by the Bar Councils and the Bar Associations to see that the process of law is not abused and polluted by its members. It is high time that the Bar Councils and the Bar Associations ensure that no member of the Bar becomes party as petitioner or in aiding and/or abetting files frivolous petitions carrying the attract brand name of “Public Interest Litigation”. That will be keeping in line with the high traditions of the Bar. No one should be permitted to bring disgrace to the noble profession.”
It is to be remembered that the advocate is a representative but not a delegate or a mere mouthpiece of his client. The office of the advocate is a higher one. The advocate gives his client, the benefit of his learning, his talents and his judgment. The advocate shall not knowingly mis-state the law or the facts. The advocate has a prior and perpetual retainer on behalf of truth and justice and no law can discharge him from that primary and paramount retainer and no democratic Government bound by the rule of law can make such a law as truth and justice are the very foundation of the rule of law.
The advocate should always be thorough with the facts of the case and he should be up-to-date with regard to the law and the rulings on the subject. The client should not be misled into believing about the prospects of winning his case by the advocate and he shall not tell about his personal intimacy with the judicial officers and shall not give any assurance that he would win the case with a view to solicit the case or to take exorbitant fees. The advocate has to increase his learning and wisdom and I consider study and observation as an essential part of lawyer’s professional ethics. Remember a seasoned lawyer should never lose mastery of himself.
The advocate’s duty to colleagues is also worth mentioning here. The advocate shall not solicit work or advertise either directly or indirectly through advertisements, personal communications, interviews and by furnishing or inspiring News paper comments or producing his photographs to be published in connection with the cases in which he has been engaged or concerned. Soliciting legal business is categorically prohibited by Rule 36 of the Bar Council of India Rules. Pecuniary gain need not be a significant motive for the solicitation. Under the Rules any sort of solicitation of work or advertising either directly or indirectly is not permitted. Therefore, participation in interviews in pending cases and cases relating to prospective clients amounts to solicitation and also involves advertising and publicity. By public interviews a lawyer shall not make any comment regarding the innocence or otherwise or involvement or not as it would not only influence the investigation and also is likely to influence the mind of the judges. Legal Seminars, the audience of which includes prospective clients can be viewed as both a form of public speaking and solicitation. Seminar speakers who do not emphasise their professional experience or reputation or of his firm shall not be deemed to be in-person solicitation. In seminar speaking the lawyer shall not undertake to give individual advice. The modern trend in foreign countries is web-advertisement for solicitation and publicity. Formulation of a general ethical guideline in regard to lawyer advertising, solicitation and publicity is under consideration of the foreign countries. The All India Bar Association has asked the Bar Council of India to come out with clear guidelines on whether or not advocates can solicit work through advertisements in News Papers or by creating Web sites informing about their activities. The names of some lawyers are found in web site particularly in Google search and complaints are being received by the State Bar Councils. The issue of advertisements by advocates is still a grey area and the Bar Council of India should take a definite stand on this question to dispel the doubts of legal fraternity. There is a strong view that under Rule 36 and 37 of the Bar Council of India Rules an Indian Lawyer is not allowed to advertise himself or his firm through web sites or brochures like foreign firms.
The media publicity through news papers, news magazines or electronic media like television has an intoxicating influence on advocates young or old. Some go to the floor of the television studio at their beck and call for speaking about the proceedings pending before Courts and making derogatory statements against the colleagues and the Courts. It has a pernicious effect on the working of the judicial system and strikes at the legitimacy of the right to freedom of speech and expression. It is exasperating and is a clear breach of standards of professional conduct and etiquette.
It is also worth mentioning that senior-junior relationship shall always be maintained as cordial and the junior shall always maintain honesty and loyalty in all dealings with the senior. A junior lawyer should be a walking stick and not a crutch. The present phenomena is that advocates immediately after their enrolment are starting practice without attending the chamber of the seniors and the senior advocates have no role to ensure observance of professional ethics by such juniors. There are various branches in the profession which can be directly entered into without the training and guidance under a senior. The cases relating to Motor Accident Claims, Land Acquisition cases, cases coming under Consumer Protection Act, petty offences triable by Magistrate Courts and the like can be handled by a raw junior. To a large extent tax practitioners appearing before the authorities also may not require training under a senior lawyer.
One cannot shut his eyes to the fact that a senior-junior relationship among the lawyers is not one as traditionally understood in the days of Gurukula practice. The senior advocate has no direct control over a junior in maintaining the quality of service being rendered by junior lawyers except that the senior lawyers should stand out as role model for them by observing professional ethics and moral duties. It would operate as conditioned reflexes on the junior lawyers. In order to improve the quality of service it is highly necessary that the Bar Council makes a rule that each and every person enrolled as an advocate shall initially be attached to a senior advocate having more than 10 to 15 years standing and having good command of work at least for five years to learn the rules of the game. If so, the present running after for brief-catching, touting and adopting unprofessional means to procure business by the cub lawyers could be brought down to a great extent. The time-honoured tradition of the bar is that an advocate shall not seek business but business must seek for him, so that he can comport himself with dignity and self-respect.
Thank you
By Dr. Mariamma A.K., Lecturer, GLC, Calicut
A COMMENT ON MATHEW JOSEPH v. JANAKI
(By Dr. Mariamma A.K., Lecturer in Law, Government Law College, Calicut)
The decision of the Kerala High Court in Mathew Joseph v. Janki (2007 (1) KLT 742 (F.B.) assumes great importance due to various reasons, The point of law laid down by the court does not clear the law or the interpretation but it was a judgment delivered on a misconception of facts based on the erroneous reference order of the Division Bench of Kerala High Court.
The reference order as reported in KLT 2007 (1) page 748 reads as follows:-
“ The Apex Court in the above decisions just followed the decision in New India Assurance Co. Ltd. v. Asha Rani & Others (2003 (1) KLT 165 SC) and stated that statutory policy will not cover the death or bodily injury suffered to gratuitous passengers. Learned counsel for the appellant referred to the decision of the Supreme Court in Asha Rani’s case (supra) and submitted that Asha Rani’s case (supra) related to coverage of passengers in a goods vehicle. However, it classifies the claims into three categories i.e.
(1) Cases covered under the provisions of the Motor Vehicles Act, 1939
(2) Cases covered under the provisions of the Motor Vehicles Act, 1988 prior to amendment in 1994, and
(3) Cases covered under the Motor Vehicles Act, 1988 after the amendment in 1994.
It was pointed out that in Tilak Singh’s case (2006 (2) KLT 884 SC), the accident occurred on 23-3-1989. i.e. before the 1988 Act came into force on 01-07-1989 when the 1939 Act was in force and it will come under the first category and there is no dispute that in the first category cases passengers are not covered even as per earlier decisions of the Apex Court. However, there is no decision with regard to the second or third categories for liability of Insurance Company for passengers in a private vehicle after the introduction of new 1988 Act which came into force with effect from 1-7-1989 and after the amendment of the above Act in 1994. Since already there is a Full Bench decision of this Court and large number of cases are pending and Insurance Company is taking the stand that in view of the decision in Tilak Singh’s case (supra) the Full Bench decision is no more good law, we are of the opinion that the matter should be considered by the Full Bench. Hence, we adjourn the matter to be placed before the Hon’ble Chief Justice for appropriate orders”.
But in United India Insurance Co v. Tilak Singh (supra), the third paragraph reads like this:-
“ 3. On 23-3-1989 the scooter was admittedly sold by Respondent 5 to Respondent 1 Tilak Raj. It is also an admitted position that the registration certificate of the scooter was transferred in the name of Tilak Raj but no notice there too was given by the transferor, Respondent 5 to the appellant Insurance Company for transfer of the insurance policy and the insurance certificate in the name of the transferee i.e. Respondent 1. With effect from 1-7-1989 the Motor Vehicles Act, 1939, (here in after referred to as “the 1939 Act” ) was replaced and the Motor Vehicles Act, 1988 (here in after referred to as “the 1988 Act” ) came into force. On 31-10-1989 one Rajinder Singh, who was riding as a pillion rider while the scooter was being driven by Respondent 1, died as a result of an accident..................”
From the above, it is very clear that on 23-3-1989 the scooter was sold and on 31-10-1989, Rajinder Singh, who was the pillion rider died as a result of an accident.
But the Reference Order states that the accident occurred on 23-3-1989. That means, it is an error, i.e. instead of 31-10-1989, 23-3-1989 was treated as the date of accident. The date in this case has got great significance because Motor Vehicles Act 1939 was repealed with effect from 1-7-1989 and the 1988 Act came into effect. When 23-3-1989 was treated as the date of accident, provisions of the 1939 Act will be applicable. But in fact the accident occurred only after the 1988 Act came into force. The same was clarified in the Tilak Singh’s case (supra) itself. Paragraph 13 reads as follows:-
“In our view, it is not the transfer of the vehicle but the accident which furnishes the cause of action for the application before the Tribunal. Undoubtedly, the accident took place after the 1988 Act had come into force. Hence it is the 1988 Act which would govern the situation.”
Therefore, the decision of the Full Bench in Mathew Joseph v. Janaki (supra) is no longer good law as it has mistaken the Supreme Court decision. The Motor Vehicles Act 1994 amendment came into effect on 14-11-1994 and the accident in this case had taken place only on 9-1-1995. In the reference report itself it is stated that:
“however, there is no decision with regard to the second or third categories for liability of Insurance company for passengers in a private vehicle after the introduction of new 1988 act which came into force with effect from 01-07-1989 and after the amendment of the above Act in 1994”.
After the 1994 amendment Act, Section 147(1)(b) reads as follows:-
(i) insures the person or classes of persons specified in the policy to the extent specified in sub Section (2)-
(i) against any liability which may be incurred by hi™ in respect of the death of or bodily [ injury to any person including owner of the good* or his authorized representative carried in the vehicle ] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
The amendment to Section 147 makes it very clear that all the passengers including the owner of the vehicle are well within the coverage of insurance policy. More over, the Hon’ble Supreme Court in B.V.Nagaraju v. M/s Oriental Insurance Co. Ltd. (1996 (3) CPR 222), held that exclusion term of the Insurance Policy must be read down so as to serve the main purpose of policy that is, Indemnify the damage caused. The above judgment reads as follows:-
“Not withstanding the general ability of contracting parties to agree to exclusion clauses which operate to define obligations there exists a rule usually referred to as the ‘Main Purpose Rule’, which may limit the application of wide exclusion clauses defining a promisor’s contractual obligations. For example, in Glynnn v. Margetson & Co. (1893 AC 351, 357 ) Lord Halsbury, L.C stated: It seems to me that in construing the document, which is contract of carriage between the parties, one must in the first instance look at the whole instrument and not at one part of it only. Looking at the whole instrument and seeing what one must regard... as its main purpose, one must reject words, indeed whole provisions, if they are inconsistent with what one assumes to be the main purpose of the contract.
Although this rule played a role in the development of the doctrine of fundamental breach, the continued validity of the rule was acknowledged when the doctrine was rejected by the House of Lords in Suissee Atlantique Societed’ Armement Maritime S.A. v. N.V. Rotterdamsche Kolen Contrale (1967) 1 A C 361. Accordingly, wide exclusion clauses will be read down to the extent to which they are inconsistent with the main purpose or object of the contract”.
Supreme Court held that in accord with Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan & Others ((1987) 2 SCC 654) the exclusion term of the Insurance policy must be read down so as to serve the main purpose’ of the policy that is indemnify the damage caused to the vehicle, which we hereby do”.
Again in the case of M/s. Modern Insulators Ltd. v. The Oriental Insurance Co. Ltd. (2000 (1) C P R 93 ), Supreme Court held that “in case where the exclusion clause not included in policy nor disclosed to insured, the insured not responsible to call for terms and conditions and the Insurance Company cannot claim benefit of exclusion clause.
In that case, the insured was supplied with a cover note and the schedule of the policy. The other terms and conditions containing the exclusion clause were not communicated to the insured. Supreme Court held that it is the fundamental principle of Insurance Law that utmost good faith must be observed by the contracting parties and good faith forbids either party from non-disclosure of the facts which the parlies known. The insured has a duty to disclose and similarly, it is the duty of the Insurance Company and its agents to disclose all material facts in their knowledge since obligation of good faith applies to both equally.
As the above terms and conditions of the standard policy where in the exclusion of the clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, the respondent ( Insurance Company) cannot claim the benefit of the said exclusion clause.”
The reasoning given in the case Mathew Joseph v. Janaki (Supra) is uncomfortable and against public policy. The whole exercise undertaken by the Pull Bench of High Court of Kerala seems to give a clean chit to Insurance Companies from paying compensation to the injured by forgetting the basic object of introducing statutory insurance of vehicles or the Main Purpose Rule. In paragraph 9 Court states as follows:
“ 9. The Act by S. 146, generally requires coverage of compulsory insurance as against third party risks. Additionally, in view of S.147, insurance coverage is mandatory, as far as specified groups and claims are concerned. No doubt the owner of the vehicle will have to compensate loss arising out of a variety of circumstances, but the statute does not interfere with his discretion to cover or not to cover such risks in a manner he decides. He can be confident of meeting the claims from his own funds: he may get insurance protection for any such contingencies. The decision is expected to be taken by him, and an insurer can be answerable only to the risk about which coverage has been sought far and secured, of course in consonance with public policy and accepted parameters.....”
The above said observation made by the Court does not stand to logic or reasoning as the owners do not take policies with special coverage to pillion riders and gratuitous passengers in private vehicles, either because of their ignorance about the technicalities of insurance and decisions of courts on that point or due to the knowledge that they need not pay anything from their pocket by transferring their assets if they are solvent or simply pleading ‘no means’ in case of insolvent. Virtually the hapless victims or legal heirs are the loosers simply by holding an award in favour of them but impossible to execute. In short, owners’ confidence will never save the victims/ legal heirs.
More over, the finding of the court that United India Insurance Co. Ltd. v. Appukuttan (1995 (1) KLT 807) to be deemed as wrongly decided’ was with out assigning sufficient reason for that. In that case it was held that Insurance Company is not absolved from the liability in respect of pillion rider of a motor cycle.
By applying these principles, all the passengers including the owner are included in the 1994 amendment. When owner who is a gratuitous passenger is included, it is implied that the legislative intention was to provide compensation to ‘any person’ who is injured irrespective of whether he is gratuitous or non gratuitous passenger, other wise it would have been provided in the Act itself.
The expression ‘any person’ was decided by the High Court of Rajastan in the case of Oriental Insurance Co. Ltd. v. Hulasi Devi (2003 (1) KLT (SN) 83 ). The Court held that any person other than the insurer and the insured is third party and the insurance policy covers liabilities for death or bodily injury to any person or damage to any property of third party caused by or arising out of the use of motor vehicle in public place. The expression ‘any person’ would include an occupant of the car/motor cycle who is gratuitously travelling in the car/motor cycle (vide Amrit Lal Sood v. Kaushalya Devi Thapar (1998 ACJ 531 SC) and the Insurance Company is held liable for death off pillion rider.
The term ‘Gratuitous Passenger’ was also considered in the case of Oriental Insurance Co. Ltd. v. Daniel ( 2000 (1) KLT 526). Court held that Gratuitous passenger travelling in a motor vehicle involved in the accident will be third party with in the meaning of policy of insurance covering third party risks and so the insurer is liable to indemnify the owner. In so far as gratuitous passengers are concerned there is no limitation in the policy as such. Hence, under the terms of the policy, the insurer is liable to satisfy the award passed in favour of the claimant. The Tariff Advisory Committee, a statutory body on 13-3-1978 issued instruction requiring the insurance companies to mandatorily incorporate a clause in the insurance contract reading “death of or bodily injury to any person including the occupants carried in the motor car provided that such occupants are not carried for hire or reward”. The above instructions were brought into force with effect from 25-3-1977. It has to be observed that the Tariff Advisory Committee had stated that “all existing policies should be deemed to incorporate this amendment automatically”. That means the instructions of the Committee would apply to all existing policies whether it may be an “act policy’ or a ‘comprehensive policy’.
Therefore, the Full Bench could have decided the present case purely on the basis of the 1994 amendment bearing in mind the ever increasing number of accidents and the death toll in our state as well as the beneficial legislation being the objective of Legislature in introducing such an amendment.
In result, the above judgment needs correction in the light of the mistaken facts and also on the basis of the dicta of the Supreme Court of India in the above referred cases along with the plight of poor litigants whose cases are decided by various tribunals by applying the said principle.
By Thamban Thomas, Advocate
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tIÊpIfn I£nIfmbn tImSXnbn hcp¶hÀ X§fpsS tIÊv FXncmbn hn[n¡s¸Spt¼mÄ hn[n\ymbw FgpXnb PUvPnamsc Ipdn¨v s]cpamäZqjyw Btcm]n¨v \S¯p¶ ]cky {]kvXmh\Ifqw NÀ¨Ifpw A\pNnXhpw A\mimkyhpamWv. CXv \oXn \ymb hyhØbpsS ASn¯d Xs¶ CÃmXm¡pw. PUvPnamsc]än am[ya hnNmcW \S¯p¶hÀ, PUvPnamÀ¡v asämcp s]mXp {]hÀ¯Is\tbm, Dt±ymKØs\tbmt]mse adp]Sn ]dbphm\pw, \ntj[nbv¡p hm\pw, {]Xntcm[n¡phm\pw AhImianÃm¯hcmW F¶Xv ad¡cpXv. ChÀs¡Xnsc Bsc¦nepw ]ckyambn D¶bn¡p¶ Btcm]W§Ä Xncp¯s¸SmsX P\a\Ên \ne\n¡pw. A]hmZ¯n\ncbmIp¶ hyàn F¡mehpw \oXn \ntj[n¡s¸«, GI]£obamb Btcm]W ¯n\p hnt[b\mb, tXtPmh[w sN¿s¸« hyànbmbn XpScpw. CXv kmam\y\oXnbpsS ewL\amWv. a\pjyXzclnXamWv.
tImSXnIfpsS am\yXbpw, A´Êpw \ne\nÀt¯Xv \½psS P\m[n]Xy¯nsâ \ne \nÂ]n\v A\nhmcyamWv. tImSXnIÄ¡v \ÂInbncn¡p¶ Hu¶yXzhpw, A[nImc§fpamWv sXäpIsf in£n¡phm³ Ahsc AÀlcm¡p¶Xv. P\{]Xn\n[nIÄ cq]w \ÂIp¶ \nba§sf hymJym\n¡p¶Xpw \S¸m¡p¶Xpw tImSXn aptJ\bmWv. kaql¯nsâ k´penXhpw \oXn]qÀÆhpamb hfÀ¨bpw \ne\n¸pw tImSXn hn[n\ymb§fneqsS kwc£n¡s¸Sp¶p. tImSXnIfpsS hnizk\obXbv¡p tIm«w X«nbm XIcp¶Xv hyhØm]nXamb PohnXNcybmbncn¡pw. C¡mcW¯memWv tImÀ«e£y\nba¯nepw, Iogvhg¡§fnepw PUvPnamcpsS s]cpamä§Ä ]ckyhnNmcW sN¿cpXv F¶v \nÀt±in¡p¶Xv.
ASp¯bnsS ]mÀesaâwKoIcn¨ tImÀ«e£y \nba t`ZKXnIfn kXymhØ tImÀ«e£y Ipä¯n\v \ymboIcWambn sImSp¯n«. F¶ncp¶mepw `cWcwK¯v `cWþ{]Xn]£§Ä X½n \S¯p¶ Btcm]W {]Xymtcm]W§Ä t]mse tImSXnbpsS Imcy¯n hnaÀi\§Ä Agn¨phnScpXv. `cWcwK¯v \S¡p¶ ]ckymt\zjW§Ä t]msebpÅ hyhØIÄ PUvPnamcpsS s]cpamäs¯ Ipdn¨v A\phZn¨n«nÃ. tImSXnIÄ¡p t\sc BÀ¡pw F´pw ]dbmw F¶ AhØ, C¶v Aev]w _m¡n \n¡p¶ \·bpsS Awi§Ä kaql¯n CÃmbva sN¿pw.
tImSXnIfpsS A´Êv \ne\nÀ¯p¶Xn tImSXnIÄ¡p Xs¶ Hcp henb ]¦v hlnbv¡m\pv. D¶X§fn Ccn¡p¶hÀ D¶Xambn Xs¶ s]cpamdWw. {]tXyI A{]Xnam[nXz sam¶pw Hcp PUvPn¡pw CÃ. AhÀ am\pjnIamb _elo\XIÄ¡v hnt[bcpamWv. tNmZyw sN¿m\mhm¯ A[nImc§Ä X§Ä¡psI¶ [mcWbn ]et¸mgpw NneÀ \S¯p¶ s]cpamä§Ä Nn´n¡p¶hsc \ncmis¸Sp¯nbn«pIv. PpUojy BIvSnhnk¯nsâ t]cn s]mXp XmÂ]cy lÀÖnIfnepw cmjv{Sob t{]cnXamb tIÊpIfnepw, \S¯nb A[nImc It¿ä§Ä hnaÀi\mßIamWv. ]mÀesaânsâbpw \nbak`bpsSbpw ]cam[nImcs¯ tNmZyw sN¿p¶ `cWLS\mhncp²amb tImSXn CSs]SepIÄ ]eXpw ASp¯bnsS DImbn. A¯cw D¯chpIsf taÂtImSXnbn tNmZyw sN¿p¶Xn\pw adnIS¡p¶Xn\v \nba\nÀ½mW§Ä sImIphcm\pw Ignbpw. Ipsdsbms¡ hn[n\ymb§Äs¡Xnsc \S¯p¶ NÀ¨IÄ hgnXncp¯s¸Sm\pw, F¶m PUvPnamÀs¡Xnsc \S¯p¶ hyàn]camb Btcm]W§Ä A`nejWobaà F¶p am{XaÃ, A]ISIchpamWv.
1988 ]mÀesaân\pÅ ]cam[nImchpw kwc£Whpw D]tbmKn¨v PUvPnamcpsS tkh\ thX\ hyhØIsf¡pdn¨pÅ \nba\nÀ½mW thfbn Hc`n`mjIs\¶ \nebn F\n¡v tImSXnbn DImbn«pÅ A\p`h§Ä hnebncp¯n, AhcpsS s]cpamä§sf \nb{´n¡phm³ \nba\nÀ½Ww sImIp hcWsa¶mhiys¸Sphm³ Ahkcw e`n¨p. A¶v tI{µ\nba a{´n Bbncp¶ {io. G.sI. sk³ Xsâ adp]Sn {]kwK¯n Fsâ hnaÀi\§tfmSv tbmPn¡p Ibpw, F¶m ]mÀesaân\v DÅ ]cnanXnIÄ hniZoIcn¡pIbpw, PUvPnamÀ Xs¶bmWv X§fpsS s]cpamä N«w Dണ്ടmt¡ണ്ടsX¶v \nÀt±in¡pIbpw sNbvXp.
C¶v PUvPnamcpsS s]cpamä§sf \nco£n¡phm\pw, AhÀs¡Xnsc \S]SnIÄ kzoIcn¡phm\pw Ct¸mÄ hyhØm]nXamb amÀ¤§Ä DIv. ]mÀesaânsâ Cw]o¨vsaâv aptഖ\bpÅ PUvPnamsc \o¡w sN¿epw, kp{]owtImSXnbpsS {]tXyI kanXnbpsS At\zjWhpw, in£m\S]SnIfpw Hcfhphsc CXn\v klmbIcamWv. F¶m NnÃptaSbnte¡p IsÃdnbp¶Xpw, taSbnencp¶v IÃv Fdnbp¶Xpw Cu _nw_s¯¡pdn¨pÅ k¦Â¸§Ä CÃmbva sN¿pw.
tImSXnIÄ `cWXe¯nse Ht«sd AgnaXnIÄ ]pd¯psImph¶n«pv. \nb{´WanÃm¯ A[nImc tI{µ§sf \nebv¡p\nÀ¯nbn«pIv. {Inan\epIfmb ]e P\{]Xn\n[nItfbpw PbneneS¨n«pIv. tImSXnIsf ]mÀizhXvIcn¡p¶Xv C¯cw BfpIÄ¡v hnlcn¡phm³ hoണ്ടpw Ahkcw \ÂIpw. `bs¸Sp¶ tImSXnbv¡v \oXn \nÀÆln¡m\mhnÃ. tImSXnIÄ¡v \nÀ`bambn \oXn \S¯m³ Ahkcw Dണ്ടmIWw.
PUvPnamÀ hn[n¡p¶hcmWv. AhÀ I£nIfpsS am²ya hnNmcWbneqsS hn[n¡s¸Sp¶Xv A]lmkyamWv. PUvPnamcpsS s]cpamä§fpw {]hÀ¯\§fpw s]mXpP\§Ä AhÀs¡Xnsc hn[nsbgpXphm³ CSbm¡cpXv. kpXmcyhpw, hnaÀi\clnXhpamb s]cpamäw PUvPnamÀ Dd¸phcp¯Ww. \nÀ`bambn \oXn \nÀhln¡m\pÅ kmlNcyamWv Dcn¯ncntbXv. GXp hn[n \ymb§sfbpw hnaÀin¡phm³ GhÀ¡pw AhImiapIv. F¶m PUvPnamcpsS s]cpamäs¯ hnNmcWbv¡v hnt[bam¡phm³ ]mSnÃ.