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2018 DIGILAW 2024 (HP)

United India Insurance Company Ltd. v. Anil Kumar

2018-11-20

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. The Insurer of the offending vehicle, has, instituted the instant appeal before this Court, wherethrough, it, casts a challenge, upon, the award pronounced by the learned Motor Accident Claims Tribunal-II, Kullu, District Kullu, upon, Claim Petition No. 04 of 2016, whereunder, compensation amount comprised, in, a sum of Rs.12,65,000/- along with interest accrued thereon, at the rate of 9% per annum, from, the date of petition till realization thereof, stood, assessed, vis-a-vis, the claimants, and, the apposite indemnificatory liability thereof, was, fastened upon the insurer. 2. The learned counsel appearing for the insurer has contended with much vigour before this Court, (i) that, with the report of the FSL concerned, borne in Ex.RW2/B, making a clear display qua ethyle alcohol hence being detected respectively, in, the blood, and, urine sample, of, Rakesh Kumar, owner-cum-driver of the offending vehicle, and, with per centum whereof being echoed hterein, to be, respectively 28 mg%, in, blood, and, 72-45% in urine, (ii) thereupon, when he was critically inebriated, at the relevant time, hence, the terms of the contract of insurance, stood evidently breached, (iii) and, thereupon, the apposite indemnificatory liability standing erroneously fastened, upon, the insurer. However, the aforesaid plea, is, misfounded, given this Court in a judgment rendered, in, a case titled as Khem Chand vs. Smt. Uma Devi and others, reported in Latest HLJ 2010(HP) 1, the relevant paragraph No.4 whereof stand extracted hereinafter: “4. The law is very well settled that a claim which falls within the purview of the an Act Policy i.e. a liability falling within the ambit of Section 147 of the Motor Vehicles Act, 1988 (The Act) can only be contested by the Insurance Company on the grounds available to it under Section 149 of the Act. It is not permitted to contest the proceedings no any other grounds. Intoxication of the driver is not a ground available to the Insurance Company under Section 149 of the Act. Therefore, the liability which is statutory under Section 147 of the Act, has to be satisfied by the insurer. It is not permitted to contest the proceedings no any other grounds. Intoxication of the driver is not a ground available to the Insurance Company under Section 149 of the Act. Therefore, the liability which is statutory under Section 147 of the Act, has to be satisfied by the insurer. It may be clarified that in case the insurer in addition to the liability, which it is bound to cover under the Act covers other liability then in case of such extended liability, it may raise the defences available to it as per terms of the policy, but as far as statutory liability is concerned, the insurer has o authority to incorporate any term in the policy which is not contemplated in terms of Section 149 of the Act. Therefore, the insurance company could not have been permitted to raise this defence and it could not be permitted to recover the awarded amount from the insured.” (i) rather making a clear expostulation therein, that, the inebriation of the driver of the ill-fated vehicle concerned, not being, a, statutorily espousable ground for the insurer, and, concomitantly, if, the, afore inebriation stands proven, by the insurer, (ii) thereupon, it being not permissible for it, to, escape from its indemnificatory liability. Consequently, the afore submission addressed before this Court, is, rejected. 3. The learned counsel appearing for the appellant, has, thereafter contended with much vigour (i) that with the deceased being a house wife, hence, her services, as, a house holder, enjoined determination, of, value thereof, and, only to the extent, of, deprivation(s) of monetary value thereof, the claimants being entitled, to, compensation amount, being determined qua them. He contends that with, no, evidence existing on record, qua the deceased earning any income, and, with no data existing on record, for, computing the monetary value, of, the services rendered by the deceased house wife, (ii) thereupon, in consonance with the verdict rendered by the Hon'ble Apex Court, in, a case titled as Lata Wadhwa v. State of Bihar, reported in (2001) 8 SCC 197 , the relevant paragraph No.10 whereof stand extracted hereinafter:- “10. So far as the deceased housewives are concerned, in the absence of any data and as the housewives were not earning any income, attempt has been made to determine the compensation, on the basis of services rendered by them to the house. So far as the deceased housewives are concerned, in the absence of any data and as the housewives were not earning any income, attempt has been made to determine the compensation, on the basis of services rendered by them to the house. On the basis of the age group of the housewives, appropriate multiplier has been applied, but the estimation of the value of services rendered to the house by the housewives, which has been arrived at Rs.12,000/- per annum in cases of some and Rs.10,000/- for others, appears to us to be grossly low. It is true that the claimants, who ought to have given datas for determination of compensation, did not assist in any manner by providing the datas for estimating the value of services rendered by such housewives. But even in the absence of such datas and taking into consideration, the multifarious services rendered by the housewives for managing the entire family, even on a modest estimation, should be Rs.3000/- per month and Rs.36,000/- per annum. This would apply to all those housewives between the age group of 34 to 59 and as such who were active in life. The compensation awarded, therefore should be re-calculated, taking the value of services rendered per annum to be Rs.36,000/- and thereafter applying the multiplier, as has been applied already, and so far as the conventional amount is concerned, the same should be Rs.50,000/- instead of Rs.25,000/- given under the Report. So far as the elderly ladies are concerned, in the age group of 62 to 72, the value of services rendered has been taken at Rs.10,000/- per annum and multiplier applied is eight. Though, the multiplier applied is correct, but the values of services rendered at Rs.10,000/- per annum, cannot be held to be just and, we, therefore, enhance the same to Rs.20,000/- per annum. In their case, therefore, the total amount of compensation should be re-determined, taking the value of services rendered at Rs.20,000/- per annum and then after applying the multiplier, as already applied and thereafter adding Rs.50,000/- towards the conventional figure.” the value of the services of the deceased being computable at Rs.3,000/- per mensem, whereas, the learned tribunal, in, computing the afore value at Rs.9,000/- per mensem, has, rather committed a gross error. 4. 4. However, the afore submission is grossly misfounded, (i) as, it is anvilled, upon, a palpable misreading of the afore extracted paragraph, borne in the judgment supra, (ii) misreading whereof, arises, from the factum, that, the afore extracted para would be applicable only, upon, evidence existing on record qua the deceased house wife hence not earning any income. Contrarily, hereat, rather uneroded testification(s) hence exist on record qua the deceased house wife earning an income of Rs.10,000/- per mensem, from, hers selling ready-made garments. Given, the existence of the afore uneroded testification, vis-a-vis, the afore settled income reared by the deceased, from, hers selling ready-made garments, thereupon, in, the learned tribunal computing her income at Rs.9000/- per mensem, has, not committed any gross fallacy or error. 5. For the foregoing reasons, there is no merit in the instant appeal and it is dismissed accordingly. The impugned award is maintained and affirmed. All pending applications also stand disposed of. Records be sent back forthwith.