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Rajasthan High Court · body

2008 DIGILAW 2060 (RAJ)

Oriental Insurance Co. Ltd. v. Shakuntla

2008-09-03

N.P.GUPTA

body2008
JUDGMENT 1. - This appeal has been filed by the insurer, against the award of Motor Accidents Claims Tribunal No. 1, Sri Ganganagar, Camp Sri Karanpur dated 22.2.97, passing an award of Rs. 2,21,500 along with 12 per cent interest and further directing that if the amount is not paid within one month, the principal amount shall carry interest at the rate of 18 per cent. 2. Necessary facts according to the claim are that on 20.6.1992, the deceased Onkar Dutt was driving the jeep in question, wherein he was carrying ice, as the jeep was hired for carrying ice. When the jeep reached near Chak 10W left rear tyre got burst, with the result that jeep dashed against a tree and overturned. Again with the result that the deceased was crushed between the seat and steering and died in the hospital. The deceased was said to be 38 years of age. The owner submitted his reply pleading that the deceased was working as his employee at a salary of Rs. 1,200 per month apart from liveries and food and was working as driver. He pleaded ignorance about the accident and also pleaded that the accident did not occur on account of any negligence of the driver, but was on account of tyre burst and, therefore, the claimants are not entitled to claim any compensation from him. The insurance company also filed reply on 5.10.1993, pleading ignorance about the accident and denying the salary of the deceased. In additional pleas it was pleaded that the insured had committed breach of policy conditions and that at the time of accident deceased was not having a valid driving licence. It was also pleaded that the jeep was got insured for private purpose but at the time of accident it was being used for commercial purpose, therefore, insurance company is not liable for any compensation. 3. The learned Tribunal framed five issues. Issue No. 1 related to happening of the accident and issue No. 2 related to the income of the deceased. Then issue No. 3 comprehended question of quantum, then issue No. 4 was about the question as to whether the insured had committed breach of policy conditions and issue No. 5 was about the deceased having valid driving licence. 4. Since happening of the accident is not in dispute, I need not detain on issue No. 1. Then issue No. 3 comprehended question of quantum, then issue No. 4 was about the question as to whether the insured had committed breach of policy conditions and issue No. 5 was about the deceased having valid driving licence. 4. Since happening of the accident is not in dispute, I need not detain on issue No. 1. So far as issue No. 2 is concerned; the learned Tribunal has found that the claimants have alleged the income of the deceased to be Rs. 2,000 per month while the employer had pleaded to be paying a salary of Rs. 1,200 per month apart from liveries and food. Considering this, the learned Tribunal has assessed the salary of the deceased at Rs. 1,500, which in my view does not require any interference. 5. Regarding issue No. 5, the learned Tribunal has found that at the time of accident the deceased was having licence to drive the light transport vehicle and the vehicle involved is jeep, which falls within definition of light motor vehicle and thus, he was having valid driving licence. It was not shown that at the time of accident he was otherwise declared ineligible to drive. 6. Then, the question is about breach of policy conditions, viz. user of the jeep for carrying ice, while the vehicle was registered for private use. I need not detain on that aspect for the simple reason that the liability of the insurer under section 147 extends to indemnify the insured against the liability in respect of bodily injury, or death sustained by an employee, arising out of and in the course of employment arising under Workmen's Compensation Act, 1923, on the employee being engaged in driving the vehicle. In the present case admittedly the deceased was driving the vehicle, as an employee and died in an accident, arising out of and in the course of employment. 7. In that view of the matter, the insurer cannot escape the liability to the extent, it arises under the Workmen's Compensation Act. Otherwise, as an occupant of the vehicle, the liability could not be fastened in respect of occupants of the private vehicle. 8. Learned counsel for the claimants (sic appellant) in such circumstances submitted that the quantum of compensation awarded may be limited, to the one awardable under the Workmen's Compensation Act. 9. Otherwise, as an occupant of the vehicle, the liability could not be fastened in respect of occupants of the private vehicle. 8. Learned counsel for the claimants (sic appellant) in such circumstances submitted that the quantum of compensation awarded may be limited, to the one awardable under the Workmen's Compensation Act. 9. Accordingly, the impugned award is modified in the manner that the claimants are held entitled to a compensation of Rs. 1,13,736, which is the amount to which the claimants are entitled under section 4, read with Schedule IV appended to the Workmen's Compensation Act; as the deceased was 38 years of age and has been assessed to be getting income of Rs. 1,500 per month and multiplying 40 per cent thereof to the relevant factor being 189.56, this amount has been arrived at. 10. Admittedly, the compensation has not been paid within one month of its becoming due and, therefore, the claimants are also entitled to be awarded penalty to the extent of 50 per cent of the amount of compensation and are also required to be held entitled to get interest on the said amount of Rs. 1,13,736 at the rate of 6 per cent from the date as provided in section 4-A. 11. Accordingly, the appeal is partly allowed and the claimants are held entitled to compensation of Rs. 1,13,736 along with a penalty of 50 per cent on the above amount and interest at the rate of 6 per cent from the date as provided under section 4-A. However, in view of the latest judgment of Hon'ble Supreme Court, it is clarified that the insurer shall be liable for payment of compensation of Rs. 1,13,736 and interest only and the claimants may recover the amount of penalty from the owner.Appeal partly allowed. *******