The Oriental Insurance Company Limited vs Gautam Lal alias Gautam Ram and Others

K. Kannan, J.—The Insurance Company is in appeal challenging the issue of negligence and quantum. An order had been originally dictated on 01.10.2010 dismissing the appeal on an assumption that a permission u/s 170 had been sought for and refused. I had reopened the case suo motu on the same day and directed the counsel to advance arguments. The counsel appearing on behalf of the Appellant states that no application had been filed u/s 170 but it was stated in the written statement by way of pleadings that there had been a collusion between the claimant and the owner. This, in my view, is not sufficient to enable the claimant to obtain a right to canvass the case on the issue of negligence and quantum. Even if it were to be taken that instead of filing a separate petition, even an averment of collusion in the statement could be taken as sufficient, even then I cannot admit the insurer to join issues on negligence and quantum without adducing any evidence or setting out for details for inferring that there had been a collusion between the claimants and the insured.

I still examined the case as regards the negligence and quantum only to satisfy the judicial conscience that there had been no serious error in the course of justice. It was a case of death of an alternate driver-cum-cleaner travelling in the insured''s vehicle. The insured''s vehicle had dashed against a stationary truck that resulted in the death of the cleaner. The attempt of the insurer was to show that the accident arose out of the negligent driving of the driver himself and, therefore, the insurer could not have been made liable. If the deceased was a cleaner in a goods carriage, he was a person, who was required to be covered for risk for death or bodily injury under the provisions of the Workmen''s Compensation Act. The negligence of the insured''s driver would, therefore, be a justification for the alternate driver/cleaner travelling in the same vehicle to claim a right of enforcement of the award against the insurer. Even as regards the quantum, the Tribunal had taken the extent of dependence to be only Rs. 1,500/ -, adopted a multiplier of 13 and determined a compensation of Rs. 2,34,000/ -. The total compensation determined for a claim arising at the instance of the parents cannot be said to be excessive for any intervention. The appeal is dismissed although on slightly different grounds than how it was examined on 01.10.2010.