Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 3503 (ALL)

SHRIRAM GENERAL INSURANCE CO. LTD. v. SANGEETA

2016-10-20

K.J.THAKER, SUDHIR AGARWAL

body2016
JUDGMENT By the Court.—Heard Shri Pawan Kumar Singh, learned counsel for the appellant and Shri Ram Singh, learned counsel for respondent. 2. The brief facts are that the claimants respondent filed claim petition before Motor Accident Claim Tribunal (hereinafter referred to as ‘Tribunal’) being M.A.C.P No. 597 of 2012 for the death of Ashok Kumar who died in the motor accident on 2.7.2012. Tribunal after going through the entire record, granted compensation of Rs. 6,63,000/- with interest @ 7% in favour of the claimant respondent. 3. The facts are that the deceased was a cleaner on the bus bearing No. UP-70-BT-5435 when he was going by the said bus, a truck bearing No. UP-70-BT-8548 met with an accident. As far as the claimants are concerned, it is a case of composite negligence. Insurance Company of both the vehicles is appellant herein. Tribunal before whom, matter was filed held that driver of Truck No. UP-70 BT 8548 was negligent. 4. The issue of negligence has not been argued before us. 5. In a recent judgment Apex Court in UPSRTC v. Km. Mamta and others, AIR 2016 SCC 948, held that Appellate Court should decide on every issue and therefore, we propose to decide the issues which have been raised in this appeal. 6. The main submission is that quantum is on a higher side. Insurance company was not supposed to be held liable as the policy did not cover death of cleaner. In UPSRTC v. Km.Mamta (Supra), paragraphs 24 and 27, Court observed as under: “24. An appeal under Section 173 of the M.V.Act is essentially in the nature of first appeal alike Section 96 of the Code and, therefore, the High Court is equally under legal obligation to decide all issues arising in the case both on facts and law after appreciating the entire evidence. [See National Insurance Company Ltd. v. Naresh Kumar and others, (2000) 10 SCC 198 and State of Punjab and another v. Navdeep Kuur and others, (2004) 13 SCC 680 ]. 27. As observed supra, as a first appellate Court, it was the duty of the High Court to have decided the appeal keeping in view the powers conferred on it by the statute. 27. As observed supra, as a first appellate Court, it was the duty of the High Court to have decided the appeal keeping in view the powers conferred on it by the statute. The impugned judgment also does not, in our opinion, satisfy the requirements of Order XX, Rule 4(2) read with Order XLI, Rule 31 of the Code which requires that judgment shall contain a concise statement of the case, points for determination, decisions thereon and the reasons. it is for this reason, we are unable to uphold the impugned judgment of the High Court.” 7. Appellant - Insurance Company felt aggrieved by award, and has submitted that deceased was a cleaner and not driver hence not covered by the policy. It is submitted that Apex Court in Reshma Kumari and others v. Madan Mohan and another, (2013) 9 SCC 65 and Sarla Verma v. DTC, (2009) 6 SCC 121 , has held that where a person has a job and is above the age of 50 years and if he was a self employed person, no additional sum be awarded towards future prospectus and has therefore, submitted that the Tribunal has erred in awarding additional amount which is contrary to law. 8. Therefore, we decide the issue whether the deceased who was a cleaner was covered by the policy or not and whether the Insurance Company could be held liable to honour the award. This aspect was not even canvassed before the learned Tribunal. However, as it is raised before us, we decide the same. 9. The Tribunal while deciding the issue about liability has held that the Insurance with which the vehicle was insured namely U.P-70-BT 5435, was driven as per the policy conditions. The Insurance Company has not examined anybody to prove breach of policy conditions. It was no where submitted that the cleaner was not covered by the policy. The driver of the vehicle had a proper driving license. Section 147 of the Motor Vehicle Act reads as follows: “147. The Insurance Company has not examined anybody to prove breach of policy conditions. It was no where submitted that the cleaner was not covered by the policy. The driver of the vehicle had a proper driving license. Section 147 of the Motor Vehicle Act reads as follows: “147. Requirements of policies and limits of liability.— (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which— (a) is issued by a person who is an authorised insurer; and (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)— (i) against any liability which may be incurred by him in respect of the death of or bodily 27 [injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place: Provided that a policy shall not be required— (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen’s Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee— (a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability. Explanation.—For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place. (2)Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:— (a) save as provided in clause (b), the amount of liability incurred; (b) in respect of damage to any property of a third party, a limit of rupees six thousand: Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier. (3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases. (4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe. (5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.” 10. In this case, while going through record, we find that policy is a package policy and the Insurance Company has insured said vehicle by accepting a premium for package policy. It is a package policy covering 17 persons. The certification of policy and schedule which is produced before us of vehicle shows that the sitting capacity including driver is also mentioned for which Rs. 23,917/- has been accepted as premium. This ground was neither pleaded nor was it argued or proved before the Tribunal and it is only raised for the first time before us in this appeal. 11. Tribunal while considering the income of the deceased has considered all the aspects namely that he would be earning at least Rs. 3000/- per month and has considered Rs. 3000/- per month as income which has been considered as 36,000/- per year. Considering the judgment of Apex Court in Rajesh v. Rajveer Singh, (2013) 9 SCC 54 , the age of the deceased was 26 years and therefore, as per the judgment of Sarla Verma’s Case (Supra) also 1/3rd amount has to be deducted and a multiplier of 18 was granted. Tribunal has been conservative in granting the amount under the head of consortium and towards loss of love and affection. The judgment cited above will not permit us to take a different view as the Tribunal has awarded compensation taking into consideration judgment in Rajesh v. Rajveer Singh (Supra) and also in the light of the judgment of Sarla Verma (Supra). 12. Tribunal has not committed any error in fastening the liability on the Insurance Company and awarding the compensation of Rs. 6,63,000/- with interest @ 7% in favour of the claimant-respondent. 13. The appeal is dismissed under Order 41 Rule 11 at the stage of admission.