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2016 DIGILAW 656 (JK)

Karnail Singh v. National Insurance Co. Ltd.

2016-12-13

RAMALINGAM SUDHAKAR

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JUDGMENT : RAMALINGAM SUDHAKAR, J. 1. Eighty-four years Karnail Singh s/o Late Teja Singh R/o Village Chatta Gujran, Tehsil and District Jammu appears in person and seeks indulgence of this Court to dispose of his appeal seeking compensation on the death of his son Ghar Singh. 2. Present appeal is of the year 2012. This case had an earlier round of litigation. This Court reversed the judgment of Tribunal declining to grant relief to the appellant-claimant. After setting aside the judgment, this Court remanded the case for fresh consideration. The Tribunal on remand granted a meager relief and hence the claimant is on appeal pleading for just compensation. 3. The accident in this case happened on 16-9-2001 at about 2 p.m. when the deceased Ghar Singh owner of the ill fated tractor was ploughing his field at Najwal with his tractor bearing chassis No. BSM285097 and Engine No. MXC289056. It appears that the tractor hit some explosive substance on the land and caught fire. There was a big explosion and as a result the tractor also exploded causing the death of Ghar Singh. His adopted father-present appellant made a claim for compensation. 4. On 21-1-2003 seven issues were framed by the then Tribunal. Respondent-Insurance Company resisted the claim stating that the deceased was owner of the vehicle and was not covered in terms of the Policy of the Insurance. Vide order dated 5-3-2009; the Tribunal held that the claim petition is not maintainable and dismissed the same. 5. The present appellant-father of the deceased filed CIMA No.303/2009 titled Karnail Singh v. National Insurance Company Limited. By order dated 27-7-2011, the appeal was allowed by way of remand to the Tribunal. On remand further issue was framed: 'Whether an accident took place on 16-9-2001 at village Najwal Jammu due to rash and negligent driving of a tractor in which deceased namely Ghar Singh has died? OPP' 6. The admitted fact is that the deceased is the owner-cum-driver of the ill fated tractor on the fateful day, i.e., 16-9-2001. An additional issue was also framed which reads as follows: 'Whether there is no privity of contract between the owner of tractor and the insurer so what is its effect? OPR-1' 7. OPP' 6. The admitted fact is that the deceased is the owner-cum-driver of the ill fated tractor on the fateful day, i.e., 16-9-2001. An additional issue was also framed which reads as follows: 'Whether there is no privity of contract between the owner of tractor and the insurer so what is its effect? OPR-1' 7. The Tribunal proceeded on the basis that it will have the right to examine whether the accident will qualify to be one arising out of use of the motor vehicle and as to whether the claim in terms of section 166 MV Act is maintainable. 8. The Tribunal referring to the terms of the contract of insurance was of the view that the deceased was not a third party but was a party to the contract of insurance as owner of the tractor, on the death of the owner claim is not maintainable. Several judgments of the Supreme Court was referred to by the Tribunal to hold that for the death of the owner or a passenger of the vehicle the claim would depend on the terms of contract of Insurance. 9. The only issue that would arise is whether on the death of Ghar Singh, the contract of insurance will cover the claim. The Tribunal relied upon a part of the insurance policy, contracted between the parties to give partial relief but appears to have misread the policy in its entirety and failed to grant just compensation. 10. The Tribunal referring to a sum of Rs.15/- received as premium to cover the risk of the driver of the tractor held that a driver more particularly a paid driver alone would be entitled to compensation on the basis of the premium paid under the contract. It held that the contract does not include the owner who himself is the driver. The Tribunal relies on Section II(d) of the Policy. 11. The Tribunal further held that the policy is JPA/Gramin Accidents Insurance Policy where under on the death of any person a sum of Rs.25000/- alone is payable. The Tribunal held that the policy is issued in terms of the JPA Scheme and, therefore, claimant will be entitled to a sum of Rs.25000/- on the death of his son with interest at 7.5%. 12. The Tribunal held that the policy is issued in terms of the JPA Scheme and, therefore, claimant will be entitled to a sum of Rs.25000/- on the death of his son with interest at 7.5%. 12. In the appeal filed by the claimant it is stated that the Tribunal fell into gross error in misreading the terms of policy, entered into by the deceased-owner of the tractor and the insurance company and has granted a pittance as compensation. The interpretation of the policy is perverse. 13. To cut short the controversy in the present case, it will be relevant to extract the policy as such so as to avoid any form of confusion in the interpretation of the terms of the policy, The Policy reads thus: (Policy form omitted. ............Ed.) 13A. On a reading of the insurance policy it is evident that it is not a JPA policy, but on the other hand it is a comprehensive policy. It covers various heads which are as follows: a sum of Premium Rs.3518/-; Class of Risk is Comprehensive Policy stated as which covers IEV Rs.3220/-; Driver Rs.15/- two labourer Rs.30/- Building damage Rs.50,000/-- premium Rs.35/- burglary Rs.20,000/-- premium Rs.48/- JPA - - Rs.25,000/-- premium Rs.15/- Premium Total - - Rs.3518/- 13B. From this it is evident that JPA Scheme is one among the various components of the policy. Primarily, it is a comprehensive policy. A driver is also included. Therefore, the Tribunal has misread the policy to come to an erroneous conclusion that it is a JPA Policy. The comprehensive policy covers all claims including the claim be it owner/driver or paid driver of the vehicle or labourer, building damage, etc. Since a driver is included, the present case gets covered as the deceased was driving the vehicle at the time of accident. JPA is one among the various components of the comprehensive policy. Hence the claim is in order. The reasoning of the Tribunal that only a paid driver is covered is based on a misreading of the Policy. On this premise the finding of the Tribunal is reversed and the claimant will be entitled to just compensation as prescribed by law. 13C. Hence the claim is in order. The reasoning of the Tribunal that only a paid driver is covered is based on a misreading of the Policy. On this premise the finding of the Tribunal is reversed and the claimant will be entitled to just compensation as prescribed by law. 13C. For the purpose of determining the compensation this Court is not inclined to remand the matter to the Tribunal because the 84 year old frail claimant has been going up and down the portals of Court and the Tribunal seeking compensation on the death of his son. His agony cannot be prolonged any further. Therefore, this Court is inclined to take up the claim to determine the quantum on the basis of available record and the pleadings. 13D. Accident in this case happened on 16-9-2001. The deceased Ghar Singh is a 29 years old bachelor and an intensive agriculturist owing a tractor and doing farming to earn living. The income is claimed as Rs.10000/- per month. In the absence of any document and specific proof, income has to be fixed based on the nature of agricultural activity, his young age, his ability to use machine tools like tractor to earn income. Considering the above parameters, it will be much more than a normal agriculturist. The income, therefore, can be taken as Rs. 8000/- per month. From this 50% has to be deducted towards personal expenses of the deceased bachelor leaving a sum of Rs.4000/- as pecuniary loss to the dependent. The annual loss of income will be Rs.4000/- x 12 = Rs.48,000/-. In this case multiplier of 17 will be applicable in terms of the Apex Court decision in Sarla Verma & Ors. v. Delhi Transport Corporation & Anr., reported in 2009 (3) Supreme 487 : ( AIR 2009 SC 3104 ). The total pecuniary loss comes to Rs.8,16,000/- Claimant will be entitled to non-pecuniary benefits like loss of love and affection, funeral expenses etc. In the result the following amount is to be paid as compensation: Loss of dependency Rs.8,16,000/- Loss of love and affection Rs.25,000/- Transport and funeral expenses Rs.15,000/- Total an amount Rs.8,56,000/- (Rupees Eight Lac Fifty Six Thousand) With interest @ 6% as ordered by the Tribunal. 14. In the result the following amount is to be paid as compensation: Loss of dependency Rs.8,16,000/- Loss of love and affection Rs.25,000/- Transport and funeral expenses Rs.15,000/- Total an amount Rs.8,56,000/- (Rupees Eight Lac Fifty Six Thousand) With interest @ 6% as ordered by the Tribunal. 14. The respondent insurance company is directed to deposit the amount of Rs.8,56,000/- (Rupees Eight Lacs Fifty Six Thousand) less any amount already deposited within six week from the date of receipt of copy of this order. Claimant is at liberty to withdraw the award amount on such deposit. 15. Appeal is allowed as above.