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2010 DIGILAW 213 (RAJ)

New India Assurance Co. v. P. Velumani @ Mani

2010-01-27

B.RAJENDRAN, PRABHA SRIDEVAN

body2010
Hon'ble SRIDEVAN, J.—This Civil Miscellaneous Appeal has been filed against the award dated 15.12.2003 passed in M.C.O.P.No.634 of 1999, on the file of the Motor Accidents Claims Tribunal (Principal District Judge), Trichirappalli. Though the Civil Miscellaneous Appeal was filed in the year 2005, it has been numbered only now. 2. The claim is made by the legal heirs of the deceased i.e., one Pitchai. When P.W.1 was waiting in the bus stand for the bus at 09.00 p.m. on 09.12.1998, one Ramasamy came in a motor cycle bearing Regn.No.TN 57 P 0867 and the deceased travelled in the said motor cycle as a pillion rider towards his residence. When the motor cycle was proceeding on the Dindigul Road, the bus which was coming from the opposite direction dashed against the motor cycle and due to the said impact, the deceased/pillion rider sustained grievous injuries. He was admitted in Sea Horse Hospital and then succumbed to the injuries. At the time of accident, he was working as a Warden in the Government Boys Hostel at Crawford, Trichy, which is the State Government Department under the District Backward Classes and Minorities Welfare Board Office, Trichirappalli. He was drawing a salary of Rs.12,358/- per month. He was 47 years at the time death. At the time of making the claim, apart from the deceased's wife, there were minor children viz., the second respondent herein was 15 years, third respondent herein was 13 years and fourth respondent herein was 10 years. A claim was made for Rs.20,00,000/-. The Tribunal awarded Rs.13,55,000/- against the claim made by the respondents 1 to 4/ petitioners. 3. The grounds taken in the appeal are that since the motor cycle was covered by Act Policy and no coverage was given for pillion rider, the Insurance Company cannot be made liable for the claim. In addition, the quantum is also challenged as excessive. 4. We find from the Award that the Tribunal has noted that as per Ex.B1, Policy, premium has been paid for two persons, which means, it would include the driver of the motor cycle and the pillion rider. In 1977 ACJ 343 - Pushpabai Purshottam Udeshi vs. Ranjit Ginning and Pressing Co., the Supreme Court observed that: "22. .. 4. We find from the Award that the Tribunal has noted that as per Ex.B1, Policy, premium has been paid for two persons, which means, it would include the driver of the motor cycle and the pillion rider. In 1977 ACJ 343 - Pushpabai Purshottam Udeshi vs. Ranjit Ginning and Pressing Co., the Supreme Court observed that: "22. .. As under Section 95 the risk to a passenger in a vehicle who is not carried for hire or reward is not required to be insured the plea of the counsel for the insurance company will have to be accepted and the insurance company held not liable under the requirements of the Motor Vehicles Act. 23.The insurer can always take policies covering risks which are not covered by the requirements of Section 95. In this case the insurer had insured with the insurance company the risk to the passengers. By an endorsement to the policy the insurance company had insured the liability regarding the accidents to passengers in the following terms: "In consideration of the payment of an additional premium it is hereby understood and agreed that the company undertakes to pay compensation on the scale provided below for bodily injury as hereinafter defined sustained by any passenger .."" 5. In (2009) 2 MLJ 963 - Royal Sundaram Alliance Insurance Co.Ltd. vs. A.Meenakshi, which dealt with the legal issue relating to coverage of risk to gratuitous passenger travelling in a private car, the Division Bench of this Court, of which one of us (Mrs.Justice Prabha Sridevan) was a party, extracted from the Critique on Motor Vehicle Laws by Justice K.Kannan and N.Vijayaraghavan. "27.In Motor Vehicle Laws - 13th Edition, 2008 (Lexis Nexis Butterworths Wadhwa, Nagpur), which is a critique on motor vehicle laws by Justice K.KANNAN and N.VIJAYARAGHAVAN, the learned authors on considering the large scale use of two wheelers with pillion riders and carriage of gratuitous occupants in private car have given their opinion, referring to various judgments under the head "Liability of insurer for death/injury to gratuitous passengers in private car under a Package/Comprehensive PolicY", since it is a very serious and sensitive issue that requires examination, they observe as follows: "Motor TP cover is still governed by Tariff. What TAC had directed or expressed in 1977 still holds good and their decision to amend the Policy wording which is in use till date, continues to bind the Insurers. What TAC had directed or expressed in 1977 still holds good and their decision to amend the Policy wording which is in use till date, continues to bind the Insurers. The Insurers cannot ignore the TAC decision arid argue as if the Policy is framed or issued by them independently and there is no cover for occupants. In our opinio, the 'additional premium' argument cannot be stretched too far by the insurers, ignoring the Policy wording and the intention to cover as stipulated by TAC." The learned authors also observed as follows. "The liability of insurer to a pillion rider and a gratuitous occupant would depend upon the cover granted by insurer being Act Policy or Package Policy. In respect of an Act Policy such persons are not required to be covered. It is only under a Package Policy such persons are covered by the contract of insurance. Under the earlier dispensation in Motor Vehicle Act, this position was the same. In Pushpabai's case, the Supreme Court had held that the insurer would not be liable to occupants carried in a private vehicle under a Policy. In K.Gopalakrishnan vs. Sankaranarayanan, 1969 ACJ 34 and National Insurance Co. Ltd. vs. V.Vasantha, 1987 ACJ 887, the High Court, Madras had held that insurer was not liable to pillion riders carried on a 2 wheeler under an Act Policy. Similar decisions were delivered by all Courts barring a few." 6. From the above, it is clear that it is always open to the insurer to cover risks which are not required to be covered by the Act and the liability of the insurer to a pillion rider would depend on the cover granted by the insurance company, whether it is an Act Policy or a Package Policy, though in respect of an Act Policy such persons are not required to be covered. In this case, we find that the Tribunal had read Ex.B-1, the Policy, and observed that premium has been paid for two persons, which, in the instant case, can only refer to the rider and the pillion rider because the vehicle is a motor cycle. Therefore the ground taken that the vehicle was covered by Act Policy and the pillion rider will not be covered is unsustainable. Therefore the ground taken that the vehicle was covered by Act Policy and the pillion rider will not be covered is unsustainable. The other ground taken before the Tribunal that the rider of the motor cycle had no license and that is a breach of policy conditions is also not proved. 7. As regards the quantum, we find that the award is a quite reasonable one. There can be no dispute regarding the salary earned by the deceased, since Salary Certificate has been produced and he was an employee under the District Backward Classes and Minorities Welfare Board Office, Trichirappalli. Therefore we find no reason to disbelieve the Salary Certificate. 8. The Tribunal has also deducted 1/3rd in the salary for personal expenses and has applied multiplier 13, which is correct as per the Second Schedule appended to the Motor Vehicles Act for the persons aged about 46 years. In some decisions of the Supreme Court, a lesser multiplier than what has been given in the second scheduled was adopted. But, in this case, the possible future increase in the income has not been taken note of. Hence, we will not interfere with the multiplier fixed by the Tribunal. 9. As regards the medical expenses, the award of Rs.45,000/- is on the basis of the bills produced. The Tribunal has awarded a very modest sum of Rs.10,000/- for funeral expenses as well as consortium. It is, in fact, on the lower side. In these circumstances, we do not find any justification in interfering with the award passed by the Tribunal and that too, after a lapse of so many years and the appeal deserves to be dismissed. 10. We find that the second respondent viz., Santhanalakshmi, who was 15 years at the time of the accident i.e., in 1999, will be almost 25 years now. The third respondent Logeshwaran, who was 13, would be about 23 years now. The fourth respondent viz., Bharathiraja, who was 10 years, will be 21 years. Therefore any amount that has been directed to be kept in fixed deposits during the period of their minority can also be paid over to respondents 2 to 4. 11. In the result, the Civil Miscellaneous Appeal is dismissed and the award passed by the Tribunal is confirmed. No costs. Consequently, connected Miscellaneous Petition is dismissed.