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2013 DIGILAW 214 (CHH)

ICICI LOMBARD GENERAL INSURANCE v. SANTOSH DHRUV

2013-07-17

N.K.Agarwal

body2013
AWARD 1. M.A.(C) No. 602 of 2009 preferred by the I.C.I.C.I. Lombard General Insurance Company Limited and M.A.(C) No. 725 of 2009 preferred by the claimants against the award dated 22.01.2009 passed by the 6th Additional Motor Accidents Claims Tribunal, Bilaspur in claim case No. 65/2008 are being disposed of by this common award/order. 2. Facts, in brief, necessary for disposal of these appeals are as under : i. On 24.10.2007, Maruti Van (Private Car) bearing registration No.C.G.12/D/0428, being driven rashly and negligently by Narottam Singh, owned by Radheshyam Dubey and insured by the I.C.I.C.I. Lombard General Insurance Company Limited met with an accident and Smt. Usha Dhruv, an occupant of the Car, suffered injuries in the accident. She later on succumbed thereto. ii. Husband and minor son of deceased - Smt. Usha Dhruv preferred claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short 'the Act') claiming compensation to the tune of Rs. 20,18,272/-. According to the claimants, deceased Smt. Usha Dhruv was Shiksha Karmi. iii. The defence taken by the appellant/insurance company was that it had covered the risk of unnamed passenger to the extent of Rs. 1,00,000/- only by charging extra premium of Rs. 50/- per passenger. iv. The Tribunal awarded a sum of Rs. 3,25,000/- as compensation along with interest @ 9% per annum from the date of claim application till its actual payment holding the appellant/insurance company as well as driver and/or owner of the vehicle jointly and severally liable for payment of compensation. v. Feeling aggrieved by the entire liability, the insurance company has preferred the appeal whereas dissatisfied with the amount of compensation awarded by the Tribunal, the claimants have also preferred an appeal. 3. Shri Amrito Das, learned counsel appearing for the appellant/insurance company, by referring to general regulation 36 of the India Motor Tariff and IMT - 16, would submit the policy in question is a liability only policy and is not a package policy. Apart from third party risk, the appellant/insurance company has also assumed the risk of unnamed passenger, for which, under the regulation, the maximum liability of the appellant/ insurance company is Rs. 2,00,000/-, and therefore, the Tribunal has erred in holding the appellant/insurance company liable for payment of entire amount of award. 4. Per contra, Shri Goutam Khetrapal, learned counsel appearing for the appellants/ claimants, would submit the premium of Rs. 2,00,000/-, and therefore, the Tribunal has erred in holding the appellant/insurance company liable for payment of entire amount of award. 4. Per contra, Shri Goutam Khetrapal, learned counsel appearing for the appellants/ claimants, would submit the premium of Rs. 250/- has been charged by the insurance company for an unnamed occupant of the vehicle without specifying its limit of liability; as per the terms and conditions annexed with the schedule of the policy, the policy was Private Car Package policy covering the risk of occupant of Car, and therefore, the Tribunal has rightly fastened the liability of payment of compensation upon the insurance company. It was further contended, even if the salary certificate is disbelieved for want of its legal proof, the Tribunal should have awarded compensation by applying the multiplier method and by taking into consideration a reasonable income of the deceased, and therefore, the amount of compensation of Rs. 3,25,000/- also deserves to be suitably enhanced. 5. I have heard learned counsel for the parties and perused the record of the Tribunal including award impugned. 6. The following questions fall for consideration of this Court: 1. Whether under the policy Ex.N.A.1, the liability of the insurance company is unlimited or limited to the extent of Rs. 2,00,000/- only for the death of an occupant of the Car? 2. Whether or not the amount of compensation of Rs. 3,25,000/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the case? 7. A bare perusal of the policy (Ex.N.A.1) would reveal, though the schedule of the policy is title as private car liability only policy but the terms and conditions annexed therewith are of package policy. The insurance company has further charged Rs. 250/- covering the risk of unnamed passenger without specifying any limit of liability. The terms and conditions of the insurance policy explicitly covers the death of or injury to an occupant of the Car. The insurance company has further charged Rs. 250/- covering the risk of unnamed passenger without specifying any limit of liability. The terms and conditions of the insurance policy explicitly covers the death of or injury to an occupant of the Car. The relevant clause of the insurance policy is reproduced hereunder: "(1) Subject to the limits of liability as laid down in the Schedule thereto, the company will indemnify the insured in the event of accident caused by or arising out of the use of the insured vehicle against all sums which the insured shall become legally liable to pay in respect- (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 and in the course of employment of such person by the insured." 8. The insurance policy (Ex.N.A.1), when examined in the light of above facts, it would be clear as crystal that the policy is package policy for all practical purposes, which covers unlimited risk of an occupant of a Car. 9. The Supreme Court, in the case of Amritlal Sood and another Vs. Kaushalya devi Thapar and others (1998) 3 SCC 744 , while analyzing terms and conditions of the policy (Section (II)(1)(a), has held, the expression "any person" would undoubtedly include an occupant of the car, who is gratuitously travelling in the Car and observed in para - 8 as under : "8. Thus under Section II(1)(a) of the policy the insurer has agreed to indemnify the insured against all sums which the insured shall become legally liable to pay in respect of death of or bodily injury to "any person". The expression "any person" would undoubtedly include an occupant of the car who is gratuitously travelling in the car. The remaining part of clause (a) relates to cases of death or injury arising out of and in the course of employment of such person by the insured. In such cases the liability of the insurer is only to the extent necessary to meet the requirements of Section 95 of the Act. Insofar as gratuitous passengers are concerned there is no limitation in the policy as such. In such cases the liability of the insurer is only to the extent necessary to meet the requirements of Section 95 of the Act. Insofar as gratuitous passengers are concerned there is no limitation in the policy as such. Hence under the terms of the policy, the insurer is liable to satisfy the award passed in favour of the claimant. We are unable to agree with the view expressed by the High Court in this case as the terms of the policy are unambiguous." 10. Admittedly, a package policy covers unlimited liability of an occupant of a Car. As held earlier, the policy in question, for all practical purposes, is a package policy covering the unlimited risk of an occupant of Car, for that the insurance company has also charged premium of Rs. 250/-. In view of above, the argument advanced by Shri Amrito Das has no force. However, if for any reason the insurance company feels its liability as limited liability, then it is free to sue insured. 11. Now, I shall examine the adequacy or otherwise of the amount of compensation awarded by the Tribunal. 12. It is not much disputed that the income of the deceased has not been established by the claimants by leading legal evidence. However, the Tribunal should have assessed the amount of compensation by taking into consideration at least the income of deceased as Rs. 3,000/- per month and by applying the multiplier method. 13. The deceased was aged about 30 years. If the income of deceased is taken as Rs. 3,000/- per month and Rs. 36,000/- per annum and after deducting 1/3rd of it towards personal and living expenses of the deceased, the claimants annual dependency would be Rs. 24,000/- per annum. In view of judgment of Supreme Court in the case of Sarla Verma (Smt) and others Vs. Delhi Transport Corporation and another (2009) 6 SCC 121, wherein multiplier of 17 has been prescribed for the age group between 26 to 30 years. By applying the multiplier of 17, as the deceased was 30 years, the claimants would become entitled for sum of Rs. 4,08,000/-. The claimants are further entitled for Rs. 15,000/- on other heads, i.e. Rs. 5000/- each for loss of consortium, loss of estate and for funeral expenses and thus the claimants are entitled for a total sum of Rs. 4,23,000/-. 14. 4,08,000/-. The claimants are further entitled for Rs. 15,000/- on other heads, i.e. Rs. 5000/- each for loss of consortium, loss of estate and for funeral expenses and thus the claimants are entitled for a total sum of Rs. 4,23,000/-. 14. In view of above, the Tribunal has certainly erred in awarding low compensation of Rs. 3,25,000/- to the claimants. 15. For the reasons mentioned herein above, Misc. Appeal (C) No. 602/2009 preferred by the insurance company is dismissed whereas M.A. (C) No. 725/2009 preferred by the claimants are allowed in part. The amount of compensation of Rs. 3,25,000/- awarded by the Tribunal is enhanced to Rs. 4,23,000/-, i.e., Rs. 98,000/- over and above the amount of compensation awarded by the Tribunal. The enhanced amount of compensation of Rs. 98,000/- shall carry interest @ 6% per annum from the date of application till its actual payment. The award is modified to the extent above. Rest of the conditions shall remain intact. 16. Appellant and Respondent No.3/I.C.I.C.I. Lombard General Insurance Company Limited is granted 2 months time for depositing the enhanced amount of Rs. 98,000/- along with interest before the Claims Tribunal from the date of passing of the award. 17. No order as to costs. Award Modified.