National Insurance Company Limited vs Mohammad Akbar Magray

Impugned in this Appeal is the Award dated 11th September 2018, passed by Motor Accident Claims Tribunal, Srinagar (for short “Tribunalâ€)

on a claim petition, bearing File no.24 of 2017, titled as Mohammad Akbar Magray v. National Insurance Company Limited, on the grounds mentioned

therein.

Heard and considered.

Perusal of record on the file reveals that respondent/claimant is an Advocate by profession. He suffered injury while he was driving his Maruti Car

bearing Registration no.JK04A-4877 on Bagh-e-Mehtab, Channapora, Road, when a mob appeared on the spot, which was intercepted by security

forces, which resulted in clashes between protesters and security forces. The protesters started pelting stones upon security forces; due to which

claimant’s vehicle came under heavy stone pelting and one of the stone hit his face. His Mandible Jaw bones are stated to have broken into

pieces. He was immediately shifted to hospital, where he underwent multiple surgeries. It is further pleaded that the accident has taken place out of

use of offending vehicle and in this regard, it is averred in the claim petition that claimant/respondent is of the age of 54 years. Claimant/Respondent,

sought compensation to the tune of Rs. 15.00 lac.

Appellant Insurance Company resisted the claim before the Tribunal on the ground that alleged offending vehicle in question (Maruti Alto), bearing

registration no. JK04A-4877 stands insured in the name of Mohammad Akbar Magray S/o Haji Abdul Rehman Magray R/o Alamdar Colony Gulshan

Abad Budgam under policy No. 42100/31/ 16/6700000431 w.e.f. 07.06.2016 to midnight of 06.06.2017. However, it is submitted that mere admission

to the extent of insurance does not entitle claimant/respondent to any compensation from appellant Insurance Company, unless and until it is proved

and established that respondent/owner of offending vehicle had strictly followed terms and conditions of insurance policy. Respondent/owner is also

supposed to prove all vehicular documents are valid on the relevant date of occurrence / accident.

The Tribunal, in view of pleadings of parties, framed following issues for determination, which are:

Whether on 05.09.2016, the petitioner was driving is vehicle (Maruti Car Alto) bearing registration No. JK04A-4877 on Bagh-e-Mehtab, Chanapora

road and suddenly a mob appeared on spot which was proceeding towards Bye Pass which was intercepted by the forces, resulting in clashes

between the protesters and the security forces and his vehicle also came under heavy stone pelting and one of the stone hit the petitioner’s face,

as a consequences of which the Mandible Jaw bone of the petitioner broke into pieces and he was immediately shifted to hospital where the petitioner

underwent surgeries, resulting in permanent disability? OPP

Whether the petitioner driver of the vehicle (Maruti Car Alto) was not holding a valid and effective D/L at the time of accident and other vehicular

documents, as such, has committed breach of policy stipulations, absolve the company form its liability? OPR

Whether, in case the issue nos. 1 & 2 are decided in affirmative, to what amount of compensation the petitioner is entitled to and from whom? OPP

Relief?

Claimant in support of his claim petition examined three witnesses before the Tribunal; besides himself. Appellant Insurance Company examined

two witnesses, namely, Kumail Murtaza, Administrative Officer and Mahfooz Ahmad, Licensing Clerk, ARTO Poonch, in support of its contentions.

By impugned Award, the Tribunal found claimant/respondent entitled to receive compensation of Rs. 1,60,200/- along with 6.5% interest per annum

from the date of institution of claim till realization

Learned senior counsel for appellant Insurance Company has stated that the Tribunal erred in passing impugned Award. It is contended that vehicle

of the respondent was insured under policy no.421000/31/16/ 6700000431; in terms whereof, personal accident cover for owner/driver is for Rs.2.00

lacs. The claimant has himself claimed compensation in terms of the said policy. It is submitted that in terms of the policy, appellant Insurance

Company is liable to pay compensation for bodily injury / death sustained by owner-driver of vehicle and the scale of compensation is 100% for death

and loss of two limbs or sight of two eyes or one limb and sight of one eye and 50% for loss of one limb or sight of one eye. According to learned

senior counsel, respondent has not suffered any such disability including permanent total disablement, which would entitle him to seek compensation.

The doctor in the statement has stated that the fractured bone was stabilized with titanium coated bone plates. The claimant has neither suffered any

loss of limbs or eyes or permanent total disablement, as such, he is not entitled to any compensation under the terms and conditions of insurance

policy. i.e., Personal Accident Cover. It is further contended that at the time of accident, driver-owner of vehicle in question was not 3rd Party. The

Company is liable to pay compensation under Personal Accident Cover of the owner-driver, if he has suffered death or disablement as laid down in

GR 36 or under the terms and conditions of the policy. The Tribunal is said to have held respondent can lay his claim for compensation for personal

cover as owner-cum-driver with maximum limit of Rs.2.00 lacs against received payment of Rs.100/- by appellant Insurance Company, but

simultaneously, the Tribunal has not considered that owner-cum-driver is entitled to receive compensation under personal cover only if he has suffered

death or permanent total disablement, which respondent has not suffered. It is also exhorted that claimant has submitted medical bills amounting to

Rs.6,181/- to appellant Insurance Company, which he was found not entitled to as he has not suffered any such disablement as described in personal

cover under the terms and conditions of the policy. The Tribunal is stated to have not appreciated the statement of the officer of the company in its

right perspective.

Taking into consideration submissions made by learned senior counsel for appellant Insurance Company that revolve around grant of compensation

by the Tribunal. Issue no.3, qua amount of compensation to which petitioner was to be seen entitled to, was framed by the Tribunal. While deliberating

and adjudicating upon Issue no.3, counsel appearing for Insurance Company before the Tribunal had contended that claimant was not entitled to

compensation as he was himself a tort-feasor and that Insurance Company was liable to indemnify owner vis-Ã -vis third-party insurance claims and

proper forum for seeking compensation was not the Tribunal. To this assertion, contention of counsel for claimant before the Tribunal was that

Tribunal was fully vested with jurisdiction to grant compensation by invoking jurisdiction under Section 165 of Motor Vehicle Act and in this regard

had also cited a judgement reported as AIR 2007 MP 83; relevant portion thereof the Tribunal extracted in impugned Award. The Tribunal also relied

upon the judgement passed in Dhanraj v. New India Assurance Co. Ltd and another AIR 2004 SC 4767. The Supreme Court held that owner can put

forth a claim for his bodily injuries before Motor Accident Claims Tribunal. Thereafter, the Tribunal relied upon Bajaj Allianz General Insurance

Company Limited v. C. Ramesh, 2014 ACJ, in which it was held that when personal accident policy is taken to cover risk of personal injury or death

of insured in accident, caused due to use of vehicle in public place, there was absolutely no need for injured/ legal representatives to approach

Consumer Forum to claim compensation and like any other claim arising out of motor policies under Motor Vehicles Act, 1988, a claim under personal

accident cover would also lie before Motor Accident Claims Tribunal and injured/ legal representatives of deceased need not be driven to Consumer

Forum. In National Insurance Company Limited v. Ashalata Bhowmik and others, (2018) 9 SCC 801, the Supreme Court held that Insurance

Company is liable to indemnify legal representatives of deceased â€" owner / insured to the extent of his personal accident cover contained in the

terms and conditions of insurance policy even if it was found that accident had occurred due to rash and negligent driving of vehicle by owner / driver

of vehicle and he was himself responsible for the accident. When the case in hand is compared with and looked into on the benchmark of law laid

down in abovementioned judgements, the Tribunal has rightly and correctly granted and given compensation in the amount of Rs.1,60,200/- along with

interest @ 6.5% per annum. Impugned Award is lucid, luculent and comprehensive, touching and discussing all facets of the matter that were required

to be discoursed by the Tribunal. Hence, impugned Award need not be interfered with and as a corollary thereof, instant Appeal is liable to be

dismissed.

For the foregoing reasons, appeal on hand is dismissed with connected CM(s). Interim direction, if any, shall stand vacated.

In this appeal, claimant-appellant seeks setting aside of the Award dated 11th September 2018 and enhancement of compensation as according to

him the Tribunal without considering material on record and evidence adduced, passed impugned Award for a meager amount of only Rs.1.60 Lacs,

which is totally unacceptable to him being grossly violative of law. It is contended that Insurance Company has admitted that offending vehicle was

insured under the policy no.421000/31/16/6700000431 and in terms thereof Insurance Company is liable to pay compensation for injury sustained by

the appellant owner who was driving the insured vehicle and thus, was entitled to the compensation as per the injury suffered by him, resulting total

breakage of mandibles jaws. As per the statement of the doctors placed on record claimant was stabilized and titanium coated bone plates were fixed

in his upper and lower jaws. He despite that has not been paid compensation as per the injury suffered. It is further pleaded that compensation given in

terms of impugned award is inadequate and insufficient, given degree of injury suffered by claimant during the accident. The Tribunal is stated to have

not appropriately appreciated pleadings as well as evidence available on record and evidential statements given by the witness before the learned

Tribunal. The appellant had conclusively proved by cogent evidence that the injury suffered by him was of grave nature and thus the actual costs

incurred were to be paid by insurance company. The appellant as per the said insurance policy fulfilled all the requisite conditions that were settled

down and there was nothing wrong on the part of the appellant/claimant and, thus, it was upon the respondents to adhere to the policy and make

payment as things were already settled and conditions already fulfilled by the appellant in agreement. The appellant/claimant due to the injuries

sustained in the accident was all along deprived of all amenities of life and because of the reason that he could not enjoy the life in the way he was

enjoying before he met with the accident. Therefore, amount of Rs.1.60 lacs awarded by the learned tribunal is not sufficient, rather is grossly

deficient as per the terms of the policy. These submissions of learned counsel for claimant/respondent have been elaborately discussed hereinbefore,

while deciding Appeal of appellant Insurance Company (MA no.81/2018) and need not be again recapitulated here. It is made clear that computation,

assessment and grant of compensation has been rightly made by Tribunal, which need not be interfered with as the Tribunal has discussed all aspects

of the matter therefor. Given the discourse herein before, impugned Award need not be interfered with and as a consequence of which, appeal on

hand is liable to be dismissed.

In view of above, Appeal (MA no.31/2019) is dismissed.

Record of the Tribunal, if summoned/received, be sent down along with copy of this judgement.