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2017 DIGILAW 19 (JK)

National Insurance Co. Ltd. v. Sadiya Shabir

2017-01-31

RAMALINGAM SUDHAKAR

body2017
JUDGMENT : RAMALINGAM SUDHAKAR, J. 1. The National Insurance Company Limited is on appeal challenging the award dated 30-4-2014 passed by the Motor Accident Claims Tribunal, Doda, for short, the Tribunal. 2. These appeals arising out of a single accident which happened on 7-9-2009 are disposed of by a common order. 3. The ill fated Bus bearing Registration No. JK02D/6339 was proceeding from Doda to Jammu and due to rash and negligent driving of its driver it met with an accident at Assar on Batore Doda road. The offending vehicle was owned by one Sukhdev Singh - respondent No. 2 and insured with appellant-Insurance Company. The passenger carrying capacity of the vehicle (Bus) was 42. On the 7-9-2009, it is on record that offending vehicle was carrying more than 50 passengers and due to overloaded the vehicle could not be controlled and the accident happened, due to which 26 persons died and 30 were injured. 4. The Tribunal based on the oral and documentary evidence, came to hold that the offending vehicle was driven in a rash and negligent manner and in violation of law by its driver by carrying more than 50 passengers in excess of its capacity. It is not in dispute that there was a valid insurance cover for the offending vehicle. Despite the admitted plea of overloading the Tribunal fixed the liability on the Insurance Company as insurer, which is assailed in appeal. 5. The plea of the appellant-Insurance Company is that in view of the decision of the Apex Court rendered in the case National Insurance Co. Ltd. v. Anjana Shyam and others, 2007 ACJ 2129 : ( AIR 2007 SC 2870 ). Insurance Company would at best be liable only in respect of 42 passengers. It is the owner of the offending vehicle, who has to satisfy the award in respect of the rest of the claimants. In this case the Tribunal failed to grant that relief. It is further pleaded that in view of the decision of the Apex Court in United India Insurance Co. Ltd. v. K.M. Poona and others, 2011 ACJ 917 : (2011 AAC 997). The Insurance Company should be given option of paying the compensation and recovering the same from the owner of the vehicle. 6. The Hon'ble Apex Court in para 16 of the judgment Anjana Shyam's case (Supra) held that :- "16. Ltd. v. K.M. Poona and others, 2011 ACJ 917 : (2011 AAC 997). The Insurance Company should be given option of paying the compensation and recovering the same from the owner of the vehicle. 6. The Hon'ble Apex Court in para 16 of the judgment Anjana Shyam's case (Supra) held that :- "16. Then arises the question, how to determine the compensation payable or how to quantify the compensation since there is no means of ascertaining who out of the overloaded passengers constitute the passengers covered by the insurance policy as permitted to be carried by the permit itself. As this Court has indicated, the purpose of the Act is to bring benefit to the third parties who are either injured or dead in an accident. It serves a social purpose. Keeping that in mind, we think that the practical and proper course would be to hold that the insurance company, in such a case, would be bound to cover the higher of the various awards and will be compelled to deposit the higher of the amounts of compensation awarded to the extent of the number of passengers covered by the insurance policy. Illustratively, we may put it like this. In the case on hand, 42 passengers were the permitted passengers and they are the ones who have been insured by the insurance company. 90 persons have either died or got injured in the accident. Awards have been passed for varied sums. The Tribunal should take into account, the higher of the 42 awards made, add them up and direct the insurance company to deposit that lump sum. Thus, the liability of the insurance company would be to pay the compensation awarded to 42 out of the 90 passengers. It is to ensure that the maximum benefit is derived by the insurance taken for the passengers of the vehicle, that we hold that the 42 awards to be satisfied by the insurance company would be the 42 awards in the descending order starting from the highest of the awards. In other words, the higher of the 42 awards will be taken into account and it would be the sum total of those higher 42 awards that would be the amount that the insurance company would be liable to deposit. In other words, the higher of the 42 awards will be taken into account and it would be the sum total of those higher 42 awards that would be the amount that the insurance company would be liable to deposit. It will be for the Tribunal thereafter to direct distribution of the money so deposited by the insurance company proportionately to all the claimants, here all the 90, and leave all the claimants to recover the balance from the owner of the vehicle. In such cases. it will be necessary for the Tribunal, even at the initial stage, to make appropriate orders to ensure that the amount could be recovered from the owner by ordering attachment or by passing other restrictive orders against the owner so as to ensure the satisfaction in full of the awards that may be passed ultimately." 7. In United India Insurance Co. Ltd. v. K.M. Poonam, 2011 AAC 997 (supra), Hon'ble the Supreme Court in para 26, held as follows:- "26. Having arrived at the conclusion that the liability of the Insurance Company to pay compensation was limited to six persons travelling inside the vehicle only and that the liability to pay the others was that of the owner, we, in this case, are faced with the same problem, as had surfaced in Anjana Shyam's case, 2007 ACJ 2129 (SC) : ( AIR 2007 SC 2870 ). The number of persons to be compensated being in excess of the number of persons who could validly be carried in the vehicle, the question which arises is one of apportionment of the amounts to be paid. The number of persons to be compensated being in excess of the number of persons who could validly be carried in the vehicle, the question which arises is one of apportionment of the amounts to be paid. Since there can be no pick and choose method to identify the five passengers, excluding the driver, in respect of whom compensation would be payable by the Insurance Company, to meet the ends of justice we may apply the procedure adopted in Baljit Kaur's case, 2004 ACJ 428 (SC) : ( AIR 2004 SC 1340 ) and direct that the Insurance Company should deposit the total amount of compensation awarded to all the claimants and the amounts so deposited be disbursed to the claimants in respect to their claims, with liberty to the Insurance Company to recover the amounts paid by it over and above the compensation amounts payable in respect of the persons covered by the Insurance Policy from the owner of the vehicle, as was directed in Baljit Kaur's case." 8. In view of the plea as above the foremost endeavour is to identify those 42 passengers for whom the Insurance Company is liable and identify other claims for which the Insurance Company has to satisfy and recover from the owner of the vehicle. 9. In terms of Anjana Shyam's case ( AIR 2007 SC 2870 ) (supra), 42 highest claims shall be first satisfied by the appellant-Insurance Company and rest will be the liability of the owner of the vehicle, which, however, the Insurance Company will pay and it will be entitle to recover the same from the owner of vehicle as per K.M. Poonam's case (2011 AAC 997) (supra). 10. Appeal on liability partly allowed. 11. Insofar as issue regarding reduction of compensation is concerned, the Court is inclined to take up each case separately. CIMA No. 504/2014 12. In this case, claimant is a girl of six years and a student. In the accident she received multiple injuries and his disability has been assessed between 20 to 25%. After the accident, girl remained admit in the GMC hospital, Jammu. 13. The Tribunal has granted Rs. 1,25,000/- as compensation to the claimant with interest @ 7.5% per annum from the date of institution of claim petitions till realization. 14. In the accident she received multiple injuries and his disability has been assessed between 20 to 25%. After the accident, girl remained admit in the GMC hospital, Jammu. 13. The Tribunal has granted Rs. 1,25,000/- as compensation to the claimant with interest @ 7.5% per annum from the date of institution of claim petitions till realization. 14. Considering the age, period of hospitalization and the nature of injuries sustained by the claimant, the compensation awarded by the Tribunal is not excessive. 15. There is no reason to reduce the compensation awarded. Accordingly, the appeal on quantum is dismissed and the award confirmed. CIMA No. 506/2014 16. On the death of one year old baby, a sum of Rs. 3,75,000/- has been awarded with interest @ 7.5% per annum from the date of institution of claim petition till realization. 17. Consider the year of accident and the decisions of the Hon'ble Supreme Court in Lata Wadhwa v. State of Bihar, 2001 Vol-8 SCC 197 : ( AIR 2001 SC 3218 ) the compensation granted by the Tribunal is not excessive. 18. There is no just reason to reduce the compensation awarded. Accordingly, the appeal is dismissed and the award of the Tribunal is confirmed. CIMA NO. 513/2014 19. It is a case of injury. 20. In this case, claimant aged 45 years is a house wife and stated to be earning Rs. 8000/- per month. In the accident she received multiple injuries and her disability was assessed by the doctor at 55% for which an amount of Rs. 2,62,200/- has been granted as compensation by the Tribunal along with interest @ 7.5% per annum. 21. Considering the age, nature of injuries, period of hospitalization and occupation of the injured-claimant, compensation awarded by the Tribunal is not excessive. 22. There is no reason to reduce the compensation awarded. Accordingly, the appeal on quantum is dismissed and the award of the Tribunal is confirmed. 23. Appeal partly allowed.