Ganga Ram Patel vs Mohammad Zaheed Khan and Another

Arun Mishra, J.—These appeals have been preferred as against awards passed by Claims Tribunal in Claim Case Nos. 81, 71, 6 and 23 of

1999 by First Additional Motor Accidents Claims Tribunal, Mandla on 21.12.2001.

The facts in short are that on 9.4.1998 claimant Ganga Ram was travelling in a jeep (No. MP 09-S 1772) from Mandla to Narainganj, near

Sahjani. Ram Kumar Gupta, the driver, drove the jeep rashly and negligently, due to that jeep fell into a ditch. Claimant Ganga Ram sustained

injuries. Fracture of skull, fracture of fourth and fifth ribs was found, it was claimed that his hearing capacity was affected to the extent of 70 per

cent, driver died in the accident, vehicle was owned by Mohd. Jaheed, insured with National Insurance Co. Ltd. Ganga Ram claimed

compensation of Rs. 10,48,400 along with interest.

The owner of the jeep was proceeded ex parte. The insurer National Insurance Co. Ltd. in its written statement, inter alia, contended that

passengers were carried in the vehicle whereas vehicle was insured and registered for the purpose of private use. Passengers were carried for hire

or reward, thus, there was violation of terms and conditions of policy. Apart from that the vehicle was insured w.e.f. 18.9.1997 till 17.9.1998 by

Oriental Insurance Co. Ltd., Indore Branch, yet another insurance was obtained by the owner from the insurer National Insurance Co. Ltd.

Accident took place on 9.4.1998 as such the subsequent insurance was illegal and void, thus, there was violation of terms and conditions of policy,

hence, insurer was not liable to make payment of compensation.

Claims Tribunal has found that driver of the jeep drove it rashly and negligently, owing to that claimant Ganga Ram sustained injuries,

compensation of Rs. 88,400 has been awarded, out of that a sum of Rs. 62,400 has been awarded on account of 20 per cent permanent disability

due to head injury, age of the claimant was 46 years, multiplier of 13 has been applied, apart from that a sum of Rs. 10,000 has been awarded for

physical pain and mental suffering, Rs. 10,000 for medical expenditure, Rs. 6,000 for loss of earning for a period of 3 months at the rate of Rs.

2,000 per month. Dissatisfied with the quantum of compensation, appeal has been preferred by Ganga Ram for enhancement. The liability has

been fastened on insurer National Insurance Co. Ltd., violation of policy has not been found, consequently, insurer has also come up in appeals.

We have heard the learned Counsel for parties at length and gone through the evidence on record.

It is apparent that the claimant Ganga Ram had sustained fracture of skull and fourth and fifth rib of left side. Certificate, Exh. P3, indicates that

20 per cent permanent disability was assessed on the basis of impaired hearing and fracture of skull and ribs, however, yet another doctor, Dr.

P.C. Masuraha, CW 3, has been examined, he has issued a disability certificate of hearing impairment to the extent of 70 per cent, considering the

contradictory certificates and also the fact that medical certificate of disability board has not been produced, we assess the total disability for

balancing the extent of disability at 25 per cent in view of the conflicting evidence on record. The earning has been assessed on lower side by the

Tribunal, it has to be taken at Rs. 100 per day as the claimant Ganga Ram was a tailor, thus considering the disability to the extent of 25 per cent,

monthly loss of earnings comes to Rs. 750, annual Rs. 9,000, multiplier of 13 is applicable and same is applied, thus on account of permanent

disability compensation comes to Rs. 9,000 x 13 = Rs. 1,17,000. The award of Claims Tribunal of Rs. 26,000 under the remaining heads is

confirmed. Thus, total compensation comes to Rs. 1,17,000 + Rs. 10,000 + Rs. 10,000 + Rs. 6,000 = Rs. 1,43,000 (rupees one lakh forty-three

thousand). The enhanced compensation to carry the interest at the rate of 7 per cent per annum from the date of filing of claim petition till its

realisation.

Coming to appeals filed by insurer, National Insurance Co. Ltd., Mrs. Amrit Ruprah was unable to point out, on specific query being made, that

there was any evidence on record to indicate that jeep was plied for hire or reward at the time of accident, thus, we hold that violation of policy on

this ground has not been established.

Coming to second submission raised by Mrs. A. Ruprah that about 15 persons were carried at the time of accident in the vehicle which were

more than the capacity, however, there is no evidence on record that number of passengers in fact had contributed to the accident in question, it

was a case of sheer negligence of driver because due to that the vehicle fell into a ditch. In absence of any evidence to suggest that number of

passengers had contributed the accident, we are unable to accept the sub-mission.

Apart from that insurer cannot be permitted to pick and choose the persons for the payment of compensation and only four claim petitions have

been preferred as stated by Mrs. A. Ruprah and the jeep was insured for carrying at least six persons as stated by the counsel. Even if number of

persons are more it cannot be said to be substantial breach of the policy as held by the Supreme Court in B.V. Nagaraju Vs. M/s. Oriental

Insurance Co. Ltd., Divisional Officer, Hassan, , in which the Supreme Court has followed the decision in Skandia Insurance Co. Ltd. v.

Kokilaben Chandravadan 1987 ACJ 411 , in view of the fact that there was ""breach of carrying humans in a goods vehicle more than the number

permitted in terms of the insurance policy, it was laid down that the same cannot be said to be such fundamental breach so as to afford ground to

the insurer to deny indemnification"" unless there were some factors which contributed to the causing of the accident.

The Apex Court has laid down in B.V. Nagaraju Vs. M/s. Oriental Insurance Co. Ltd., Divisional Officer, Hassan, , that exclusion term of the

insurance policy must be read down to serve the main purpose of it to indemnify the insured. Our conclusion is fortified by the above decision of

the Supreme Court in case of B.V. Nagaraju (supra) and Skandia Insurance Co. Ltd. (supra). The Apex Court in B. V. Nagaraju (supra) has laid

down thus:

(7) It is plain from the terms of the insurance policy that the insured vehicle was entitled to carry 6 workmen, excluding the driver. If those 6

workmen when travelling in the vehicle are assumed not to have increased any risk from the point of view of the insurance company on occurring

of accident, how could those added persons be said to have contributed to the causing of it is the poser, keeping apart the load it was carrying.

Here, it is nobody''s case that the driver of the insured vehicle was responsible for the accident. In fact, it has not been disputed that the oncoming

vehicle had collided head-on against the insured vehicle, which resulted in the damage. Merely by lifting a person or two, or even three, by the

driver or the cleaner of the vehicle, without the knowledge of owner, cannot be said to be, such a fundamental breach that the owner should, in all

events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to

the contract, unless some factors existed which, by themselves, had gone to contribute to the causing of the accident. In the instant case, however,

we find no such contributory factor... .

Coming to the submission that the liability of subsequent insurer has to be proportionate as there was yet another policy issued by Oriental

Insurance Co. Ltd. Condition No. 5 of insurance policy reads thus:

If at any time any claim arises under this policy, there is any other existing insurance covering the same liability, company shall not be liable to pay

more than its rateable proportion of any compensation cost or expenses.

As per condition No. 5 of insurance policy, if there is any other existing insurance covering the same liability, company shall not be liable to pay

more than its rateable proportionate of any compensation cost or expenses. Thus, the counsel for insurer has submitted that liability should have

been proportioned between two insurers, Oriental Insurance Co. Ltd. and National Insurance Co. Ltd. In our opinion, since admittedly the vehicle

was insured with National Insurance Co. Ltd., it is open to the third party to realise the entire amount from any of the insurer, and in case there was

any other existing valid policy, it is open to National Insurance Co. Ltd. to settle its score with Oriental Insurance Co. Ltd. and to enforce it against

the owner or the other insurer in appropriate proceedings.

Consequently, we allow the appeal filed by the claimant in part and dismiss the appeals of insurer with the aforesaid observation. However, we

leave the parties to bear their own costs.