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2019 DIGILAW 2654 (PNJ)

National Insurance Company Ltd. v. Amandeep Kaur

2019-09-24

H.S.MADAAN

body2019
Judgment Mr. H.S. Madaan, J.:-Petitioners/claimants Smt. Amandeep Kaur, aged about 24years-widow, Master Vikramjeet Singh, aged about 01 years-minor sonand Smt. Amrik Kaur, aged about 50 years-mother of Gurpreet Singh, anunfortunate victim of a road side accident, had filed a claim petitionunder Section 163-A of the Motor Vehicles Act, for grant ofcompensation to the tune of Rs.30 lacs against the respondents i.e. SurjitSingh-owner and National Insurance Company Ltd., Chandigarh-insurerof Car No.PB-65-L-6822. As per version of claimants, on 22.05.2011 atabout 3.45 PM, deceased Gurpreet Singh was coming from HemkundSahib to Chandigarh via Rudraprayag, driving Indigo Car bearingregistration No.PB-65-L-6822 and when, he reached Rudraprayag City,the car went out of control and fell in a ditch. The deceased receivedserious injuries and died. At the time of his death in the accident,deceased was aged about 28 years, doing private work, earning Rs.3300/-per month. The claimants were dependent upon his income. A sum ofRs.20,000/- was spent by them on his cremation. They prayed that theclaim petition be accepted. 2. On being put to notice, both the respondents appeared andfiled written statements. In the written statement filed by respondentNo.1, he almost conceded the case of claimants, contending that thedeceased had a valid and effective driving license to drive the car and thecar was insured with National Insurance Company Ltd., Chandigarh, byway of package policy and premium for covering risk to the driver wasalso paid. In the written statement filed by respondent No.2-insurancecompany, it had raised various legal objections and took statutorydefences, contending that the claim petition had been filed by theclaimants in collusion with respondent No.1-owner of the car. GurpreetSingh-deceased was himself at fault since the accident had taken placedue to his negligence. Therefore, no compensation was payable.Moreover, deceased Gurpreet Singh had stepped into shoes of owner ofthe vehicle, refuting the remaining assertions, such insurance companyprayed for dismissal of the claim petition. 3. On pleadings of the parties, the following issues wereframed:- 1. Whether the accident dated 22.05.2011, resulting in deathof Gurpreet Singh occurred out of use of vehicle No.PB-65-L-6822? OPP. 2. Whether the claimants are entitled for compensation forthe death of Gurpreet Singh, if so, to what extent and fromwhom? OPR. 3. Whether the driver of offending vehicle was not holding avalid and effective driving license on the date of accidentand the vehicle was being driven in violation of terms andconditions of the insurance policy? OPR2. 4. Relief. 4. OPP. 2. Whether the claimants are entitled for compensation forthe death of Gurpreet Singh, if so, to what extent and fromwhom? OPR. 3. Whether the driver of offending vehicle was not holding avalid and effective driving license on the date of accidentand the vehicle was being driven in violation of terms andconditions of the insurance policy? OPR2. 4. Relief. 4. The parties led evidence in support of their respectiveclaims. After hearing arguments, the Motor Accidents Claims Tribunal,Chandigarh (for short ‘the Tribunal’) decided issue No.1 in favour ofclaimants, issue No.2 was decided, finding that the claimants wereentitled to recover the compensation of Rs.4,75,200/- but insurancecompany was liable to the extent of Rs.2 lacs only and vide award dated01.08.2013, the claim petition was accepted partly and compensation ofRs.4,84,700/- was awarded to the claimants, payable by the respondents,however, liability of respondent No.2-insurance company was fixed uptoRs.2 lacs. The claimants were granted interest @ 6% p.a. on thecompensation amount from the date of order till realization. The amountwas ordered to be shared as follows:- Claimant No.1 (widow) = Rs.2,84,700/-(including consortium) Claimant No.2 (minor son) = Rs.1 lakh Claimant No.3 (mother) = Rs.1 lakh 5. It was further directed that share in compensation of majorclaimants shall be paid in cash, whereas, those of minor-claimant No.2 bedeposited in his name in the form of fixed deposit in some nationalizedbank in a scheme fetching maximum interest to be released to him on hisattaining majority. 6. The claimants were dissatisfied with the amount ofcompensation awarded to them by the Tribunal and they have filed anappeal before this Court. Similarly, the insurance company was alsodissatisfied with the award and has preferred an appeal. Notice of boththe appeals were given to respective respondents, who have put inappearance. 7. I have heard learned counsel for the parties besides goingthrough the record. 8. As far as the amount of compensation awarded by theTribunal to the claimants, it has been done as per structured formulaunder Section 163-A of the Motor Vehicles Act and no fault can be foundwith the same but then the liability of the insurance company has beenheld to be limited upto Rs.2 lacs, which is being challenged by theclaimants. 9. 8. As far as the amount of compensation awarded by theTribunal to the claimants, it has been done as per structured formulaunder Section 163-A of the Motor Vehicles Act and no fault can be foundwith the same but then the liability of the insurance company has beenheld to be limited upto Rs.2 lacs, which is being challenged by theclaimants. 9. Learned counsel for the appellants/claimants has contendedthat he had sought information from United India Insurance Company,Sector-17A, Chandigarh under Right to Information Act, posing aquestion as to what is the separate premium if any charged for the risk ofthe unpaid driver covered under package policy for two wheelers and hewas informed that that the cover is automatic and no separate premium isrequired. He has referred to authority United India Insurance Company Ltd. Vs. Kusum Sood and others, 2008 ACJ 2601 by a Division Benchof this Court, wherein it was observed that when a insurance policycovered third party risk and the owner while driving the vehicle had diedin the accident, the insurance company was liable to pay compensation. Itwas clarified that the term ‘driver’ as appearing in the insurance policywould not necessarily mean a person, who is an employee of the owner orwho happens to be at the wheel of the vehicle at the time of accident, butthe necessary implication is that the person to whom the vehicle belongs,is also the intended driver for the same, and would be covered under therisk clause of the policy. He had further referred to judgment Bajaj Allianz General Insurance Company Ltd. Vs. Jasmer Singh and another in FAO-3493-2012 by a Co-ordinate Bench, wherein it was heldas under:- “21. It needs to be emphasized that learned counsel for the appellant-Insurance Company could not dispute liability of the Insurance Company in case the vehicle was being driven by the owner himself as premium of Rs. 50/- for the personal accident claim was paid. If that be so, why not the same principle should apply in case the victim is driving the vehicle under the authority of the owner. The deposit of premium for personal accident claim in the package/comprehensive policy in my view cannot be limited only to the owner as the words used in the policy to cover personal accident is described as ‘owner driver’. The deposit of premium for personal accident claim in the package/comprehensive policy in my view cannot be limited only to the owner as the words used in the policy to cover personal accident is described as ‘owner driver’. Any other interpretation to these plain words would be restricting the authorized driving to the owner himself and such a consequence is manifestly illegal. Such an interpretation would in fact amount to a contract to pay premium for the life insurance which cannot be so as the premium has been paid for the policy issued under the Act. 22. In Ningamma and another’s case (supra) the claim was made under Section 163-A of the Act. The policy of insurance was “Act only Policy”and not a comprehensive/package policy. The victim was travelling on Hero Honda motorcycle which he had borrowed from the real owner. Hon’ble Supreme Court held that the deceased cannot be held to be employee of the owner of the motorcycle although he was authorized to drive the said vehicle by its owner, and, therefore, he would step into the shoes of the owner of the motorbike. I am of the view that if the borrower of the vehicle steps into the shoes of owner, the terms of the policy which is comprehensive/package policy would include the personal accident claim of the person driving the vehicle provided he holds a valid licence. 23. From the above discussion, I find that the view expressed by this Court in Umesh Kumari’s case (supra) and Monika’s case (supra) is more in consonance with the principle held by Hon’ble Supreme Court in Ningamma’s and Sinitha’s cases (supra) and also the purpose and object of the policy of insurance towards personal accidents. The contention, therefore, raised by the learned appellant’s counsel to challenge the Award on this ground cannot be sustained.” 10. Thus, I find that the deceased is also covered by the risk, itbeing a package policy. Though, learned counsel for the insurancecompany has referred to a judgment Oriental Insurance Co. Ltd. Vs. Kavita Singal & Ors. 2012 AAC 757 , contending that the personalaccident cover is available only to the owner of the insured vehicleholding effective driving license and not to any third party driving thevehicle. However, I find that this judgment is not applicable to the factsof the present case. Learned counsel for insurance company has furtherreferred to judgments New India Assurance Co. 2012 AAC 757 , contending that the personalaccident cover is available only to the owner of the insured vehicleholding effective driving license and not to any third party driving thevehicle. However, I find that this judgment is not applicable to the factsof the present case. Learned counsel for insurance company has furtherreferred to judgments New India Assurance Co. Ltd. Vs. Veerpal Kaur and Ors. 2011(2) PLR 694 , New India Assurance Co. Ltd. Vs. Sadanand Mukhi, 2009(1) RCR (Civil) 817, Ningamma & Anr. Vs. United India Insurance Co. Ltd., 2009(3) RCR (Civil) 435 andCholamandlam MS General Insurance Co. Ltd. Vs. Smt. Rajesh & Ors.in FAO-3764-2010 decided on 14.05.2014 but those are also nothelpful to the case of insurance company in any manner due to differentfacts and circumstances of the case and the context, in which suchobservations had been made. 11. The deceased in this case was son of the registered owner ofthe car and he had taken the car under his authority, therefore, he is takento be covered by the risk of the owner/driver as provided under thepolicy. Under Section 163-A of the Motor Vehicles Act, the only thing tobe seen is as to whether the accident had taken place by use of a motorvehicle and question of rashness and negligence is not to be probed.Therefore, the appeal i.e. FAO-5662-2013 filed by the insurance companylacks merit and the same is dismissed, whereas, the appeal filed by theclaimants i.e. FAO-5894-2013 is partly allowed, inasmuch as though thecompensation awarded to claimants at Rs.4,84,700/- is kept intact but rateof interest awarded @ 6% p.a., is enhanced to 7.5% p.a., that too, fromthe date of filing of claim petition till actual realization. However, thedirections with regard to apportionment of the compensation shall remainas such.