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2005 DIGILAW 2289 (RAJ)

United India Insurance Co. Ltd. v. Shashikanta

2005-08-30

PRAKASH TATIA

body2005
Judgment Prakash Tatia, J.- Heard learned Counsel for the appellant. 2. The appellant has challenged the impugned award dated 18.05.2005 passed by the Motor Accident Claims Tribunal, Dungarpur in Accident Case No. 213/1999 by which the Tribunal allowed the claim petition for compensation on account of death of Claimant-Respondent No. 1s husband Narendra Kumar. In fact, because of this one accident which occurred on 07.02.1999, total three claim petitions were filed by three set of the claimants. 3. Accident Claim Case No 200/1999 was filed by two sons and one daughter of deceased Narendra Kumar claiming compensation of Rs. 39,24,000/-against which the Tribunal awarded compensation of Rs. 33,000/-with interest at the rate of 9% p.a. 4. Second claim petition was filed by respondent Smt. Shashikanta which is Claim Case No. 213/1999. In this case, the respondent claimed compensation on account of the injuries which she suffered in the same accident alongwith her husband. The respondent Smt. Shashikanta further claimed compensation on account of loss which she suffered due to death of her husband Narendra Kumar. In this claim case, the claim of Smt. Shashikanta on account of her own personal injury was rejected by the Tribunal after holding that the risk of owner of vehicle has not been covered in the policy. However, so far as the claim of Smt. Shashikanta on account of death of her husband is concerned, it was allowed by the Tribunal and total amount of Rs. 14,55,960/-has been awarded. 5. Third Claim Case No. 166/2002 has been filed by one Smt. Neeta who was also travelling in the same vehicle in which Smt. Shashikanta and Narendra Kumar suffered injuries. In this accident Smt. Neeta suffered injuries and she claimed compensation of Rs. 2,20,000/-. However, the Tribunal awarded total Rs. 15,600/-with interest at the rate of 9% p.a. 6. All the three claim petitions were decided by the Tribunal vide common award dated 18.05.2005 and the appellant has preferred appeal to challenge the award passed in Claim Case No. 213/1999. 7. According to learned Counsel for the appellant, in Claim Case No. 213/1999, the Tribunal dismissed the claim of Shashikanta holding that since she is owner and owners risk is not covered in the policy but still the Tribunal has awarded compensation in favour of Smt. Shashikanta on account of loss which she suffered due to death of her husband. 7. According to learned Counsel for the appellant, in Claim Case No. 213/1999, the Tribunal dismissed the claim of Shashikanta holding that since she is owner and owners risk is not covered in the policy but still the Tribunal has awarded compensation in favour of Smt. Shashikanta on account of loss which she suffered due to death of her husband. According to learned Counsel for the appellant, firstly, the owner of the vehicle is not party in Claim Case No. 213/1999; secondly, the Tribunal has not held the owner of the vehicle as liable for compensation and, therefore, committed serious illegality in holding the appellant Insurance Company liable to pay the compensation amount to the claimant. Learned Counsel for the appellant relies upon the Judgment of Honble Supreme Court delivered in the case of Oriental Insurance Co. Ltd. vs. Sunita Rathi & Ors., reported in 1998 ACJ 121, wherein the Supreme Court held that the liability of the Insurance Company arises when the liability of the insured is there and according to learned Counsel for the appellant, in case, when the insured has not been held liable, then the Insurance Company cannot be held liable to pay the compensation to the claimant. Learned Counsel for the appellant also relies upon the Judgment of Gauhati High Court delivered in the case of Branch Manager, United India Insurance Co. Ltd. vs. Harala Nath Shib, reported in 2001 AIHC 3685, wherein the Gauhati High Court held that when the owner is incurring no liability to anybody which was to be indemnified by the Insurance Company, then the Insurance Company is not liable to pay the compensation. Learned Counsel for the appellant also submitted that the interest awarded to the claimant is on higher side. 8. I have considered the submissions of learned Counsel for the appellant and perused the reasons given in the impugned Judgment . 9. It appears that the whole confusion in the mind of the appellant is because of the fact that the claimant Shashikanta had dual claims - one for her personal injuries and another because her husband died in the accident. Both the claims are totally separate and independent. Since, there was common question of fact and law involved, therefore, both the claims could have been clubbed in one claim petition. Both the claims are totally separate and independent. Since, there was common question of fact and law involved, therefore, both the claims could have been clubbed in one claim petition. Otherwise also, looking to the nature of the claim, if there would have been two claim petitions by the respondent Shashikanta, one on account of her own injuries and another for the loss which she suffered due to death of her husband in the accident, than the Tribunal could have clubbed both the claims. So far as the claim of Smt. Shashikanta on account of her personal injuries was concerned, since she was the owner of the vehicle and the defence of the appellant against the claim of Shashikanta on account of her personal injuries was that her risk was not covered under the insurance policy nor the appellant company was under an obligation to cover the risk of owner of the vehicle. That defence of Insurance Company was accepted by the Tribunal and the Tribunal consequently rejected the claim of Smt. Shashikanta on these grounds in the light of the facts mentioned above. It has nothing to do with the claim of Smt. Shashikanta as descendant and dependent of her husband Narendra Kumar. Narendra Kumar who travelling in jeep of her own wife was third party and this status is not disputed. Smt. Shashikanta, therefore, had eligible claim of claiming compensation on account of loss which she suffered on account of death of her husband. Smt. Shashikanta herself since was the claimant, she could not have impleaded herself as non-claimant nor it is permissible under law to implead claimant himself as non-claimant in case he/she is owner of the vehicle and claiming compensation due to death of a person upon whom he/she is dependent. 10. It is also important to mention here that the claim case filed by Shashikanta clearly founded upon negligence of the driver of her own jeep, therefore, her stand before the Tribunal was very clear that the driver of the vehicle was engaged by her and who caused the accident by his negligence. Meaning thereby, according to the claimant, the driver of the vehicle was responsible for the compensation. Meaning thereby, according to the claimant, the driver of the vehicle was responsible for the compensation. This impliedly means that Smt. Shashikanta, owner of the vehicle, having the capacity of the claimant, admitted her own liability in case the driver of the vehicle was found guilty of driving the vehicle rashly and negligently. The actual act of driving the vehicle by the driver is an act which gives cause of action for claiming compensation. The liability of the owner of the vehicle is automatic on proving facts that the driver of the vehicle caused the accident while driving the vehicle with the permission of the owner of the vehicle. In these circumstances, the Judgment s relied upon by learned Counsel for the appellant have no application. 11. In case of Sunita Rathi (Supra), the High Court exempted the owner of the vehicle from the liability but held that the insurer alone is liable. Such is not a situation here. The Tribunal held that accident was caused by the driver of the vehicle and it is nobodys case that even the driver of the vehicle is held liable for compensation, the owner of the vehicle is not vicariously liable because of any reason. In view of the above, I do not find any force in the submission of learned Counsel for the appellant that Smt. Shashikanta who was party in the claim petition still she should have been impleaded as non-claimant being owner of the vehicle or the Tribunal has committed illegality in awarding compensation without declaring the owner of vehicle liable for payment of compensation on account of her vicarious liability for the tortuous act of her driver. 12. So far as the point of interest is concerned, the Tribunal awarded compensation alongwith interest at the rate of 9% p.a. According to learned Counsel for the appellant, now the recent trend to award of interest is 6% p.a. which is the prevalent market rate, therefore, the award of interest deserves to be reduced. 13. I do not find any reason to interfere in the impugned award for reducing the interest which is 9% p.a. only. Reduction of rate of interest subsequently in the subsequent Judgment s may be a guiding factor for future award of interest by the Tribunal but award of interest at the rate of 9% cannot be so exorbitantly high so as to interfere in appellate jurisdiction. Reduction of rate of interest subsequently in the subsequent Judgment s may be a guiding factor for future award of interest by the Tribunal but award of interest at the rate of 9% cannot be so exorbitantly high so as to interfere in appellate jurisdiction. 14. So far as award of compensation to the claimant is concerned, it has been awarded on account of loss which the claimant suffered due to death of her husband. The deceased was of the age of 50 years. To prove the income of the deceased, the income tax returns Exhibits-13 to 15 were produced. Exhibit-15 is of the year 1998-1999 in which the income is shown as Rs. 1,58,835/-per annum. This income was accepted by the Tribunal and the Tribunal held that the deceased was getting Rs. 13,236/-per month. The Tribunal deducted 1/3rd of this amount giving Rs. 8,824/-for the dependents. The Tribunal applied the multiplier of only 11 and thereby calculated the compensation and enhanced the said amount by 25% on account of future prospects of earning. In view of the above and in view of no evidence in rebuttal the Tribunal rightly determined the compensation. 15. In view of the above discussion, I do not find any merit in this appeal and accordingly, the same is hereby dismissed.