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Judgment
Mrs. S. Sujatha, J.—This appeal by the Insurer is directed against the Judgment and Award passed by the Motor Accident Claims Tribunal, Gulbarga in MVC No. 1055/2010.
Briefly stated, the facts are:
That the claimants are the widow and minor children of the deceased Siddappa Yadav who died in the road traffic accident on 8-10-2010. The Tribunal on the claim petition filed by the claimants, awarded compensation of Rs. 9,41,600/- along with interest at 6% per annum thereon. Being aggrieved, the Insurer is before this Court.
Learned Counsel appearing for the Insurer vehemently contended that at the time of the occurrence of the accident, the deceased was a co-driver and the accident occurred when he was checking the air of the tyres of the vehicle near G.M. Dhaba on National Highway No. 9. It is submitted that the driver of the said lorry without noticing the co-driver moved the said vehicle as a result of which, the lorry rolled over the head of the deceased due to which the deceased sustained grievous injuries and died on the spot. It is contended that the co-driver was not on his wheels at the time of the accident and he died due to the injuries sustained by him in the accident. The insurance policy was covered with owner-driver and paid driver. Hence, the Insurer is not liable to indemnify the owner with respect to the co-driver.
As regards the quantum of compensation awarded by the Tribunal, it is contended that the driver was earning Rs. 6,000/- per month as per the admission of the claimants. The Tribunal erred in adding 30% of his income towards the future prospects. It is also contended that the compensation awarded under the different heads is also exorbitant.
On the other hand, learned counsel for the claimants justifying the Award passed by the Tribunal would contend that the vehicle was insured with the Insurer-Appellant and extra premium was paid towards the paid driver in addition to the owner-driver. He also placed reliance on Section IV of the terms and conditions of the policy which reads thus:
"Section IV - Personal Accident Cover For Owner-Driver:
Subject otherwise to the terms, exceptions, conditions and limitations of this policy, The Company undertakes to pay compensation as per the following scale for bodily injury/death sustained by the owner-driver of the vehicle, in direct connection with the vehicle insured or whilst driving or mounting into/dismounting from the vehicle insured or whilst travelling in it as a co-driver "
Learned Counsel also placed reliance on the following Judgment :
[a] ''The New India Assurance Company Limited v. Shri. R. Thippeswamy and others,'' (2007 AIHC 1176 (Kar).
[b] ''The Oriental Insurance Company Ltd. v. Smt. Muniyamma and others,'' 2009 Kant MAC 5281.
[c] ''Sri. Ajaz Ahamed v. The Manager, ICICI, Lombard Insurance Company Ltd. and another,'' (2013 (1) AIR Kar R 791).
[d] ''United India Insurance Company Limited, Belgaum D. v. Smt. Shanthavva and others,'' (2006 (2) AIR Kar R 367).
[e] ''Oriental Insurance Company Limited v. Kashim and another,''[1996 (1) KLJ 417] .
As regard the quantum of compensation challenged by the Insurer, learned Counsel invited my attention to the Judgment of this Court in the case of ''The Oriental Insurance Co. Ltd. v. Akkayamma & others, (AIR 2009 Kar 37) to contend that this Court should exercise discretionary power under Order 41, Rule 33 of CPC as the compensation awarded by the Tribunal is grossly inadequate.
Heard the rival submissions and perused the material on record.
The Insurance Policy - Exhibit. R1 under which the motor vehicle involved in the accident was covered clearly reveals that extra premium of Rs. 25/- was collected towards the paid driver besides the premium of Rs. 100/- collected towards owner-driver. The Central Motor Vehicles Rules permits employing an additional driver. Driving on a long route obviously causes exhaustion and tedium, further exposes to the risk of the accident, therefore engaging spare driver/paid driver is permitted by law and the tariff regulations IMT 40 provides the legal liability to paid driver employed in connection with the operation of the motor vehicle, thus covering the risk of paid driver i.e., the spare driver/co-driver on payment of additional premium which is paid in the instant case.
This Court in Shanthavva''s case, (2006 (2) AIR Kant HCR 367) [supra] following the judgment in Koshim''s case [supra] had held that the Insurer is liable to pay compensation for the spare driver by virtue of the provisions of Rule 100 of Karnataka Motor Vehicle Rules and Section 147 of the Motor Vehicles Act, 1988, [''the Act'' for short] which insists statutory cover for employees employed in connection with the motor vehicle. It is held that if the claim is in respect of only one driver even if he is not actually driving at the time of accident still the insurer becomes liable to pay under Section 147 of the Act as a statutory liability. Therefore, the Insurer in any circumstance cannot avoid payment of compensation to a spare driver.
This Court in Muniyamma''s case [supra] while considering the challenge made by the Insurer on the ground that the deceased was an occupant of the Tractor and as such the Insurer is not liable to indemnify the owner when the vehicle was covered under the Act Policy, has held that at the time of the accident, the deceased had alighted from the Tractor, the deceased was ran over by the wheels of the Tractor as such, the deceased was a third party. In the circumstances, the Insurance Company cannot be permitted to contend that it had issued an Act Policy in respect of the vehicle and therefore is not liable to pay compensation.
In the light of the judgment referred to above, it would be clearly held that the co-driver/paid driver who died in the accident when he was checking the air of the tyres of the vehicle is covered under the insurance policy at Exhibit. R1 in terms of the conditions of the policy as per Section IV extracted herein above. The contention of the Insurer that no additional premium was collected towards the co-driver is wholly untenable which is contrary to the insurance policy at Exhibit. R1. When it is apparent from Exhibit. R1 that the Insurer has collected the additional premium of Rs. 25/- towards the risk of the co-driver, the Insurer cannot escape the liability on the ground that the owner driver and the paid-driver are different. The premium collected towards the owner-driver establishes that it was for the driver or the owner and not the owner-cum-driver. In addition to the premium collected to cover the risk of the driver, the Insurer has collected additional premium of Rs. 25/- towards the paid driver i.e, co-driver. In such circumstances, the liability of the Insurer cannot be exonerated. Even otherwise, the accident occurred when the driver was outside the vehicle as contended by the Appellant - Insurer. If so, the deceased driver has to be construed as a third party. Section 147 of the Act comes to the rescue of the claimants to claim the compensation under third party risks. Section 147 of the Act read with Rule 100 of the Central Motor Vehicle Rules makes it clear that the third party risks are covered under the Act Policy issued as per Exhibit. R.1. In such circumstances, the Insurer cannot challenge the liability fastened on it on the ground that the risk of the co-driver was not covered under the insurance policy Exhibit. R1. Accordingly, the contentions of the Insurer deserves to be negated.
As regards the quantum of compensation awarded, the learned counsel for the Insurer would contend that the Tribunal erred in awarding the compensation towards future prospects at 30% to the deceased driver.
It is noticed that the Tribunal has applied the principles laid down by the Apex Court in the case of ''Santosh Devi v. National Insurance Company Limited and others,'' (AIR 2012 SC 2185). The compensation awarded under different heads is also too meagre considering the age of the widow and minors who are claimants before the Tribunal.
Even if the arguments of the learned counsel for the Insurer as regards the future prospects is accepted, considering the quantum of compensation awarded under different heads, being lesser, the same requires to be enhanced as under:
[a]
Loss of Consortium
Rs. 1,00,000/-
[b]
Loss of Love and Affection
Rs. 1,00,000/-
[c]
Loss of Estate
Rs. 50,000/-
[d]
Funeral Expenses and Transportation Charges
Rs. 25,000/-
[e]
Loss of Dependency
Rs. 6,72,000/-
Total (Excluding Future Prospects)
Rs. 9,47,000/-
In the circumstances, no grounds are made out by the appellant to reduce the total compensation awarded of Rs. 9,41,600/- by the Tribunal.
Accordingly, the appeal stands dismissed.
The amount deposited, if any, shall be transmitted to the jurisdictional Tribunal and the claimants are at liberty to withdraw the same.