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2016 DIGILAW 214 (JK)

United India Ins. Co. Ltd. v. Pushpa Devi & ors.

2016-04-25

RAMALINGAM SUDHAKAR

body2016
JUDGMENT 1. 1st respondent-Pushpa Devi wife of deceased Kamal Singh and 2nd to 4th respondents-sons of deceased claimed before Tribunal a sum of Rs. 13,60,000/- from the owner of the vehicle-Ved Parkash and the United India Insurance Company Ltd-the present petitioner. The accident happened on 17.07.2000. The deceased Kamal Singh was traveling as pillion rider on a two wheeler bearing registration Number JK14/5652 being driven by Ved Parkash. The vehicle met with an accident near Birwan Bridge National Highway on account of rash and negligent driving by said Ved Parkash. He overtook a bus and while doing same collided with oncoming vehicle. The driver escaped from the vehicle by jumping out however the pillion rider died in the accident. 2. In support of the claim five issues have been framed which reads as follows: 1. Whether on 17.07.2000 deceased Kamal Singh was accompanying the petitioner No. 1 on his scooter bearing No. JK14/5652 as a pillion rider which scooter was being driven by respondent No. 1 rashly and negligently as a result of which while reaching Birwan Bridge Udhampur the scooterist met with accident in consequence of which deceased died on spot? OPP 2. Whether the deceased aged 44 years was drawing a salary of Rs. 5228/- per month and had additional income of Rs. 2000/- out of agricultural work and this amount was being spent by him on the welfare of his family members? OPP 3. Whether the petitioners are entitled to total compensation of Rs. 13.60 lakh, if so on what counts? OPP 4. Whether petitioners are not entitled to any compensation as the deceased was a pillion rider and does not fall third party category as such Insurance Co. is not liable to pay any compensation? OPR2 5. Whether respondent No. 1 was not holding a valid/L at the time of accident as such respondent No. 2 is not liable to pay any compensation to the petitioners? OPR2 1st claimant-Pushpa Devi was examined as PW-1. Pw-Subash Kumar, employee of the Electricity Office at Garhi where deceased was working was examined as PW-2 and he stated about the income of the deceased. Pw-3-Mool Raj is an eyewitness. Pw-4-Romesh Kumar is also an eyewitness. First Information Report (FIR) was marked as part of documents and therefore, Tribunal came to hold that the deceased died in an accident which happened on 17.07.2000 and held the issue in favour of petitioners. Pw-3-Mool Raj is an eyewitness. Pw-4-Romesh Kumar is also an eyewitness. First Information Report (FIR) was marked as part of documents and therefore, Tribunal came to hold that the deceased died in an accident which happened on 17.07.2000 and held the issue in favour of petitioners. On issue Nos. 2 and 3, the Tribunal fixed the income at Rs.5228/- per month deducting 1/3rd as the personal expenses of the deceased, the net loss of income as Rs.41824/- round to Rs.41830/-. Adopting a multiplier of 8, fixed the compensation at Rs.334640/-. For love and affection, Rs. 16,000/- was granted and total is Rs. 3,49,464/-. Issue No. 4 is the issued that was contested by Insurance Company on the ground that Policy does not cover claim of the death of pillion rider for which the Policy has not been subsequently endorsed. The Insurance Company itself admits that the Police cover the 3rd party but the pillion rider is not covered in the Policy. It is however stated in the policy that the seating capacity of the vehicle insured is 1+1 which can be any passenger and the same is recorded by the Tribunal also. The plea of Insurance Company is that it is not liable to cover the claim of pillion rider who was gratuitous passenger was also rejected by the Tribunal. 5th Issue was not contested. Therefore, Award came to be passed against which present appeal has been preferred. 3. Primarily, it is contented by the appellant-Insurance Company that there is no serious dispute on the quantum of compensation but their plea is that the Policy does not cover pillion rider-a gratuitous person. This contention can be considered if the Tribunal has not recorded the finding, though there is no specific mention about covering of pillion rider but it mentions any passenger and, therefore, it includes pillion rider. 4. Be that as it may, despite a reference to the larger Bench in case titled National Insurance Company Limited v. Parvathenin SLP (c)... CC No. 10993 of 2009 564, on compensation to be paid in respect of gratuitous passenger not covered by policy, the Supreme Court of India in the later decision delivered in 2013 ACH 554 titled Manager, National Insurance Co. Ltd. v. Saju P. Paul and another came to hold in paragraph 25 as under: “25. CC No. 10993 of 2009 564, on compensation to be paid in respect of gratuitous passenger not covered by policy, the Supreme Court of India in the later decision delivered in 2013 ACH 554 titled Manager, National Insurance Co. Ltd. v. Saju P. Paul and another came to hold in paragraph 25 as under: “25. The pendency of consideration of the above questions by a larger Bench does not mean that the course that was followed in Baljit Kaur 2004 ACJ 428 (SC) and Challa Bharathamma, 2004 ACJ 2094 (SC), should not be followed, more so in a peculiar fact situation of this case. In the present case, the accident occurred in 1993. At that time, claimant was 28 years old. He is now about 48 years. Claimant was a driver on heavy vehicle and due to the accident he has been rendered permanently disabled. He has not been able to get compensation so far due to stay order passed by this Court. He cannot be compelled to struggle further for recovery of the amount. Insurance company has already deposited the entire awarded amount pursuant to the order of this Court passed on 01.08.2011 and the said amount has been invested in a fixed deposit account. Having regard to these peculiar facts of the case in hand, we are satisfied that the claimant (Respondent No. 1) may be allowed to withdraw the amount deposited by the insurance company before this Court along with accrued interest. The insurance company (appellant) thereafter may recover the amount so paid from the owner (Respondent No. 2 herein). The recovery of the amount by the insurance company from the owner shall be made by following the procedure as laid down by this Court in the case of Challa Bharathamma 2004 ACJ 2094.” 4.1 In this view of the matter, I am inclined to allow the appeal of the insurance in that the award may be recovered from the owner of the vehicle in the manner prescribed in the said decision after the amount of compensation is paid over to the claimants. 5. Appeal is allowed as above.