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Uttarakhand High Court · body

2016 DIGILAW 253 (UTT)

National Insurance Co. Ltd. v. Amar Singh

2016-06-14

SERVESH KUMAR GUPTA

body2016
JUDGMENT : Servesh Kumar Gupta, J. 1. Having heard the rival contentions, it transpires that the accident occurred on 28.1.2010, when the owner-cum-driver Mr. Amar Singh, in order to save the accident, likely to happen by a cow coming from in front, skidded off from the main road and fell in the agricultural field below. He suffered fracture in his leg besides other injuries on his body and remained admitted for a considerable time in the hospital and somehow, could recover making his living workable. The Tribunal has awarded the compensation to the tune of Rs.50,389/- along with 6% interest for all the expenses incurred by him during hospitalization and treatment nay the agony suffered by him on account of loss a normal functioning leg. 2. Learned counsel on behalf of the Insurance Company has resisted this award mainly on two grounds. 3. The first one is that Section 166 of the Motor Vehicles Act pre-supposes the rash and negligence while awarding the compensation; since Mr. Amar Singh himself was driving the car owned by him which skidded off from the road and fell down in the agricultural field down, then he cannot be awarded the compensation for his own wrong doing. This contention is wholly unsubstantial for the reason that, howsoever, a driver of a particular vehicle could have been driving skillfully there is no measurement of perfection of such driving and still the vehicle, in question, could have been driven with more care and caution in order to avert the accident, in question. It is difficult to assume that any person driving the vehicle will deliberately and intentionally skid off from the road in order to make his vehicle fell down. So, the element of rash and negligence in such type of accidents always remains there, howsoever, little it may be. 4. Another contention of learned counsel for the Insurance Company that is the victim was not a third party but only the contracting party and Chapter 11 of the Motor Vehicles Act does contemplate only about the third party. I feel that this Chapter has no application in the matter because Section 166 of the Act ponders about the persons who can file the petition under this Section and such persons include those who sustain injuries or even the owner of the property can present any such petition. 5. I feel that this Chapter has no application in the matter because Section 166 of the Act ponders about the persons who can file the petition under this Section and such persons include those who sustain injuries or even the owner of the property can present any such petition. 5. Reliance was placed by the appellant on the precedents of the Apex Court in the case of Oriental Insurance Company Ltd. Vs. Jhuma Saha (Smt.) and Others reported in (2007) 9 SCC 263 and drawn the attention of this Court towards paragraph nos.10 and 11 of such judgment. 6. To my mind, the law laid down by the Hon’ble Apex Court is very clear where it was held that the liability of the Insurance Company is to the extent of indemnification of the insured against the respondent or an injured person, a third person or in respect of damages of property. Thus, if the insured cannot be fastened with any liability under the provisions of the Motor Vehicles Act, the question of the insurer being liable to indemnify the insured, therefore, does not arise. 7. This law was laid down by the Hon’ble Apex Court where the Insurance Policy was in the nature of a third party and the law was not laid down in those matters where the policy was comprehensive in nature or it was a package policy. Rather the law dealing with the same eventuality has been laid down by the Hon’ble Apex Court in the case of National Insurance Company Ltd. vs. Balakrishnan and another reported in (2013) 1 SCC 731 as under:- An “Act policy” stands on a different footing from a “comprehensive/package policy”. As the Insurance Regulatory and Development Authority (IRDA), which is presently the statutory regulatory authority, has commanded the insurance companies that a “comprehensive /package policy” covers the liability of the insurer for payment of compensation to the occupant in a motor. 8. In the case in hand, the policy was comprehensive in nature, as has been indicated above, and it was the package policy (private vehicle) where the Insurance Company has charged Rs.100/- as premium towards the compulsory personal accident. 9. So, in view of what has been set forth above, I find no force in this appeal and it is hereby dismissed. 10. The statutory amount has already been remitted to the Tribunal concerned. 9. So, in view of what has been set forth above, I find no force in this appeal and it is hereby dismissed. 10. The statutory amount has already been remitted to the Tribunal concerned. Let the payment of compensation be made to the claimant forthwith. 11. LCR be also sent back.