AI Structured Summary
Not yet generated for this judgment
Judgment
D.V. Shylendra Kumar
This appeal u/s 173(1) of the Motor Vehicles Act, 1988, (for short ''the Act'') is by the claimants in MVC No. 32/2007 on the file of the Court of the Fast Track-III, Gulbarga complaining that not only the quantum of compensation quantified in their favour by the Tribunal due to the death of their father in accident involving a Tempo Trax Jeep bearing Reg. No. KA-39-M-267, which was dashed against by another light vehicle bearing Reg. No. KA-39-M-330 on the 12th September 2005 near Harkud Cross at Mudabi village of Basavakalyan Taluk, resulting in the death of the claimants'' father 11 days after the incident and while undergoing treatment at hospital, is inadequate, but also the Tribunal has committed an error in exonerating the Insurance Company from joint liability to make good this amount. The Tribunal has quantified the compensation to which the claimants-four major sons of the deceased are entitled to in a compensation of Rs. 2,64,000/- towards loss of dependency, added a sum of Rs. 5,000/- towards funeral expenses and medical expenses and another Rs. 5,000/-towards loss of love and affection and the total amount to be Rs. 2,74,000/- with interest at 6% per annum from the date of petition till realisation etc.
It is questioning the inadequacy as also not making the Insurance Company liable to make good this amount, the present appeal by the claimants.
Appeal had been admitted for examination. Respondents 1 and 2-the driver and owner of the vehicle respectively though served, have remained unrepresented and the third respondent-Insurance Company is represented by Mr. S.S. Aspalli, Learned Counsel.
Appearing on behalf of the appellants, submission of Smt. Shivaleela S.S., Learned Counsel is that the Tribunal committed an error in not making the Insurance Company also liable for making good the compensation amount; that the Insurance Company had admittedly, issued a policy covering risk of the owner of the vehicle and covering the period during which the accident occurred i.e., policy was valid from 31.08.2005 up to mid night of 30.08.2006 and the accident having taken place on 12.09.2005, the policy was very much in currency and also that the Insurance Company having collected additional premium of Rs. 100/- over and above the basic third party premium of Rs. 700/-, they cannot now seek to get out of the liability for compensating or reimbursing the owner of the vehicle.
In support of this submission, Learned Counsel for the appellants has placed reliance on the judgment of the Supreme Court in the case of United India Insurance Co. Ltd. v. K.M. Poonam & Ors.'' reported in 2011 (3) AIR Kar R 449. Particular attention is drawn to paragraphs 20, 21, and 22 of this Judgment to submit that the Supreme Court had occasion to examine the occasion of the present nature and had opined that NOC policy is issued for the purpose of Section 149 and under chapter XI of the Motor Vehicles Act, 1988 it was inevitable for the Insurance Company to make good its liability at least up to the number of passengers that the vehicle was permitted to carry and therefore submits that if the seating capacity of the vehicle is 8+1, the claim could not have been resisted by the Insurance Company.
It is submitted that the compensation quantified under head loss of love and affection is on the lower side as all claimants were sons and the death of their father has resulted in a like situation to all of them.
It is also submitted that the deceased had been hospitalised for a period of 11 days before his death and though considerable expenditure had been incurred during hospitalisation, the Tribunal has committed an error in restricting compensation to a sum of Rs. 5,000/-only.
On the other hand, Sri. S.S. Aspalli, Learned Counsel for the third respondent-Insurance Company submits that the deceased was a passenger who boarded the vehicle in between Kalkeri and Mudabi and its the admitted case of the claimants that even as per the evidence placed before the Tribunal that the deceased had boarded the vehicle as a fare paying passenger and the vehicle was not permitted to carry passengers for hire or reward and it is one of the condition of the policy itself that vehicle cannot be used for hire or reward in which event the insurer will not be liable under the policy to cover the risk of the insured against any claims.
A perusal of the policy does indicate that using the vehicle for carrying passengers for hire or reward is one of the exceptions enumerated in the policy when the insurer can avoid the liability under the policy. In fact, a condition of this nature is also statutorily permitted in terms of the provisions of Section 149 (2) (a) (i) (a) of the Act, reading as under:
149(2)(a)(i)(a):- for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or
In addition, it is submitted that the judgment of the Supreme Court is not applicable to the present case, as the situation which was being examined in K.M. Poonam''s case (Supra) was, as to whether Insurance Company which has issued a policy covering the risk of the owner in respect of a stipulated number of passengers and having collected premium from the insured, can avoid its liability totally, if more than the permitted number of passengers were carried in the vehicle which is involved in accident and there are multiple claims much more than the number of passengers for whom the owner had paid premium.
It is pointed out that the Supreme Court in such situation held that the Insurance Company cannot avoid its liability up to the number of passengers for whom premium has been collected and nothing more.
In the present situation on a perusal of the policy, it is found that whereas no premium had been collected by the company or paid by the owner for covering the risk of any of the inmates of the vehicle. On the other hand, a sum of Rs. 100/- as pointed out by the Learned Counsel for the appellants is explained to be a premium collected to cover the risk of the owner if he himself happens to the driver i.e., personal to the owner being the driver and in the alternative a sum of Rs. 25/- is collected is in respect of an employee who is travelling in the vehicle and not a person like the deceased.
Insofar as the quantum is concerned, Learned Counsel submits that he has nothing to submit, as the Insurance Company is not liable to pay any amount under the policy.
While the submission of Sri. Aspalli, Learned Counsel merits acceptance, as exclusion of the liability of the Insurance Company in a situation of the present nature-is specifically enabled u/s 149(2)(a)(i)(a) of the Act. it is further compounded by the breach of using a private vehicle as a fare paying passenger vehicle. Therefore, there is no possibility of the appeal being allowed for roping in the Insurance Company also and to make them jointly liable for satisfying the award passed by the Tribunal.
Insofar as the quantification of compensation is concerned, the amount towards loss of love and affection should be corresponding to each of the claimants and therefore it is enhanced to Rs. 20,000/- as against Rs. 5,000/-awarded by the Tribunal.
Insofar as the enhancement towards medical expenses etc. is concerned, as the appellants have not placed any supporting material before the Tribunal, there is no way of modifying or interfering with the quantification of the Tribunal in this appeal.
In the result, the appellants have mixed fortunes in that while judgment and award of the Tribunal insofar as liability is maintained as it is, but insofar as the quantification is concerned, it is modified to the extent of enhancing the amount under the head loss of love and affection which is raised from Rs. 5,000/- as awarded by the Tribunal to Rs. 20,000/-. Except to this extent, in all other aspects, the appeal fails.
Appeal disposed of accordingly. Registry to draw award in terms of the above judgment.