Reliance General Insurance Company Limited vs Tatyasaheb Bapu Kamble & Ors.

This appeal under Section 173 of Motor Vehicles Act takes exception to the Judgment and Award dated 11.01.2021 passed in M.A.C.P. No. 858 of 2018 whereby the death claim is allowed by directing payment of compensation of Rs. 27,30,100/- with interest @8% p.a. and the original opponents are directed jointly and severally to pay the said amount to the claimants.

The facts which led to filing of the present appeal can be narrated in brief as under.

It is the case of the claimants that on 16.11.2018 at about 5.35 p.m. the deceased aged about 50 years was pillion rider on motorcycle bearing No. MH-04-EE-9873. The rider of the said motorcycle was driving the said vehicle at high and excessive speed and in a negligent manner. When they reached to the spot of the accident, the rider of the motorcycle suddenly applied the brakes due to which the deceased was thrown away on the road and sustained serious injuries. Though he was admitted in the hospital he died on the same day. It is claimed that the motorcycle was owned by opponent No.1 and insured with opponent No.2 (present appellant). The claimants claimed about employment of the deceased with Roma Builders Pvt. Ltd. as a Telephone Operator and was earning Rs. 42,390/- per month.

The opponent No.1, the owner of the vehicle filed written statement denying contentions of the claimants with regard to age, occupation and income of the deceased. Similarly, dispute is raised with regard to the manner in which the accident in question has occurred. It is claimed that the deceased fell off the motorcycle due to his own negligence. Opponent No.2, the insurer resisted the claim by filing written statement denying the averments and contentions of the claimants. It is claimed that the owner has not furnished information of particulars of policy, date, time and place of accident, etc. It is also claimed that the liability of the insurer is subject to the terms and conditions of the contract of the insurance. There is also defence raised with regard to the rider of the motorcycle having no valid and effective driving licence at the time of accident. The claimants examined claimant No.1 and also led evidence of Mangesh Tambe, CW-2. Reliance is placed by the claimants on police papers. No evidence was led by the owner of the vehicle and insurer before the Tribunal. The Tribunal accepted the claim of claimants as stated above, hence this appeal.

Learned counsel for the appellant essentially takes exception to the Judgment and Award on the ground that in view of the terms and conditions of the insurance policy read with Section 147 of Motor Vehicles Act (prior to amendment) the liability of the insurer is at the most Rs.1 lakh. It is further argued that in any case, there would not be any liability on the payment of compensation in view of the prohibition of the policy for the use of vehicle for hire or reward. To support his submissions, he placed reliance on the policy placed on record before the Tribunal.

This contention is opposed by the learned counsel for the claimants submitting that this is not the act policy but a comprehensive policy. He argued that the limitation to the coverage is only for the owner and driver of the vehicle. It is submitted that the deceased was pillion rider and was traveling with colleague and hence neither the said clause remitting the liability nor with regard to the hire or reward gets attributable to the present case.

There cannot be any dispute with regard to the fact that the terms and conditions of the insurance policy is the agreement between the insurer and insured. The said agreement needs to be given its intended interpretation. Perusal of the Clause No.3 of limits of liability clearly indicates that the limitation of liability is only in respect of the coverage of the owner or driver.

Here in this case the deceased is pillion rider and the owner of the vehicle thus contended that the said clause is not applicable to the present case. In so far as the total denial of liability of payment of compensation the owner is relying upon the clause prohibiting the use of the motor vehicle for hire or reward. It is pertinent to note that there is no evidence led before the Tribunal to indicate that the vehicle was used for the purpose of hire or reward. It is not possible for any Court to presume that since the pillion rider was riding on the motorcycle, it should be considered for hire or reward. Pertinently there is no prohibition under the insurance contract for carrying any person other than the member of the family of the insured.

Having regard to this fact, this Court finds no substance in challenge to the Judgment and Award on this ground. Learned counsel for the appellant has sought to take exception to the interest granted @8% p.a. by the Tribunal.

Learned counsel for the claimants seeks enhancement of the compensation on the ground that the Tribunal has erred in excluding the amount of city compensatory allowance, educational allowance and bonus. There is no difficulty to accept City compensatory allowance and Education allowance to become part of income. As far as bonus is concerned, it is pertinent to note that the bonus as indicated from Exhibit-40 is not dependent upon the performance. It is the part of the allowance and the said bonus is @10% meaning fixed bonus not related to performance of the basic salary. In such circumstances, there is no reason to deduct the said amount from calculation. In so far as LTA is concerned, in absence of any evidence that even without availing LTA the entire payment of the allowances is there, the request for enclosing of the LTA stands rejected. Tribunal accepted salary @ Rs.26,494/- p.m. however allowance such as City compensatory allowance, Education allowance and bonus needs to be included therein.

Therefore, in the compensation city allowance , education allowance and bonus are required to be added.

Considering the above calculations, the claimants are entitled for following compensation :

Thus, the claimants are entitled for compensation of Rs. 39,34,448/-.

In view of above, I pass following order: