Vanitaben Rajubhai Patel and Others vs Sureshbhai Mohanbhai Patel and Others

M.D. Shah, J.—By this first appeal the appellants-original claimants have challenged the judgment and award dated 12-3-2007 passed by the learned M.A.C.T. (Aux.), Presiding Officer and Fast Track Court, Valsad, in M.A.C.P. No. 1858 of 2002 (Old MACP No. 266 of 2001). The claim petition was filed by legal heirs of the deceased Rajubhai Devabhai Patel to get compensation of Rs. 8,00,000/- from all the opponents in respect of death of the deceased caused due to vehicular accident which took place on 10-3-2000 at about 2100 to 2400 hours. It is the case of the claimants that deceased was travelling as a pillion rider on Zuzuki motor cycle No. GJ-15-R-4741 driven by one Sureshbhai and when the said motor cycle reached near Village Vaghaldhara Dobikui on National Highway Road No. 8, an unknown vehicle collided with the said motor cycle causing fatal injuries to the deceased. The learned Tribunal after considering oral and documentary evidence partly allowed the claim petition of the appellants herein. Against the said award, legal heirs of the deceased have preferred this appeal.

It is submitted by Mr. Amit Patel, learned advocate for the appellants herein that learned Tribunal has not properly appreciated evidence on record. It is also submitted that as per the policy of the motor cycle, it is comprehensive policy and risk of pillion rider is covered and, therefore, insurance company is liable to pay compensation. Learned advocate for the appellants took this Court to the policy which shows that policy is package policy and insurance company is liable to pay compensation, however, the error in holding that the policy is only an Act policy and risk of pillion riders are covered and hence, the claimants are not entitled to any compensation and the Tribunal has wrongly dismissed the claim petition against the insurance Company.

Heard learned advocates for the respective parties. This Court has gone through the judgment and award passed by the learned Tribunal together with oral as well as documentary evidence on record.

This Court has gone through the policy and it prima facie appears that policy is comprehensive policy and Tribunal has committed error in exonerating insurance company. This Court has gone through the decision of Hon�ble Supreme Court in the case of National Insurance Company Ltd. Vs. Balakrishnan and Another, It is held by the Hon�ble Supreme Court in the decision of Balakrishnan (supra) that if the policy is a comprehensive policy, then insurance company is liable to indemnify the risk covered under the policy and, therefore, the Tribunal has committed error in holding that insurance company is not liable to pay compensation. The Tribunal has held that the deceased was 30 years as per the post mortem rep and, therefore, suitable multiplier will be 17 instead of 16 which was applied by the Tribunal and, therefore also, the Tribunal has committed error. Considering this aspect, the claimants are entitled to get additional compensation of Rs. 16,000/- with running interest @ 7.5% from the date of claim petition till realisation.

Considering the facts and circumstances and considering the evidence on record and ratio laid down by the Hon�ble Supreme Court in Balakrishnan (supra), in opinion of this Court, all the original opponents are liable to pay compensation. In view of above, the first appeal is partly allowed. Impugned judgment and award is modified to the extent that all the original opponents are jointly and severally liable to pay the compensation of Rs. 2,80,860/- with running interest @ 7.5% per annum to the claimants from the date of filing of claim petition till realisation. The remaining part of the judgment and award would remain unaltered. If any amount is paid in pursuance of the order passed by the Tribunal u/s 140 of the M.V. Act, then that amount will be adjusted while disbursing the amount by the Tribunal. Record and Proceedings, if any, be sent to the concerned Tribunal forthwith.