Research › Search › Judgment

J&K High Court · body

2016 DIGILAW 666 (JK)

Oriental Insurance Company Ltd v. Varsha Devi

2016-12-17

JANAK RAJ KOTWAL

body2016
JUDGMENT : JANAK RAJ KOTWAL, J. 1. With the consensus of learned counsel for both the sides, main appeal is taken up for consideration for final disposal. Heard. 2. The claim application was filed by the claimants (herein respondents 1 to 4) under section 166 of the Motor Vehicles Act, 1988 (for short the Act). It was alleged that the deceased, Raj Kumar, was engaged as the co-driver by the owner of the offending vehicle and died in the course of his employment as the offending vehicle met with accident due to rash and negligent driving by its driver. The learned Claims Tribunal has awarded compensation of Rs. 8,35,000/- and foisted liability of paying the entire compensation on the appellant/insurance company with whom the offending vehicle was insured for third party risk in terms of section 146 read with section 147 of the Act. 3. Learned counsel for the appellant-Insurance Company submitted, precisely and mainly, that the owner of the offending vehicle had obtained "Act Policy" only by virtue whereof liability of the Insurance Company in a case of death of an employee of the insured (owner) was limited to the extent the said liability arises under the Workmen Compensation Act, 1923 (now called as the 'Employees Compensation Act'). This factual position is not denied by the counsel for the claimants and is also evident from the contents of the Insurance Policy lying on the file of the Tribunal. 4. The liability of the Insurance Company under the Insurance Policy issued by it being limited to the extent of insured's liability under the Employees Insurance Act, the Insurance Company is liable to indemnify the insured to that extent only and could not have been saddled with the liability to satisfy the entire award. Learned Tribunal should have foisted liability on the Insurance Company to the extent of liability of the insured (owner) to pay compensation to legal representatives of the deceased under the Employees Compensation Act. Learned Tribunal has, therefore, fallen in error by directing the appellant-Insurance Company to pay the entire award amount to the claimants. 5. Viewed thus, impugned judgment and award is modified by directing that the appellant-Insurance Company shall indemnify the owner to the extent of the compensation payable by him under the Employees Compensation Act, 1923. Learned Tribunal has, therefore, fallen in error by directing the appellant-Insurance Company to pay the entire award amount to the claimants. 5. Viewed thus, impugned judgment and award is modified by directing that the appellant-Insurance Company shall indemnify the owner to the extent of the compensation payable by him under the Employees Compensation Act, 1923. The appellant shall calculate the compensation so payable, having regard to the income of the deceased, assessed by the learned Tribunal as Rs. 6000/- per month and up to date interest on the said amount. The amount so calculated shall be released in favour of the Claimants. The excess amount shall be returned to the appellant. 6. The award amount other than that paid (indemnified) by the Insurance Company along with the proportionate interest on that amount shall be paid to the claimants by the owner of the offending vehicle. 7. Record of the learned Tribunal be remitted back along with copy of this judgment. Disposed of. Disposed off.