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2011 DIGILAW 1194 (ALL)

ORIENTAL INSURANCE COMPANY LTD. v. SALAMAT ALI

2011-05-10

ABHINAVA UPADHYA, YATINDRA SINGH

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JUDGMENT THE FACTS By the Court.—Sri Salamat Ali (the Claimant) was going on Motor-Cycle No. DL5S 2363 (the Motor-Cycle) from Moradabad to Dehi on 6.6.1998. At 14:00 hours, when he was at village Mohamoodpur, he was stopped by two unknown persons They asked him for petrol. The Claimant refused to give it. The assailants fired shots on the Claimant and took away his Motor-Cycle. 2. An FIR of the incident was also lodged at 14:55 hours on 6.6.1998. It was registered as case crime No. 282 of 1998, under Sections 394, 307 and 411 IPC Police Station Gajraula, District Jyotibaphule Nagar. In the FIR the names of the assailants were not mentioned, however during investigation they were identified as Shaukat alias Rais and Yashpal alias Satpal (Respondents 2 and 3) and charge-sheet was filed against them. 3. The Claimant filed claim petition No. 314 of 2001 under Motor Vehicle Act, 1988 (the Act). It was allowed by Motor Accident Claim Tribunal/Additional District Judge, Court No. 13, Ghaziabad (the Tribunal) on 3.1.2006. The Tribunal has recorded the following findings: (i) Two unknown persons injured the Claimant for looting the Motor-Cycle. This is covered by Section 166 of the Motor Vehicle Act, 1988 (the Act); (ii) The Claimant had the driving licence; (iii) The disability of the Claimant is 100% and the Claimant is entitled to compensation under the following head: Rs. 1,58,370 for medical expenses; Rs. 3,45,500 for being deprived for future income; Rs. 50,000 for injuries, pain, depression and for being deprived for enjoying life: Thus, the Claimant is entitled to Rs. 5,54,070. (iv) The Oriental Insurance Company Ltd (the Company) that had insured the Motor-Cycle was liable to pay the compensation. 4. The Company has filed the present appeal. 5. This appeal was admitted on 22.3.2006. The Court while admitting the appeal required the Company to deposit a sum of Rs. 3,50,000. This could be withdrawn by the Claimant. 6. Against the aforesaid order, the Company filed Civil Appeal No. 368 of 2007 before the Supreme Court. It was allowed on 25.1.2007 and the order dated 22.3.2006 was modified on the basis of decision in Dhanraj v. New India Assurance Company, 2004(8) SCC 553 (the Dhanraj case). It was ordered that the amount deposited by the Company will not be withdrawn by the Claimant. SUBMISSION OF THE COMPANY 7. It was allowed on 25.1.2007 and the order dated 22.3.2006 was modified on the basis of decision in Dhanraj v. New India Assurance Company, 2004(8) SCC 553 (the Dhanraj case). It was ordered that the amount deposited by the Company will not be withdrawn by the Claimant. SUBMISSION OF THE COMPANY 7. We have heard Sri AK Shukla, counsel for the appellant and Sri Shesh Kumar and Sri SMA Naqvi for the Claimant. No one has appeared for Respondents 2 and 3. 8. The counsel for the Company submits that the Company is not liable to pay the compensation as, (i) The insurance of the Motor-Cycle was only for third party and damage to the Motor-Cycle; (ii) The risk of personal injury of the driver of the Motor-Cycle was not covered; (iii) The accident did not take place out of the use of Motor-Cycle and no proceeding for compensation can be taken under the Act. 9. In view of our decision on the first two submissions, it is not necessary to deal with the third submission of the counsel for the Company. THE DECISION 10. The certificate-cum-policy schedule is on the record. It is indicates that the policy was ‘Motor-Cycle B comprehensive policy’. The certificate indicates that premium has been paid for damage basic as well as liability to public. 11. The standard form for Motor-Cycle /scooter ‘B’ policy has also been filed by the Company. It explains basic damage as well as liability to the public: The basic damage means the damage to the Motor-Cycle; The liability to public means the third party liability covered under the Act. It was also so held by a division bench (of which one of us was a member) in FAFO 406 of 1992, New India Assurance Company Ltd. v. Smt. Uma Devi decided on 24.3.2011. 12. The standard form also indicates that personal accident cases can also be covered provided the premium is paid for the same and endorsement is made. It provides premium of Rs. 7.50 per year per person for Rs. 10,000. 13. No premium for personal accident has been given. The Supreme Court in the Dhanraj case and New India Assurance Company Limited vs. Sadanand Mukhi and others, 2009(2) SCC 417 has also held that driver was not entitled to compensation from the insurance company. It provides premium of Rs. 7.50 per year per person for Rs. 10,000. 13. No premium for personal accident has been given. The Supreme Court in the Dhanraj case and New India Assurance Company Limited vs. Sadanand Mukhi and others, 2009(2) SCC 417 has also held that driver was not entitled to compensation from the insurance company. In view of this, it is held that the Company is not liable to pay any compensation. CONCLUSIONS 14. In view of above, the appeal is allowed. The Company is not liable for any compensation to the Claimant. The amount deposited by the Company here may be sent to the Tribunal below. The entire amount deposited by the Company be refunded back to it. —————