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Himachal Pradesh High Court · body

2015 DIGILAW 334 (HP)

National Insurance Company v. Chandru Devi

2015-04-10

MANSOOR AHMAD MIR

body2015
Judgment : Mansoor Ahmad Mir, J. All these appeals are outcome of a common award, dated 8th March, 2010, made by the Motor Accident Claims Tribunal (1) Mandi, (hereinafter referred to as “the Tribunal”) in Claim Petition No. 110 of 2007, titled Smt. Chandru Devi & others versus Sh. Mohinder Singh & others, Claim Petition No. 118 of 2007, titled Sh. Vir Singh versus Sh. Mohinder Singh & others, Claim petition No. 132 of 2007, titled Sh. Devi Singh versus Sh. Mohinder Singh & others, Claim Petition No. 133 of 2007, titled Dev Raj versus Sh. Mohinder Singh & others and Claim petition No. 134 of 2007 titled as Brestu Ram versus Sh. Mohinder Singh & others, whereby and whereunder compensation to the tune of Rs.6,71,800/-, Rs.30,000/-, Rs.33,000/- Rs.33,000/- and Rs.29,000/- in claim petitions No. 110, 118, 132, 133 & 134 of 2007, respectively, with interest @ 7.5% per annum from the date of filing of the claim petitions till its realization, came to be awarded in favour of the claimants and the insurer-National Insurance Company Limited was saddled with the liability, hereinafter referred to as “impugned award”. 2. Alongwith these appeals, the respondents-claimants have filed Cross Objection No. 390 of 2010 in FAO No. 188 of 2010 and respondent No. 1-Vir Singh-claimant has filed Cross Objection No. 391 of 2010 in FAO No. 189 of 2010, for enhancement of the compensation. 3. The insured-owner and the driver have not questioned the impugned award, on any count. Thus, it has attained finality, so far as it relates to them. 4. The facts are not in dispute. However, I deem it proper to give brief resume of the case herein. 5. The claimants being victims of the motor vehicular accident had filed claim petitions before the Tribunal for grant of compensation, as per break-ups given in the respective claim petitions. It is averred in the claim petitions that driver, namely, Sanjiv Kumar, was driving vehicle-Mahindra Pick-Up bearing registration No. PB-11-AD- 4799, rashly and negligently, on 1.8.2007, at about 4.30 a.m., at Natwain on Mandi-Kullu road, caused the accident and Narpat Ram, Vir Singh, Devi Singh, Dev Raj and Brestu sustained injuries and Narpat Ram succumbed to the injuries. 6. The fact of the insurance is not in dispute. 6. The fact of the insurance is not in dispute. The only dispute herein is whether the insurer has to satisfy the impugned award or only to the extent, as per the insurance contract. 7. As per the insurance policy, Ext. RW-1/B on the file of MAC Petition No. 110 of 2007, the insurance contract covers only 2 + 1 persons, meaning thereby, the policy covers the risk of the driver and two passengers. The insurer has to satisfy the liability as per the terms and conditions of the insurance contract. 8. My this view is fortified by the judgment of the Apex Court in the case titled as United India Insurance Company Limited versus K.M. Poonam & others, reported in 2011 ACJ 917. It is apt to reproduce relevant portion of para 24 of the judgment herein: “24. The liability of the insurer, therefore, is confined to the number of persons covered by the insurance policy and not beyond the same. In other words, as in the present case, since the insurance policy of the owner of the vehicle covered six occupants of the vehicle in question, including the driver, the liability of the insurer would be confined to six persons only, notwithstanding the larger number of persons carried in the vehicle. Such excess number of persons would have to be treated as third parties, but since no premium had been paid in the policy for them, the insurer would not be liable to make payment of the compensation amount as far as they are concerned. However, the liability of the Insurance Company to make payment even in respect of persons not covered by the insurance policy continues under the provisions of sub-section (1) of Section 149 of the Act, as it would be entitled to recover the same if it could prove that one of the conditions of the policy had been breached by the owner of the vehicle. In the instant case, any of the persons traveling in the vehicle in excess of the permitted number of six passengers, though entitled to be compensated by the owner of the vehicle, would still be entitled to receive the compensation amount from the insurer, who could then recover it from the insured owner of the vehicle. 9. In the instant case, any of the persons traveling in the vehicle in excess of the permitted number of six passengers, though entitled to be compensated by the owner of the vehicle, would still be entitled to receive the compensation amount from the insurer, who could then recover it from the insured owner of the vehicle. 9. It is also apt to reproduce para 15 of the judgment of the Apex Court in the case titled as National Insurance Company Limited versus Anjana Shyam & others, reported in 2007 AIR SCW 5237, herein: “15. In spite of the relevant provisions of the statute, insurance still remains a contract between the owner and the insurer and the parties are governed by the terms of their contract. The statute has made insurance obligatory in public interest and by way of social security and it has also provided that the insurer would be obliged to fulfil his obligations as imposed by the contract and as overseen by the statute notwithstanding any claim he may have against the other contracting party, the owner, and meet the claims of third parties subject to the exceptions provided in Section 149(2) of the Act. But that does not mean that an insurer is bound to pay amounts outside the contract of insurance itself or in respect of persons not covered by the contract at all. In other words, the insured is covered only to the extent of the passengers permitted to be insured or directed to be insured by the statute and actually covered by the contract. The High Court has considered only the aspect whether by overloading the vehicle, the owner had put the vehicle to a use not allowed by the permit under which the vehicle is used. This aspect is different from the aspect of determining the extent of the liability of the insurance company in respect of the passengers of a stage carriage insured in terms of Section 147(1)(b)(ii) of the Act. We are of the view that the insurance company can be made liable only in respect of the number of passengers for whom insurance can be taken under the Act and for whom insurance has been taken as a fact and not in respect of the other passengers involved in the accident in a case of overloading.” 10. We are of the view that the insurance company can be made liable only in respect of the number of passengers for whom insurance can be taken under the Act and for whom insurance has been taken as a fact and not in respect of the other passengers involved in the accident in a case of overloading.” 10. Learned Counsel for the appellant-Insurance Company argued that at the best, the appellant-insurer- Insurance Company has to satisfy two awards, which are at higher side and rest of the liability is on the insured-owner. 11. Viewed thus, the total compensation amount of two awards, made in MAC Petition No. 110 of 2007, titled Smt. Chandru Devi & others versus Sh. Mohinder Singh & other and MAC Petition No. 132 of 2007, titled as Devi Singh versus Mohinder Singh & others, is to be satisfied by the insurer-Insurance Company and the compensation amount awarded in other awards, is to be satisfied by the insurer with the right of recovery. The insurer-insurance company is at liberty to move an application for recovery before the Tribunal. 12. The claimants have filed Cross Objections No. 390 of 2010 in FAO No. 188 of 2010 and Cross Objections No. 391 of 2010 in FAO No. 189 of 2010, respectively, for enhancement of the compensation. 13. I have gone through the claim petitions, evidence and the findings recorded by the Tribunal. 14. I am of the considered view that the amount of compensation awarded is just and appropriate, cannot be said to be inadequate. It is also to be kept in mind that the insurance company has to satisfy only two awards, which are at higher side and the rest are to be satisfied by the insurer at the first instance with right of recovery. Viewed thus, the claimants have not made out a case for enhancement. Accordingly, the cross objections are dismissed. 15. Having said so, the impugned awards are modified, as indicated above and the appeals and the cross-objections are disposed of. 16. The Registry is directed to release the entire compensation amount in favour of claimants, strictly as per the terms and conditions, contained in the impugned award. 17. Send down the records after placing a copy of the judgment on the file of the claim petitions.