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2005 DIGILAW 267 (RAJ)

National Insurance Co. Ltd. v. Rukmani

2005-01-29

DALIP SINGH

body2005
Judgment Dalip Singh, J.-These appeals have been filed by the appellants National Insurance Company Ltd. Jaipur and Rajasthan State Road Transport Corporation, Jaipur under Section 173 of the Motor Vehicle Act, 1988 against the award dated 110.1993 passed by the learned Judge, Motor Accident Claims Tribunal, Ajmer, in MACT Case Nos. 135/1987 and 188/1987. Civil Miscellaneous Appeal No. 677/1994 2. This appeal has been filed by the National Insurance Company Ltd. against the award passed by the MACT Ajmer in Claim Petition No. 135/1987 filed by the respondent Nos. 1 to 4 on account of death of Shri Bholu, who met with an accident involving the Bus No. RNM 7284 which was owned by the respondent No. 6 and was given on contract with the respondent No. 7 the Rajasthan State Road Transport Corporation, Jaipur and insured with the appellant National Insurance Company. The learned Tribunal had awarded an amount of Rs. 4,25,000/-by way of compensation to the claimant respondents. 3. The submission of the learned Counsel for the appellant is that the learned Tribunal has erred in directing that the liability of the owner i.e. the insured, the Insurance Company and the respondent No. 7 i.e., RSRTC would be joint and several. The further submission of the appellant is that the liability of the Insurance Company ought to have been made limited in view of the statutory provisions of Section 95(2)(B) of the M.V. Act, 1939. 4. I have considered the rival submissions made by the learned Counsel for the parties and perused the record including the cover notice issued by the appellant National Insurance Company which is at page 90 of the record of the Tribunal. A perusal of the said cover note shows that by charging an additional premium the Insurance Company had contracted for additional liability amounting to Rs. three lac. The appellant has also made an averment to this effect in ground J of memo of appeal and has contended that in view of the aforesaid contractual liability of the amount of Rs. three lac, the learned Tribunal could not have fastened the liability of the Insurance Company over and above the contractual liability. 5. I have considered the aforesaid submissions made by the learned Counsel for the appellants in the light of the material on record particularly, the cover note of the policy of Insurance. three lac, the learned Tribunal could not have fastened the liability of the Insurance Company over and above the contractual liability. 5. I have considered the aforesaid submissions made by the learned Counsel for the appellants in the light of the material on record particularly, the cover note of the policy of Insurance. It is no doubt true, that the liability of the Insurance Company is limited as per the contract of Rs. three lac. In this view of the matter, in the case of CMA No. 677/1994 where the Tribunal had passed an award of Rs. 4,25,000/-(Rs. four lac twenty five thousand only), it is made clear, that the liability of the insurer, Insurance Company and the RSRTC is joint and several as held by the Tribunal, however, the liability of the Insurance Company would be limited to Rs. three lac in terms of the contract of the Insurance. Further, it is made clear that if the Insurance Company had paid any amount over and above the aforesaid contractual liability of Rs. three lac the appellant would be entitled to recover the aforesaid excess amount from the respondent No. 6 the owner Shyam Lal Sharma and the respondent No. 7 Corporation in the said appeal to this limited extent. The award passed by the learned Tribunal in Claim Case No. 135/1987 is modified as aforesaid and the appeal stands disposed of . S.B. Civil Miscellaneous Appeal No. 98/1994. 6. The aforesaid appeal arises out of the aforesaid award in Claim Case No. 188/1997 filed by the claimant Smt. Rampyari & Ors. for compensation on account of death of one Gajanand pillion rider, who was going on Scooter No. 9906 who met with an accident with Bus No. RNM 7248 owned by the respondent No. 9 Shyam Lal Sharma and which was on contract with the RSRTC. The said bus was also insured with the Insurance Company. The learned Tribunal has passed an award of Rs. 1,92,944. 7. The said bus was also insured with the Insurance Company. The learned Tribunal has passed an award of Rs. 1,92,944. 7. Learned Counsel for the appellants submits that the National Insurance Company could not have been saddled with the liability over and above the statutory liability in view of the provisions contained in Section 95(2)(B) of the Motor Vehicle Act, 1939 and if at all the Insurance Company is made liable to pay the over and above liability the Insurance Company should be made free to recover any such amount so paid over and above the statutory liability in view of the Judgment of the Honble Supreme Court in the case of National Insurance Company Ltd. vs. Swaran Singh & Ors., 2004 (3) SCC 297 . 8. I am inclined to accept the submission of the learned Counsel for the appellant that in case, the appellant Insurance Company is saddled with any liability over and above the statutory/contractual liability as per the premium paid, it shall be free to recover the excess so paid. This appeal is accordingly disposed of . Civil Miscellaneous Appeal No. 34/1994 9. This appeal arises out of the same award dated 110.1993 passed by the MAC Tribunal, Ajmer in Claim Petition No. 135/1987 and has been filed by the appellant RSRTC vs. Smt. Rukmani Devi & Ors. for the death of one Bholu who met with an accident involving Bus No. RNM 7248. 10. Learned Counsel for the appellant Rajasthan State Road Transport Corporation has stated that so far as the question with regard to the liability of the Corporation is concerned, the RSRTC had taken the bus on contract from the registered owner for its purpose. The Honble Supreme Court in the Case of RSRTC vs. Kailash Nath Kothari has already held that the liability of the registered owner, the Corporation and the Insurance Company would be joint and several. Learned Counsel for the appellant Corporation has further submitted that the learned Tribunal has committed an error in awarding compensation of Rs. 4,25,000/-on account of death of Bholu and in view of the provisions contained in II Schedule of the M.V. Act, 1939, the multiplier of 33 ought not to have been applied for and as per the aforesaid provisions, the multiplier of 17 has been prescribed to be applied. 11. 4,25,000/-on account of death of Bholu and in view of the provisions contained in II Schedule of the M.V. Act, 1939, the multiplier of 33 ought not to have been applied for and as per the aforesaid provisions, the multiplier of 17 has been prescribed to be applied. 11. I have considered the aforesaid submissions made by the learned Counsel for the appellant RSRTC. It is true, that the multiplier of 17 has been prescribed under the provisions of II Scheduled of M.V. Act, 1988 in the case of deceased in the age group of 30 to 35 years however, it cannot be lost sight of that the accident was of a period prior to coming into force the Act, i.e., 01.07.1989 and the schedule in 1994. It is also to be taken in to account that the provisions of the II Scheduled of the M.V. Act, are the guiding principles nonetheless where the deceased was engaged in the business of selling milk and the learned Tribunal has not committed any error in taking the span of life as 65 years and applied the multiplier of 33 in the instant case. The claimants had led the evidence that the deceased was earning Rs. 3,000/-per month which has been reduced by the Tribunal to Rs. 1,500/-per month and from that also the 1/3rd of the amount has been further deducted towards the personal expenses as Rs. 1,000/- towards the dependency of the family. No evidence was led by the non-claimants on account of which the aforesaid evidence led by the claimants could be disbelieved and the learned Tribunal unilaterally on its own account reduced the income to Rs. 1,500/- and took the dependency as Rs. 1,000/-for personal expenses. In this view of the matter, the award passed by the Tribunal concerned, for compensation amounting to Rs. 4,25,000/-is just and proper and I am not inclined to interfere with the said quantum of compensation as if the income is taken as Rs. 3,000/-per month and multiplier of 17 is applied the gross compensation would come to Rs. 6,12,000/-(Rs. six lac twelve thousand only) and if 1/3 amount is deducted for personal expenses the amount for loss of income to the family comes to about Rs. 4,08,000/-(Rs. four lac and eight thousand only). In the facts and circumstances of the present case. 3,000/-per month and multiplier of 17 is applied the gross compensation would come to Rs. 6,12,000/-(Rs. six lac twelve thousand only) and if 1/3 amount is deducted for personal expenses the amount for loss of income to the family comes to about Rs. 4,08,000/-(Rs. four lac and eight thousand only). In the facts and circumstances of the present case. I am not inclined to interfere with the award passed by the Tribunal. 12. Consequently, these three appeals are dismissed. There shall be no order as to costs.