USHA SEHGAL v. CHHOTE — 1985 DIGILAW 185 (DEL)

S. B. Wad, J. ( 1 ) THIS is an appeal filed against the order of the Motor Accidents Claims Tribunal dated 5-9-1979 whereby the Tribunal awarded a sum of Rs. 1,09,718. 00 with cost of the proceedings to the claimants. The Tribunal also directed that the liability of the New India Assurance Company Limited, respondent No. 5 was limited to Rs. 50,000. 00. An award for the balance amount has been passed against respondents I and 2 jointly and severally. The Insurance Company has deposited the said amount of Rs. 50,000. 00 and the claimants are paid that amount. This appeal was listed for hearing on 23-1-1985. Neither the respondents nor the counsel were present. The appeal was allowed by me on that date with enhanced compensation and interest. Subsequently, applications were moved on behalf of the D. T. C. respondent No. 4 and New India Assurance Co. Ltd. , respondent No. 5 explaining their absence on the date of hearing and further praying for the re-hearing of the appeal. I was satisfied with the explanation given in the said applications and the appeal was therefore set for re-hearing. ( 2 ) ON 25-9-1974 at about 8-30 A. M. Narinder Prakash Sehgal, the deceased was going on his cycle and on the crossing of the Parliament Street and Ashoka Road near the Patel Chowk he was hit by the bus No. DLP 5682 under the service of Delhi Transport Corporation. Narinder Prakash Sehgal died on the spot. These facts are duly proved by the evidence before the Tribunal and need not be repeated here. At the time of the death Narinder Prakash Sehgal was about thirty years old. He was survived by his widow, two minor sons and one daughter. He had also an old father to be supported. At the time of his death he was serving with M/s. Engineers India Ltd. , Parliament Street, New Delhi. His salary was Rs. 826. 00 per month. After deducting one-third amount for his personal expenses the Tribunal came to the conclusion that his annual contribution to the family would have been Rs. 6612. 00. Considering his age as thirty years a multiplier of twenty years has been applied by the Tribunal and on that basis the Tribunal came to the conclusion that Rs. l,32,240. 00 would be the appropriate amount of compensation. 6612. 00. Considering his age as thirty years a multiplier of twenty years has been applied by the Tribunal and on that basis the Tribunal came to the conclusion that Rs. l,32,240. 00 would be the appropriate amount of compensation. The Tribunal also considered that he was sup porting his wife, three minor children and the old father. The Tribunal has, however, deducted a sum of Rs. 30,000. 00 received by the widow from the Life Insurance Corporation and the amount of Rs. 1600. 00 received by way of gratuity and has further deducted a sum of Rs. 19,362. 00 for the lump sum payment. ( 3 ) CONSIDERING the recent decisions of this Court and the decisions of the Supreme Court none of these amounts should have been deducted. The amount of compensation is an attempt at reinstatement in terms of money the loss suffered by the family This includes the personal loss and also the material well being to which the family is deprived. I do not think that the deductions, as made by the Tribunal, were proper and set aside that part of the order of the Tribunal. I, therefore, direct that the respondents are liable to pay a sum of Rs. l,32,240. 00 as a compensation to the appellants. ( 4 ) THE counsel for the Respondent No. 5 the Insurance Co. has pleaded that the liability of the insurance company-was limited to Rs, 50,000. 00 only. According to the counsel the liability of the insurance company under Section 96 of the Act is limited to liability as mentioned in Sub clause (b) of Sub-section (1) of Section 95. The said liability under Section 95 was restricted at the relevant time to Rs, 50,000. 00. There appears to be some mis-conception about the liability of the insurance company under Section 96. Sections 96 and 95 form part of Chapter VIII which concerns with liability to the third party. Section 94 of the Act makes it compulsory for the vehicles plying on the public road to be compulsorily insured. The object of making insurance compulsory was to see that in all cases where a death or bodily injury is caused by a vehicle plying on the public. road, a definite compensation would be paid. The policy that a vehicle plying on the public roads must mandatorily is a policy called "act Only" policy. The object of making insurance compulsory was to see that in all cases where a death or bodily injury is caused by a vehicle plying on the public. road, a definite compensation would be paid. The policy that a vehicle plying on the public roads must mandatorily is a policy called "act Only" policy. The minimum premium of Rs. 94. 00 was fixed at the relevant time for which an "act only" policy what Sub-clause (b) of Sub-section (1) of Section 95 speaks of is an "act only" policy. The amount on such a policy is the minimum that a third parly would be entitled to in case of an accident. But the policy may cover higher risk to third parties by taking additional premium. There is yet another variety of a policy which is called comprehensive policy. This policy takes care of the liability to pay compensation to the owner or to a passenger or to a third party. . Additional premium is taken for additional risks such as fire, riots etc. If it is a third party policy or a comprehensive insurance policy, the insurance company will be bound to pay higher compensation which would in all cases be more than the compensation under an "act Only" policy. In the present case the claimants had asserted that the policy was the comprehensive policy. The claimants are the strangers to the policy. The original policy is in possession of the owner of the vehicle and a copy is maintained by the insurance company. But neither the owner nor the Insurance company in the present case produced any evidence. No body was examined on their behalf, nor any document produced by them. The counsel for the appellant was also the counsel for the same parties before the Tribunal and he stated that the insurance policy was not produced by the owner or the insurance company. The counsel for the insurance company could not contravert this assertion. As a matter of fact no such insurance policy is on the trial court record. It is not known how the Tribunal has referred to the policy giving the exhibit number I would, therefore, hold that the policy in question was a comprehensive policy and was not the "act 0nly" policy. As a matter of fact no such insurance policy is on the trial court record. It is not known how the Tribunal has referred to the policy giving the exhibit number I would, therefore, hold that the policy in question was a comprehensive policy and was not the "act 0nly" policy. In tact in the written statement filed by the Insurance Company and the owner jointly it is not asserted that the policy was an "act Only" policy or that it was not a comprehensive policy. Even, if for the sake of argument it is accepted that the liability of the Insurance Company is limited to Rs 50,000. 00 and the rest of the liability would be that of the owner under Section 96 read with Section 95 of the Act, that would not make any difference in the present case. The insurance company took over the defenceon behalf of itself and also of the owner A joint written statement was filed on their behalf. The counsel for the insurance company also undertook to appear for the owner during the proceedings. The owner was, there fore not present nor did he engage a separate counsel. This fact would further, go to show that the insurance company, respondent No. 5 had assumed the liability for the payment of compensation. I have therefore, no hesitation in holding that respondent No. 5 is liable for the payment of compensation of Rs. 1,32,240. 00 to the appellants. The appellants are also entitled to 6% simple interest form the date of the application till the date of the actual payment by respondent No. 5. The vehicle in question was a private vehicle of the owner but under the service of the D. T. C. The counsel for the D. T. C. submitted that D. T. C. was not liable as according to the Motor Vehicles Act the liability is only of the owner. The vehicle in question was a private vehicle of the owner but under the service of the D. T. C. The counsel for the D. T. C. submitted that D. T. C. was not liable as according to the Motor Vehicles Act the liability is only of the owner. He also submits that by virtue of a contract between the owner and the D. T. C. the liability for payment of compen- 85 sation in case of accident was passed on to the owner of the bus and not on the D. T. C. In reply the counsel for the appellant has submitted that the private vehicle of the owner was being plyed into service of the D. T. C. The licence was also held by the D T. C. For these reasons, he submitted that the D. T. C. is liable to pay compensation. Considering the provisions of the Act and the contract between the owner and the D. T. C. there is no doubt that it is only the owner who is liable. D. T. C. is not liable. The fact that the vehicle was in the service of the D. T. C. or that the licence was in the name of the D. T. C. would not make any difference. This is because the contract has by a specific term excluded the D. T. C. from any liability and had reiterated the liability of the owner as provided by the Act. ( 5 ) THE appeal is allowed with costs against the respondent No. 5.