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2011 DIGILAW 393 (ORI)

New India Assurance Co. Ltd. v. Tulsi Rout

2011-07-29

V.GOPALA GOWDA

body2011
JUDGMENT This Misc. Appeal is filed by the New India Assurance Co. Ltd. questioning the correctness of the judgment passed against it by the IIIrd M. A. C. T., Balasore in M. A. C. T. No. 151/1998 of 96-93 in awarding Rs. 1,53,600/- with 12% interest in favour of the claimants-respondents herein urging various grounds and prayed for setting aside the judgment by allowing this appeal. 2. The brief facts for appreciating the legal grounds urged in this appeal with a view to find out as to whether the impugned judgment and award is required to be interfered with by this Court are that the respondent-claimants herein have filed a claim petition before the IIIrd M. A. C. T., Balasore claiming compensation of Rs. 2,35,000/- for the death of Ramakanta Rout in a road accident that occurred on 31-8-1992 at 3.30 P. M. at Soro-Kupari Road near village Hansaguda. While he was riding his motor cycle bearing Regn. No. OR-01-2943, suddenly a calf appeared before the motor cycle and in order to save the life of the calf, he could not control the motor cycle as a result of which the motor cycle dashed against the road side tree, the deceased received multiple injuries on his body and later succumbed to the injuries. 3. The claim petition was opposed by the appellant-insurer. The insurer filed the counter statement denying its liability to pay any compensation as they have not admitted regarding insurance of the vehicle involved in the accident. It has also stated that the respondent claimants did not specifically indicate in the claim petition regarding the date of issuance of insurance policy. They have also not given the full particulars of the insurance policy. Further it is stated in the counter statement that the amount of compensation claimed by the claimants is excessive and the same is arbitrary and unreasonable. Further it is stated that the appellant insurance company is not liable to pay any compensation to the claimants. 4. The claim petition went for trial. On behalf of the claimants, four witnesses were examined including a eye-witness and Exts. 1 to 9 were marked. None was examined on behalf of the appellant-insurance company and no documents were exhibited in justification of its case. 4. The claim petition went for trial. On behalf of the claimants, four witnesses were examined including a eye-witness and Exts. 1 to 9 were marked. None was examined on behalf of the appellant-insurance company and no documents were exhibited in justification of its case. Learned Presiding Officer of the M. A. C. T. on appreciation of pleadings and evidence on record answered the contentious issues framed by it in favour of the claimants accepting the evidence of the claimants and held that death of Ramakanta Rout, son of Biswambar Rout in a road accident was not due to rash and negligent driving and that with a view to save the life of a calf which came across his vehicle, the vehicle dashed against a tree situated by the side of the road and he suffered severe grievous injuries and succumbed to the injuries. 5. Insofar as claim of compensation by the claimants is concerned, accepting the evidence of claimants the Tribunal held that the deceased was cultivating the land and was also working as a goldsmith earning Rs. 2000/- per month and contributing Rs. 1500/- towards family maintenance. It has also held that the deceased was the only earning member of his family and has left behind his widow and a minor children. It has also held that the monthly contribution of the deceased towards his family would be Rs. 800/- per month, and applying 16 multiplier to the case, determined the compensation at Rs. 1,53,600/- and directed the Insurance Company to deposit the same within a month failing which the compensation sum will carry 12% interest per annum from the date of filing of the petition till realization of the awarded amount, after accepting the case of the claimants that the offending vehicle is insured with the Insurance Company, Exts. 3 and 4 were marked and that the deceased had a valid driving licence. Ext. 2 is the registration certificate. The Insurance Company was directed to pay compensation of Rs. 1,53,600/- to the respondent within one month from the date of the award, failing which the award amount will carry interest @ 12% per annum from the date of filing of the petition till realization of the same. Out of the award amount a sum of Rs. 18000/- was directed to be deposited in the name of each of the claimants and a sum of Rs. Out of the award amount a sum of Rs. 18000/- was directed to be deposited in the name of each of the claimants and a sum of Rs. 30,000/- was directed to be deposited in the name of Kumari Susmita Rout in a fixed deposit for a period of six years in any nationalized bank. The remaining balance amount of Rs. 33,600/- was ordered to be paid in cash to the petitioners proportionately. 6. Aggrieved by the said judgment and award, the present appeal is filed urging that the judgment and award passed by the IIIrd M. A. C. T., Balaswore, is erroneous in law as the same is contrary to the fact and law. Therefore, the same is liable to be set aside by allowing this appeal. It is contended that determining and fastening the liability upon the Insurance Company is bad in law as the deceased had not paid the premium for accidental benefit by insuring himself. Therefore, the direction of the IIIrd M. A. C. T., Balasore to the Insurance Company to pay the compensation amount awarded in favour of the claimants is illegal, arbitrary and untenable in law. The Insurance company has produced the insurance policy under Ext. A which reveals that the premium is deposited towards public risk and hence the liability of the insurance company covers only to public risk but not death of the insured. Therefore, fastening the liability and directing to the insurance company to pay compensation awarded in favour of the claimants is wholly unjust and liable to be set aside. It is further contended that the findings of the Tribunal on the basis of the evidence on record with regard to the monthly contribution of the deceased in favour of the claimants— family at Rs. 800/- is baseless as the same is excessive and arbitrary and applying the 16 multiplier is also bad in law. Therefore, learned counsel for the insurance company prayed for allowing this appeal. 7. With reference to the rival legal contentions urged on behalf of the parties, this Court has examined the correctness of the findings and reasons recorded on the contentious issue No. 2 framed by the Tribunal on the basis of the pleadings of the parties. Therefore, learned counsel for the insurance company prayed for allowing this appeal. 7. With reference to the rival legal contentions urged on behalf of the parties, this Court has examined the correctness of the findings and reasons recorded on the contentious issue No. 2 framed by the Tribunal on the basis of the pleadings of the parties. To appreciate the legal contention urged on behalf of the insurance company, it would be necessary for this Court to refer to the written statement filed by the Insurance Company before the Tribunal. The ground that the premium is paid only against the public risk, but not against the risk of the insured is urged for the first time in this appeal. Therefore, the Insurance Company is not liable to pay compensation to the claimants is not the defence taken before the IIIrd M. A. C. T., Balasore. The defence taken by the Insurance Company before the Tribunal is that the vehicle was insured with it is not admitted by the Insurance company as the claimants did not furnish the policy number, date of issuance of the same and place of issuance and the period of issuance. It is also not indicated whether the insurance was valid at the time of accident or not. Further, it is contended that unless full and complete insurance particulars are disclosed by the claimants, the insurance company is unable to trace out the policy and cannot admit the insurance of the vehicle with it and so long as the same are not disclosed, there is no cause of action for the claimants to raise claim against the Insurance Company. Further, it is stated that the owner has not forwarded any claim intimation to the Insurance company either about the happening of any accident or any thing about the insurance of his vehicle with the Insurance Company. Further it is stated that the driver who drove the offending vehicle, had no valid driving licence to drive. Therefore, the Insurance Company seeks protection under Section 149 (2)(d) (ii) of M. V. Act, 1988. Further, it is stated that the Insurance Company will take adequate defence as provided under Sections 147 and 149 of the M. V. Act, 1988. Lastly, it is contended by the learned counsel on behalf of the insurance company that the amount of compensation as claimed in col. Further, it is stated that the Insurance Company will take adequate defence as provided under Sections 147 and 149 of the M. V. Act, 1988. Lastly, it is contended by the learned counsel on behalf of the insurance company that the amount of compensation as claimed in col. 21 by the claimants is highly excessive, illegal and arbitrary for which they are not entitled. On the basis of said pleadings, issues were framed and parties went for trial. When the Insurance Company did not take specific plea as has been urged in this appeal in the counter statement filed before the Tribunal and participated in the proceedings without producing the insurance policy, the defence plea that there is no personal risk covered in the insurance policy issued in support of the vehicle in question and therefore, the Insurance Company is not liable to pay the compensation in respect of the deceased as he has not paid the premium for his personal risk cannot be accepted by this Court at the appeal stage. In support of the said stand reliance has been placed by the learned counsel for the insurance company on a decision of the Supreme Court in the case of Oriental Insurance Co. Ltd. v. Jhuma Saha & Ors., reported in 2007 (2) TAC 12 (S. C.) : ( AIR 2007 SC 1054 ) wherein the Apex Court with reference to Sections 147(b) and 166 of M. V. Act, 1988 examined the liability of the Insurance Company in respect of death of owner-cum-driver of offending vehicle which dashed against a tree on road side and compensation was claimed by legal heirs from the Insurance Company. The Tribunal having examined the matter found that the vehicle being insured and an additional premium for death of driver or conductor having been paid, liability was covered by insurance policy. The appeal of the insurance company was dismissed by the High Court. Apex court held that additional premium was not paid in respect of the entire risk of death or bodily injury of the owner of the vehicle. Liability of the insurer company is to the extent of indemnification of insured against third person. The appeal of the insurance company was dismissed by the High Court. Apex court held that additional premium was not paid in respect of the entire risk of death or bodily injury of the owner of the vehicle. Liability of the insurer company is to the extent of indemnification of insured against third person. Thus if the insured cannot be fastened with any liability under the provisions of the M. V. Act, the question of the insurer being liable to indemnify insured does not arise and held that the fastening of the liability upon the insurance company in the above referred case to pay the compensation on the basis of the insurance policy is in contravention of Section 147(b) which covers a risk of third party only. So holding that the Apex Court set aside the judgment of the Tribunal as well as that of Gauhati High Court. The said decision is not applicable to the facts of the present case. In the case of Dhanraj v. New India Assurance Co. Ltd. & Anr., reported in 2004 (8) SCC 553 : (AIR 2004 SC 4767), the Apex Court interpreted that the policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorized representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle and held that Section 147 does not require an Insurance Company to assume risk for death or bodily injury to the owner of the vehicle. The said decision supports fastening the liability on the insurance company. 8. No evidence has been adduced by the insurance company before the Tribunal to prove the fact that the policy does not cover the risk of the insured. Therefore, at this stage, it is not open for the insurance Company to urge the factual aspect in support of legal plea urged for the first time that it is not liable to pay compensation to the claimants for the reason that the insured had not paid additional premium amount towards his risk for setting aside the judgment and award in fastening the liability upon it. 9. 9. This Court is not inclined to interfere with the impugned judgment since the trial Court has gone in to the pleadings and evidence on record and answered the contentious issues in favour of the claimants by recording its findings with reasons. Hence this appeal is devoid of any merit and is liable to be dismissed. Accordingly, the appeal is dismissed. Appeal dismissed.