National Insurance Company vs Mahendra Kumar and Others

Goutam Bhaduri, J.—These are the insurer appeals. Both the appeals are being tried together as similar question of law arises for consideration and the injury was caused on the single accident wherein different claims were filed and the liability were fastened over the Insurance Company. The brief facts of the case are that on 13th February, 2006 the claimants Girvar Sahu and Bhoj Bai along with other persons boarded the offending vehicle TATA 207 bearing No. CG 04 J 2209. They were going to Ratanpur Mahamaya Temple from village Bhardakala. The said vehicle was being driven by Mahendra Kumar @ Rajju and the owner of the vehicle is Sunil Kumar Choubey. According to the claim petitions, at about 12.30 in the night when the vehicle reached near Gadariya canal, at the time, another Truck was coming from opposite side and in order to give him side, the driver of the offending vehicle, Mahendra Kumar, could not control the vehicle whereby by the vehicle over turned in the canal. Thereafter, the applicants were admitted to the Hospital.

It was the case of Girvar Sahu that he sustained injury on his right hand and shoulder, which was broken and also sustained severe injuries on his head. He was admitted to the Hospital from 26th February, 2006, 24th March, 2006 and after the treatment, he became permanently disable and which caused a loss of earning. It was stated that he was earning Rs. 90 per day and could not work for 7 to 8 months, apart from the medical expenses for a claim of Rs. 70,000 a total amount of Rs. 4,91,600 was claimed.

Likewise in case of Bhoj Bai, it was stated that by such accident her fingers were fractured and also shoulder was fractured. It was also stated that she also sustained injury on his head and in order to get her treated, she admitted to the Hospital from 15th February, 2006 to 21st February, 2006 at Rajnandgaon. Further, it was stated that for the medical expenses Rs. 50,000 was incurred. It was also stated by her that she was a labour and she used to earn Rs. 80 to 90 per day and because of injury, she could not work for 7 to 8 months and as such, an amount of Rs. 3,71,600 was claimed.

As against the claim made by Girvar Sahu, the learned Tribunal has raised a doubt about the disability in respect of the claimant as there was an interpolation in the disability certificate. Thereafter, assessed the income and had granted an amount of Rs. 25,400 while in respect of Bhoj Bai the award of Rs. 18,000 was granted.

Learned Counsel for the Insurance Company would submit that though the Tribunal while adjudicating the issue No. 3 has held in both the claim cases that there has been a breach of policy but has given a direction to recover the amount from the Insurance Company, which is wrong. He would further submit that if there was a breach of policy and that claimants were gratuitous passenger then in such event the Insurance Company was not liable to make good the amount, as no premium was paid for covering the risk of such passengers. He would further submit that in view of the fact that there is clear finding that there is a breach of policy, the liability cannot be fastened over the Insurance Company.

On the other hand, the learned Counsel for the claimants would support the award and submits that the Insurance Company was under obligation to make good the amount of compensation to the claimants. He would also submit that a cross-objection has been filed by the claimants for enhancement of the claim amount.

I have heard the learned Counsel appearing for the parties and perused the record.

Initially the point raised by the Insurance Company is dealt with. The insurance has examined one witness Kishan Lal Rajak (NA-1). He has stated that the offending vehicle was registered with the Engine and Chassis number and the policy was issued for it and the said vehicle was insured for a period of 12th July, 2005 to 11th July, 2006. The owner of the vehicle was Sunil Kumar Choubey. He has also stated that the said vehicle was not insured to carry the passengers and for passengers it was not insured. The insurance policy is proved as Ex. D-2. Examination of Ex. D-2 would reveal that the offending vehicle for which the insurance policy was issued was for the employees numbering into three. Now referring to the statement of the claimant Girvar Sahu, he has stated that on the date of incident he was traveling in such vehicle and were going to Mahamaya Temple, Ratanpur and there were 12 persons traveling in such vehicle and the Conductor and Hamal was also there.

Reading the statement of this applicant along with the evidence on behalf of the Insurance Company, it would be clear that these passengers were traveling as gratuitous passengers. Similarly, the statement of the claimant Bhoj Bai was also examined. She has stated that she was traveling in the vehicle and were going to Ratanpur.

Examining such statement with the insurance policy, this fact emerges out that on the date of incident, there has been a breach of policy with respect to the applicants namely Girvar and Bhoj Bai, as they are traveling as gratuitous passengers. Therefore, from the pleadings of claimants and statement of witness, it is clear that the claimants were traveling as gratuitous passengers in the vehicle. Therefore, the direction by the Tribunal that the amount of compensation should firstly to be paid by the Insurance Company which in turn be recoverable appears to be wrong.

In a result, both the appeals filed by the Insurance Company are allowed. The direction in the award wherein it has been stated that the amount firstly recovered from the Insurance Company by the claimants and in turn the Insurance Company may recover the same from the owner are set aside.

Now coming to the cross-objection filed by the claimant Girvar Sahu. The Tribunal has awarded Rs. 8,400 for loss. I have also gone through the statement of Girvar Sahu wherein he has stated that before the accident, he was working as labour and was earning Rs. 70 to 80 per day and after the accident, he could not work for 3 to 4 months. The disability as stated by the applicant was of 30% and with respect to that the loss of earning as he himself has stated that he could not work for 3 to 4 months, therefore, considering the statement of this applicant, I am of the opinion that the finding arrived at by the Tribunal with respect to loss of income found to be correct.

Similarly, in respect of the applicant Bhoj Bai, she has also stated that she was working as labour and used to earn Rs. 60 per day. The learned Tribunal has granted an amount of Rs. 13,000. If the statement of Bhoj Bai is seen, she has stated that after the incident she could not work for one year. Therefore, the loss of income assessed of Rs. 13,000 coupled with the evidence that in the village, the labour do not get work every day, the amount of Rs. 13,000 appears to be just and proper along with the other expenses, which has been granted.

In view of this, considering the entire pleading and the evidence, I am of the opinion that there is no force in the cross-objections. Accordingly, the same is dismissed.

As a result, appeal filed by the Insurance Company is allowed and the cross-objections of the claimants are dismissed. No order as to cost.