Divisional Manager, National Insurance Co. Ltd. v. Monalita Maharana
2012-12-19
SANJU PANDA
body2012
DigiLaw.ai
JUDGMENT SANJU PANDA, J.-The Appellant-Insurance Company has filed this appeal challenging the award dated 13.1.2009 passed by the Learned 5th M.A.C.T., Nayagarh in MAC No.27 of 2005. 2. The facts leading to the present appeal are as follows: Respondent Nos.1 to 3 as claimants filed the claim application due to death of Niranjan Maharana on 3.4.2005 in a vehicular accident. The claimants are the wife & children of the deceased. The deceased along with his wife & friends while returning from Gupteswar temple in an Ambassador car bearing registration number OR-03-A-5300, the driver of the vehicle lost control over it & in the process the accident took place with a Lorry. The car was seriously damaged. The driver & the occupants of the vehicle were also seriously injured. However, the deceased succumbed to his injuries while shifting to a nearby hospital. Accordingly, Junagarh P.S. Case No.35 of 2005 was registered for alleged offence under Sections 279/337/304-A IPC. After investigation, charge sheet was filed. The post-mortem over the dead body was held on the same day. The claimants stated that the deceased was working as a Diploma Civil Engineer under Lower Sukta P.R.C.C.B Division, Bolangir & was getting Rs.10,000 per month. He was aged about 35 years old on the date of occurrence. They claimed Rs.20,000 towards funeral expenses & Rs.2,00,000/- for loss of compassion. Accordingly, they claimed a compensation of Rs.28,00,000. The owner of the vehicle was set ex parte. However, the Appellant-insurer filed its written statement challenging the maintainability & cause of action & also took the plea that the driver of the offending vehicle had no valid & effective insurance policy. It had also taken a plea that the amount claimed by the claimants is exorbitant & unreasonable. 2. In support of the case, the claimants examined two witnesses including the wife of the deceased who was an-eye witness to the occurrence. The certified copies of the FIR, charge sheet, postmortem report, service book of the deceased, etc. were marked Exts.1 to 7. The Appellant-insurance company examined only one witness & also filed documentary evidence, i.e., copy of the insurance policy valid from 12.3.05 to 11.3.2006 which was marked as Ext. A. 3.
The certified copies of the FIR, charge sheet, postmortem report, service book of the deceased, etc. were marked Exts.1 to 7. The Appellant-insurance company examined only one witness & also filed documentary evidence, i.e., copy of the insurance policy valid from 12.3.05 to 11.3.2006 which was marked as Ext. A. 3. On analyzing the evidence on record, the Tribunal recorded the finding that due to rash & negligent driving of the driver of the offending vehicle, the accident took place & deceased Niranjan Maharana succumbed to his injuries. The offending vehicle had a valid insurance policy covering the date of accident. In view of Section 146 of the M.V. Act, 1988, the offending vehicle had a valid insurance policy. Accordingly, the insurance policy covered against third party risk & the policy Ext. A does not limit the liability of the insurance company for the death of the deceased as provided under Section 147 of the M.V. Act. The deceased was aged about 38 years as per the service book. Accordingly, the Tribunal applying 16 multiplier assessed the compensation at Rs.13,53,500 in toto & directed that the Insurance Company is liable to pay the compensation. 4. Learned Counsel for the Appellant-Insurance Company submitted that the offending vehicle is a private car & as per the insurance policy, the liability of the Insurance Company is limited to Rs.50,000 only since the vehicle was insured under the contractual policy. The risk of occupants of the car can be covered on payment of additional premium. Therefore, the impugned award is liable to be set aside so far as the payment of entire compensation by the Insurance Company is concerned. 5. Learned Counsel for the Respondent-claimants, however, supporting the impugned award submitted that the Tribunal while saddling the liability on the Insurance Company has taken into consideration the evidence available on record. He further submitted that the Tribunal, taking into consideration the insurance policy which was exhibited by it covering the date of accident, has rightly fixed the liability on the Insurance Company. Therefore, the impugned award need not be interfered with. 6. This Court has considered the rival submissions of both the parties & taken into consideration the proviso to Sub-Section (2) of Section 147 of the New Act, 1988 which does not limit the liability of Insurance Companies for payment of compensation.
Therefore, the impugned award need not be interfered with. 6. This Court has considered the rival submissions of both the parties & taken into consideration the proviso to Sub-Section (2) of Section 147 of the New Act, 1988 which does not limit the liability of Insurance Companies for payment of compensation. The said provision directs that a statutory policy, which was issued by an authorized insurer & insures the person or classes of persons specified in the policy to the extent specified in sub-Section (2). On a plain reading of sub-Section (2) of the said Section reveals that a statutory policy covers any liability which the insured person may incur in respect of the death of or bodily injury to any person, including 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 in a public place & also against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place. 7. The Apex Court in the case of National Insurance Company Ltd. v. Behari Lal & others reported in AIR 2000 SC 3053 held that a statutory policy shall cover the amount of liability incurred except in respect of damage to any property of a third party for which a limit of rupees six thousand is specified. On a careful reading of the proviso to Sub-Section (2) discloses that any policy of insurance, issued with any limited liability & enforce immediately before the commencement of the New Act, shall continue to be effective for a period of four months after commencement of the new Act or till the date of expiry of such a policy, whichever is earlier. 8.
8. Similarly, in the case of United India Insurance Company Limited v. Alka Mangla & others reported in AIR 2008 Delhi 201, the Delhi High Court, while dealing with the meaning of 'third party', held that whether a Gratuitous Passenger travelling in a private car would fall within the meaning of 'third party' & covered by 'Statutory Policy within the meaning of S.147 of the Act is no more debatable, but in the instant case in contra distinction to this, on perusal of the policy it becomes manifest that the policy in question taken out by the insured & issued by the Appellant is a 'PRIVATE CAR PACKAGE POLICY' & as notified by the Tariff Advisory Committee, with effect from 1.7.2002, the terms & conditions of a private car package policy mandates as under: "SECTION II - LIABILITY TO THIRD PARTIES 1. Subject to the limits of liability as laid down in the schedule hereto the company will indemnify the insured in the event of an accident caused by or arising out of the use of the vehicle against all sums which the insured shall become legally liable to pay in respect of:- i. death of or bodily injury to any person including occupants carried in the vehicle (provided such occupants are not carried for hire or reward) but except so far as it is necessary to meet the requirements of Motor Vehicles Act, the Company shall not be liable where such death or injury arises out of & in the course of the employment of such person by the insured. ii) Damage to property other than property belonging to the insured or held in trust or in the custody or control of the insured. The law pertaining to the "Statutory ! Act Policy" cannot be same for the "Private Car Package Policy". Where the policy is a statutory policy or an Act only policy, a gratuitous passenger in a private vehicle would not be covered for a bodily injury or death under the policy of insurance. But, nothing prevents the insurance company from issuing a wider coverage i.e. assuming a greater risk liability, As in the instant case, where the policy is a package policy for private cars, terms of the policy & the applicable conditions as notified by the Tariff advisory Committee would have to be looked into to determine the risk liability assumed by the insurer.
It is further held that there is no statutory limit of liability provided under the M.V Act, 1988 unlike the old Act of 1939. 9. In the case of Gyan Singh Babaji v. Jitendra Nath Bisoi & another reported in 2000 (2) TAC 318 (Ori.) wherein a Division Bench of this Court held that 'third party risks' Road Traffic Act, 1936 (20 & 20 Geo.5.40, 5.C, 43-S.35) connotes that the insurer is one party to the contract, that the policy holder is another party, & the claims made by others in respect of the negligent use of the car, may be naturally described as claims by third party. 10. In the case of New India Assurance Co. Ltd. v. Sujit Barisal & others reported in 2007 (Supp.-I) OLR 94, this Court has held that the vehicle was being used for 'special domestic or pleasure purposes' & not for any prohibited purpose. The claimants, who were the occupants of the vehicle in question, are covered under the term 'any person' as stipulated under Section 147 of the Act which mandates a statutory coverage of all the passengers. 11. In view of the above settled position of law & taking into consideration the fact that the deceased was a third party & the claimants being his legal heirs are liable to be compensated & since there is no error apparent on the face of the impugned order, this Court is not inclined to interfere with the same. Accordingly, the appeal is dismissed.