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2016 DIGILAW 2212 (BOM)

ORIENTAL INSURANCE CO. LTD. v. ENAYAT KHAN

2016-12-15

C.V.BHADANG

body2016
JUDGMENT : C.V. Bhadang, J. 1. The appellant Insurance Company is challenging the judgment and award dated 21/10/2008, passed by the Motor Accident Claims Tribunal at Margao (Tribunal, for short) in Claims Petition No. 313/2006. By the impugned judgment, the Tribunal has awarded a compensation of Rs. 3,22,000/- in favour of respondent Nos. 1 and 2 (respondent no.2 since deceased). 2. Now deceased Mushtaq Sudrudin Khan was employed by the third respondent as a driver of a vehicle, bearing No. GA-02-J-7351. The deceased was holding a valid driving licence. On 08/03/2002, dead body of Mushtaq Khan was found lying under the Railway Bridge at Pissornem. During the course of investigation, it transpired that Mushtaq had died due to strangulation by some unknown persons. It also transpired that he was murdered on way, with the intention of committing theft of the vehicle. The said vehicle was covered by a policy of insurance by the appellant herein, which was valid on 08/03/2002. 3. Respondent Nos. 1 and 2 filed a petition under the Motor Vehicles Act (the Act, for short), claiming a compensation of Rs. 4 Lakhs before the Claims Tribunal. 4. The petition was contested by the appellant and the other respondents. On the basis of the rival pleadings, the Tribunal framed the following issues : "1. Whether the applicants prove that the death of deceased had occurred in the course of driving vehicle No. GA-02-7351 and in the course of employment of respondent ? 2. Whether the applicants prove that they are entitled for total compensation of Rs. 4,00,000/- ? 3. Whether the respondent no.1 and 2 prove that this Tribunal has no jurisdiction to try and entertain the present petition ? 4. Whether the respondent no.2 proves that applicants have already filed their claim for compensation under Workmen's Compensation Act and hence, this petition deserves to be dismissed ?" 5. The first respondent examined herself while the third respondent examined himself in his defence. The Tribunal answered the issue no.1 in the affirmative while issue Nos. 3 and 4 in the negative and proceeded to grant compensation of Rs. 3,22,000 along with interest. Feeling aggrieved, the present appeal is filed. 6. I have heard Shri Afonso, the learned Counsel for the appellant, Shri Mulgaonkar, the learned Counsel for the first respondent and Shri Kakodkar, the learned Counsel for the third respondent. 3 and 4 in the negative and proceeded to grant compensation of Rs. 3,22,000 along with interest. Feeling aggrieved, the present appeal is filed. 6. I have heard Shri Afonso, the learned Counsel for the appellant, Shri Mulgaonkar, the learned Counsel for the first respondent and Shri Kakodkar, the learned Counsel for the third respondent. With the assistance of the learned Counsel for the parties, I have perused the record and gone through the impugned judgment. 7. On behalf of the appellant, it is contended that the Tribunal, having come to the conclusion that the death of the deceased had occurred in the course of the employment with the third respondent, no compensation could have been granted under the Motor Vehicles Act. It is pointed out that the claimants did not approach the Commissioner under the Employees Compensation Act. Secondly, it is contended that the liability of the driver was not covered under the policy of Insurance and thus, the appellant could not be made liable. Except this, no other grounds are urged. 8. The learned Counsel for respondent Nos. 1 and 3 have supported the impugned judgment. On behalf of respondents, reliance is placed on the decision of Hon'ble Supreme Court in the case of Rita Devi and others v. New India Assurance Co.Ltd, [ (2000)5 SCC 113 ], in order to submit that in similar facts, the Hon'ble Apex Court has held that a petition would lie before the Claims Tribunal under the Motor Vehicles Act. It is pointed out that the policy of insurance was a comprehensive policy, covering the risk of the driver. It is further pointed out that the Insurance Company had recovered an additional premium of Rs. 15/- towards the liability for a paid driver. Thus, this being a case of special contract, the Insurance Company cannot abdicate its liability, on the ground of non-coverage of risk of the driver. Reliance is placed on the decision of the Supreme Court in the case of National Insurance Co. Ltd. v. Prembai Patel and others; [ (2005)6 SCC 172 ], in order to submit that the appellant would be liable to pay the compensation. 9. I have carefully considered the rival circumstances and the submissions made. 10. Reliance is placed on the decision of the Supreme Court in the case of National Insurance Co. Ltd. v. Prembai Patel and others; [ (2005)6 SCC 172 ], in order to submit that the appellant would be liable to pay the compensation. 9. I have carefully considered the rival circumstances and the submissions made. 10. In the case of Rita Devi (supra), a driver of an Auto Rikshaw was killed by certain persons, who had hired the Auto Rikshaw, with the object to steal the same. It was held that it was the case of 'accidental murder' and legal representatives of the deceased were held liable for compensation for his death from the owner and consequently, from the Insurer of the motor vehicle. The following observations in paras 14 and 18 of the judgment, are apposite : "14. Applying the principles laid down in the above cases to the facts of the case in hand, we find that the deceased, a driver of the auto rickshaw, was duty bound to have accepted the demand of fare paying passengers to transport them to the place of their destination. During the course of this duty, if the passengers had decided to commit an act of felony of stealing the auto rickshaw and in the course of achieving the said object of stealing the auto rickshaw, they had to eliminate the driver of the auto rickshaw then it cannot but be said that the death so caused to the driver of the auto rickshaw was an accidental murder. The stealing of the auto rickshaw was the object of the felony and the murder that was caused in the said process of stealing the auto rickshaw is only incidental to the act of stealing of the auto rickshaw. Therefore, it has to be said that on the facts and circumstances of this case the death of the deceased (Dasarath Singh) was caused accidentally in the process of committing the theft of the auto rickshaw. 18. In the instant case, as we have noticed the facts, we have no hesitation in coming to the conclusion that the murder of the deceased (Dasarath Singh) was due to an accident arising out of the use of motor vehicle. 18. In the instant case, as we have noticed the facts, we have no hesitation in coming to the conclusion that the murder of the deceased (Dasarath Singh) was due to an accident arising out of the use of motor vehicle. Therefore, the trial court rightly came to the conclusion that the claimants were entitled for compensation as claimed by them and the High Court was wrong in coming to the conclusion that the death of Dasarath Singh was not caused by an accident involving the use of motor vehicle." 11. The present case has a striking resemblance with the facts obtaining in the case of Rita Devi (supra) and thus, it cannot be accepted that the petition under the Motor Vehicles Act, was not maintainable. 12. This takes me to the ground of non-coverage of the risk of the driver under the Insurance Policy. A copy of the Certificate-cum-Policy of Insurance produced, shows that the Insurance Company has recovered Rs. 15/- as an additional premium towards the liability for a paid driver. The policy was a comprehensive policy. It can, thus, be seen that this is a case where the appellant, on acceptance of additional premium, had covered the risk of the driver of the vehicle. It is well settled that the liability of the Insurance Company can be either statutory or contractual. While the statutory liability would confirm to the provisions of the Act, nothing prevents the parties from creating an additional liability to cover wider risk, on the Insurance Company, accepting an additional premium. In this regard, a useful reference can be made to the Constitution Bench Judgment of the Hon'ble Supreme Court in the case of New India Assurance Co. Ltd. v. C.M. Jaya; (2002) 2 SCC 278 and the decision in the case of Prembai Patel (supra). Thus, it is not possible to accept that the Insurance Policy did not cover the risk of the deceased, who was working as a driver of the vehicle. 13. In the result, no case for interference is made out. The appeal is without any merit. Accordingly, following order is passed : ORDER (i) The appeal is dismissed, with no order as to costs. (ii) The amount deposited before this Court along with interest, if any, shall be paid to respondent no.1, on proper identification.