Bajaj Allianz General Insurance Company Ltd. vs Anil Kumar

Vijender Singh Malik, J.—The aforesaid two appeals, one bearing FAO No. 4068 of 2010 by Bajaj Allianz General Insurance Company

Ltd., the insurer and the other bearing FAO No. 4512 of 2010 by Anil Kumar and another, the claimants are directed against the award dated

03.04.2010. Anil Kumar and Smt. Bimla Devi, the claimants had brought a claim petition u/s 163-A of the Motor Vehicles Act, 1988 (for short

''the Act�) seeking compensation in a sum of Rs. 7,00,000/- on the death of Naveen Kumar in a road side accident that took place on

01.08.2006. Learned Motor Accidents Claims Tribunal, Jind (for short the Tribunal) allowed the claim petition vide the impugned award and

awarded a sum of Rs. 2,62,000/- as compensation.

The challenge to the award from the side of the insurer is that it was not liable to satisfy the award because Naveen Kumar, the deceased had

borrowed the motorcycle from Sunil Kumar, the owner and himself was driving the motorcycle when the accident took place. According to him, in

such situation, the deceased himself being the person at fault, the insurance company is not liable to satisfy the award.

On the other hand, the claimants have the case that instead of 1/3rd, deduction has been made by learned Tribunal at the rate of 1/2 which was

against the spirit of second schedule appended to the Act.

Learned counsel for the appellant has contended that Parman Preet Singh appeared as RW-1. According to him, said Parman Preet Singh has

made a statement that the policy is a comprehensive policy where additional premium has been paid for owner-driver of the vehicle. According to

him, Naveen Kumar, the deceased being borrower of the motorcycle from the owner would step into the shoes of the owner and he cannot be

termed as 3rd party to claim compensation u/s 163-A of the Act.

It is true that Naveen Kumar, who was driving the motorcycle had borrowed the same from its owner and, therefore, stepped into the shoes of

the owner. However, the case here is not as to whether the deceased had been a 3rd party or not. The case here is that the policy issued for the

motorcycle had been comprehensive policy where additional premium had been paid for covering owner and driver. A Coordinate Bench of this

Court in New India Assurance Co. Ltd. Vs. Umesh Kumari and Others, had dealt with the same facts and has held that the deceased being

borrower of the vehicle from the owner has to be termed as the owner itself and, there being comprehensive policy where additional premium had

been paid to cover the owner and driver, the said policy would cover the claim of the claimants in that situation and the insurance company was

held liable to pay compensation. I have no reason to take a different view in the matter. Hence, the insurance company cannot escape its liability to

satisfy the award.

Coming to the other appeal, learned counsel for the appellant has submitted that there is no provision in the second schedule of deduction above

1/3rd. According to him, when the case was u/s 163-A of the Act, under which compensation has to be assessed as per the structured formula

and the second schedule does not admit of any deduction above 1/3rd, the Tribunal was wrong in adopting deduction of 1/2 to assess the

dependency of the claimants.

Under the second schedule after assessing compensation without applying the deduction it is laid down by way of a note that 1/3rd has to be

deducted from the total compensation in consideration of the expenses of the deceased on himself. The Tribunal in this case has taken the income

of the deceased at Rs. 3000/- per month and deducted half thereof towards his personal expenses. The deduction should have been 1/3rd instead

of 1/2 and, therefore, the monthly dependency of the claimants comes to Rs. 2000/- , which on multiplication with 12, comes to Rs. 24,000/- per

annum. The multiplier in this case has been taken to be of 14. As per the second schedule, the multiplier of 15 is suitable in case the age of the

victim has been above 40 years but not exceeding 45 years. The case before me is one where the deceased is unmarried. The claimants are of the

age of 42 and 43 years and, therefore, the multiplier of 15 would be available in this case. Multiplying the annual dependency of Rs. 24,000/- with

15, I find a sum of Rs. 3,60,000/- as the amount lost by the claimants in the death of Naveen Kumar. Adding to it, a sum of Rs. 5000/- in the

name of loss of estate and loss of funeral expenses, I assess a sum of Rs. 3,65,000/- as compensation in favour of the claimants. In the result,

appeal bearing FAO No. 4068 of 2010 brought by the insurer is found to have no merit and is dismissed. The appeal bearing FAO No. 4512 of

2010 brought by the claimants is allowed enhancing the compensation from Rs. 2,62,000/- to Rs. 3,65,000/-, which shall be payable to the

claimants with interest @ 7.5% per annum from the date of filing of the petition till the date of realization thereof and as per other terms of the

award. The amount shall be shared by the two claimants in equal share.