Bajaj Allianz General Insurance Company Limited vs Naresho

K. Kannan, J.—All these appeals are connected and they relate to the same accident where 4 persons died when they were travelling in a motorcycle. Amongst the deceased, the rider of the motorcycle was the son of the owner and no appeal has been filed against the award already secured by the claimants. The subject matter of appeals among claimants are in respect of claims made on behalf of representatives of three pillion riders who were the sons and daughter of the owner of the vehicle. The rider of the motorcycle was yet another son of the owner. They were seen lying on road with profuse injuries beside the motorcycle and the vehicle which had hit them and caused instantaneous death was itself not traced. The claim was therefore made by the representatives of the deceased against the father, being the owner of the motorcycle by treating the death as resultant to the use of a motorcycle and hence, they were competent to pursue the claim u/s 163-A of the Motor Vehicles Act. The claimants would place reliance on the policy cover which was issued comprehensively to cover risk of passengers in the insured vehicle. I have seen the copy of the policy issued which bears the sitting capacity of the vehicle as ''2'' and includes the liability incurred for the use of the vehicle for death or injury to the passengers in the vehicle. The word "passenger" in this context must be seen as persons travelling in a motorcycle.

The Insurance Company is in appeal in FAO Nos. 1757 to 1760 of 2009 to contend that no cause of action arises for a claim against the insurer, for, it was a case of the use of a vehicle by a borrower of the vehicle and there is no policy to cover the risk. The vehicle admittedly was driven by a person whose competency itself was not denied. The borrower that drives the vehicle subjects himself to the same risk and liability as the owner would do. If a passenger, as in this case a pillion rider, would come by any harm, the owner would become liable and in the same way, the borrower would subject himself to such liability. If there was a policy cover for the risk for death or injury to a passenger, then the insurer will become liable by the user of the motor vehicle in terms of the policy. Consequently, the complete denial of liability by the Insurance Company cannot be accepted.

The point that would require to be seen is the extent of entitlement that could arise in such a situation where 4 persons were travelling in the vehicle when the sitting capacity of a motorcycle is only 2. The liability to a passenger must be seen therefore as the liability to a rider and a pillion rider. If there were more passengers that what could have travelled in the vehicle and the liability was restricted to two passengers, it should mean the entitlement for the rider and the entitlement for the representatives of one of the pillion riders should alone be considered. Of the persons who died, Naresh Kumar was said to be earning Rs. 3,300/- as Submersible Tubewell Installer and by applying the scales provided in Schedule-II as regards 1/3rd deduction to be made and the use of multiplier of 17, the loss of dependence will be Rs. 4,48,800/-. The loss of consortium, loss of love and affection, funeral expenses and loss to estate would count for another Rs. 9,500/-. The total amount will be Rs. 4,58,300/-. The similar claim would be available for the death of Rajesh Kumar at the instance of the representatives and the amount payable to them shall also be Rs. 4,58,300/-. For death of Nainsi, who was 2 1/2 years old, the notional income must be taken as Rs. 15,000/- and the amount of compensation payable would be Rs. 1,54,500/-. For the rider of the motorcycle, for his fault or for the fault of driver of untraced vehicle, no compensation beyond liability on no fault basis is possible, in the absence of the owner and insurer of the other untraced vehicle. Since the claim is possible only at the instance of the representatives of one pillion rider and the rider on no fault basis, the amount shall be distributed in the proportion to which each one of them was entitled as regards the whole money. Consequently, the entitlement shall be split amongst the representatives of Naresh Kumar, Nainsi, Rajesh Kumar and Jai Bhagwan in the following fashion:

I have already determined the amount payable to the representatives of Naresh Kumar at Rs. 4,58,300/-, Nainsi at Rs. 1,54,500/- and Rajesh Kumar at Rs. 4,58,300/-. There has been already an award of Rs. 4,36,167/- for the death of Jai Bhagwan and that has been challenged in FAO No. 1760 of 2009. The rider of motorcycle cannot have any claim for compensation u/s 163-A of the Motor Vehicles Act without proving the involvement of any other vehicle against which there was no need to prove negligence u/s 163-A. If the owner of the other vehicle which had caused death was not made a party, then the only entitlement that the representatives of the deceased who was driving the motorcycle would be the statutory minimum prescribed u/s 140 in terms of the law laid down by the Supreme Court in Eshwarappa @ Maheshwarappa and Another Vs. C.S. Gurushanthappa and Another, . The entire compensation awarded against the Insurance Company for the death of Jai Bhagwan is not valid. I have also observed above that the liability under the policy was only for two persons, if the claims were to be made against the insurer of the vehicle which was driven by the deceased.

The manner of how the calculation has to be worked out where the liability of the insurer is restricted to a certain number of persons but the claims emanate from larger number of persons than admissible, in the decision in United India Insurance Co. Ltd. Vs. K.M. Poonam and Others, The Supreme Court was considering a case of a jeep insured to carry 6 passengers and the jeep had met with an accident carrying 15 persons, the highest compensation for 6 persons was taken and distributed amongst all the 15 persons proportionately. The same formula has adopted below again.

Providing for Rs. 50,000/- being the statutory minimum for the rider (driver) and the highest amount that is payable for yet another passenger, the total amount of liability for the Insurance Company could have been only Rs. 5,08,300/- ( Rs. 4,58,300 + Rs. 50,000). This amount must be distributed amongst the claimants in the various cases proportionately to the total amount payable. This will be for Naresho which is the subject matter of appeal in FAO No. 2836 of 2009 Rs. 4,58,300 � Rs. 11,21,100 x Rs. 5,08,300 = Rs. 2,07,790.46. The amount of compensation assessed for the death of Naresh Kumar will stand reduced to this extent. Consequently, the appeal in FAO No. 1757 of 2009 is partly allowed. FAO No. 2837 of 2009 seeking for enhancement is dismissed. In respect of claim for death of Nainsi, the amount payable is Rs. 1,54,500 � Rs. 11,21,100 x Rs. 5,08,300 = Rs. 70,049.371. Consequently, the amount of Rs. 1,50,000/- awarded for the death of Nainsi stands reduced and FAO No. 1758 of 2009 is allowed to the above extent. The amount claimed for enhancement in FAO No. 2862 of 2009 by the mother is dismissed. The appeal in FAO No. 2836 of 2009 seeking for enhancement of compensation is dismissed. As regards the claim for death of Rajesh Kumar, the amount payable is the same as the amount determined for the death of Naresh Kumar i.e. Rs. 2,07,790.46. Consequently, the appeal by the Insurance Company in FAO No. 1759 of 2009 is allowed reducing the compensation already determined at Rs. 3,93,500/-. As regards the claim for death of Jai Bhagwan, who was the driver of the motorcycle, the amount of compensation determined at Rs. 4,36,167/- is reduced as Rs. 50,000 � Rs. 11,21,100/- x Rs. 5,08,300/- = 22,669.699. Consequently, the award already passed in favour of the representatives of Jai Bhagwan stands reduced and FAO No. 1760 of 2009 is allowed to the above extent.