Sanjivkumr vs The Divisional Manager, National Insurance Co. Ltd.

A.S. Pachhapure, J.—The owner of the vehicle in question has challenged the liability and the quantum of compensation awarded to respondents 2 to 4 herein for the death of one Siddaya Swami in a motor vehicle accident.

The facts reveal that an accident occurred on 06.06.2010 when Siddayya Swami was proceeding in the jeep bearing No. KA-39/M-171. He sustained severe injuries and died. His first wife and minor children made a claim for compensation in MVC No. 493/2010. The Tribunal held that the accident was due to the rash and negligent driving of the jeep by its driver and having assessed the income of the deceased at Rs. 3,000/- per month, deducted 1/3 towards the personal expenses of the deceased and awarded a sum of Rs. 4,08,000/- as compensation towards loss of dependency and a sum of Rs. 40,000/- towards the conventional heads. Totally, a sum of Rs. 4,48,000/- was granted with interest at 6% p.a. So far as the liability is concerned, it held that the insurer cannot be made liable, as the liability of the inmates is not covered under the policy produced at Ex. R1 and therefore, made the appellant liable to pay the compensation. Aggrieved by the judgment and award, the present appeal is filed.

During the pendency of this appeal, the second wife and children of the deceased made an application in I.A. 3/2012 and as it was not objected, the said application was allowed by this Court vide order dated 09.04.2014 and the said legal representatives are respondents 5 to 7.

In the circumstances, I have heard the learned counsel for both the parties.

The points that arise for my consideration are:

"1) Whether the amount of compensation awarded is on the higher side?

2) Whether the insurer is liable to indemnify the owner?"

Learned counsel for the appellant submits that though the policy produced at Ex. R1 is an Act policy, the insurer has covered the risk of 9 passengers agreeing to pay Rs. 50,000/- each and it is only one passenger who has sustained injuries and consequent death, the insurer could be made liable to pay the compensation which is payable to 9 passengers and therefore, he submits that the impugned judgment and award needs modification. He also submits that the compensation awarded is on the higher side.

On the other hand, learned counsel for respondent No. 1 - the insurer supporting the judgment and award of the Tribunal submits that as the policy - Ex. R1 is an Act policy, the risk of the inmates is not covered.

Learned counsel for respondents 5 to 7 submits that the insurer is liable to indemnify the owner and for non production of the insurance policy, the insurer is bound to pay the compensation that had been awarded by the Tribunal, as the cover note only has been produced. He submits to distribute the amount to all the legal representatives inclusive of respondents 5 to 7.

So far as the quantum of compensation is concerned, it is relevant to note that the Tribunal has assessed the income of the deceased at Rs. 3,000/- per month. The accident is of the year 2010. Therefore, so far as the assessment of compensation is concerned, it cannot be said to be excessive. Only a sum of Rs. 40,000/- has been awarded on conventional heads. Therefore, I feel that the compensation awarded is just and reasonable.

So far as the liability of the insurer is concerned, Ex. R1 is the insurance policy. It is not that only a cover note has been produced. The policy reveals that it is an Act policy covering the risk of third parties. However, as could be seen from the contents of the policy at Ex. R1, there is a clause under IMT-20 and a sum of Rs. 225/- has been collected to cover the risk of unnamed passengers 9 in number and the amount being confined at Rs. 50,000/- per person. So when there is a specific condition incorporated in the contract between the owner and the insurer, the policy indicates that there is no risk of a person who is travelling in the vehicle except to the extent stated above. This condition incorporated has to be strictly interpreted. The sentence "PA to Unnamed Passengers Number 9, Amount Rs. 50,000/- Per Person" indicates that the insurer has liability in respect of 9 unnamed passengers and the liability of the insurer is to an extent of Rs. 50,000/- for each person.

In the accident in question, it is only Siddayya Swami, who sustained injuries and died in the said accident. There is only one claim petition in respect of the person, who died in the accident and therefore, applying the strict interpretation of the conditions of the Act policy, I am of the opinion that to an extent of a sum of Rs. 50,000/-, the claimants can seek a direction from this Court against the insurer to pay a said sum and the excess amount if any, is payable by the owner of the vehicle. To this extent, the impugned judgment and award needs modification.

Respondents 5 to 7 herein were impleaded for the first time in this appeal under I.A. 3/2012. Respondent No. 5 is the second wife, whereas respondents 6 and 7 are the children born through the second wife. So far as the distribution of compensation is concerned, the facts reveal that they had also filed a claim petition in MVC No. 10/2011. This claim petition was withdrawn after the adjudication of the claim petition made by the respondents 2 to 4. Respondents 5 to 7 are impleaded by an order in this appeal. Therefore, the question regarding the distribution of compensation is a matter, which has to be taken into consideration by the Tribunal. To this extent, the impugned judgment and award needs modification.

In the circumstances, the appeal is allowed in part affirming the quantum of compensation awarded by the Tribunal and by imposing the liability on the insurer to an extent of Rs. 50,000/- in the award amount with interest on the said sum. The remaining compensation awarded shall be paid by the owner - the appellant herein. Only to an extent of distribution/shares in the compensation, the matter is remitted back to the Tribunal. It shall hear both the parties and dispose of the claim petition on merits by disbursing the amount of compensation amongst all the legal representatives legally entitled to.

To avoid the delay, both the parties are directed to appear before the Tribunal on 04.02.2015.

The amount in deposit be transmitted to the Tribunal.