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2022 DIGILAW 189 (JK)

National Insurance Company Limited v. Kanta Devi

2022-04-22

RAJNESH OSWAL

body2022
JUDGMENT : Rajnesh Oswal, J. 1. This appeal has been filed by the Insurance Company against the judgment and award dated 22.09.2015 passed by the Motor Accidents Claims Tribunal, Jammu (hereinafter to be referred as the Tribunal), in file No. 160/2012, titled, Kanta Devi & Ors. v. Raj Kumar & Ors. by virtue of which compensation of Rs. 24,25,000/- has been awarded in favour of the respondents/claimants along with interest at the rate of 7.5% per annum. 2. The present appeal has been filed by the appellant/Insurance Company primarily on the ground that as per the policy of insurance, the appellant had undertaken the liability to cover the risk of one driver under the Workmen Compensation Act for driving the offending tractor but the risk of any other person either in the capacity of labourer or passenger on the said tractor was not covered. It is further stated that the learned Tribunal has passed the impugned award against the law and facts, as from the evidence available on record, it is crystal clear that on the date of accident, the deceased was travelling while sitting on the mudguard of the tractor involved in the accident, that was driven by Raj Kumar. Sitting on the mudguard is against the policy of insurance, as in the tractor, except the driver seat, there is no other provision for sitting on the tractor. It is further submitted that the learned Tribunal has committed a serious illegality by returning an erroneous finding that the deceased being a labourer travelling on a tractor was covered under section 147 of the Motor Vehicle Act. It is further stated that the compensation awarded is on the higher side. 3. Mr. Sanjay Dhar, Learned Counsel for the appellant vehemently argued that the Insurance Company has been wrongly saddled with the responsibility as the deceased was travelling as gratuitous passenger and only risk of driver was covered under the Policy under Workman Compensation. He further argued that the learned Tribunal has wrongly read the evidence of the witness DW Shiv Kumar Gupta that he has admitted that the death of the deceased is covered under the policy for third party risk. He placed reliance upon the judgment of Karnataka High Court in Oriental Insurance Co. v. Smt. Shobha reported in 2012 ACJ 2297 , full bench Judgment of Karnataka High Court reported in 2021 ACJ 2588. 4. Mr. He placed reliance upon the judgment of Karnataka High Court in Oriental Insurance Co. v. Smt. Shobha reported in 2012 ACJ 2297 , full bench Judgment of Karnataka High Court reported in 2021 ACJ 2588. 4. Mr. Ankesh Chandel, learned counsel for the respondents/claimants vehemently argued that the deceased was working as labourer and the appellant had received the premium for one Employee for workman compensation and as such the risk of labourer was covered under the policy. He placed reliance upon the judgment of Karnataka High Court in Sri K. Mallappa v. Lalithamma & Ors. bearing No. MFA 3796/2016 decided on 30.03.2016. 5. Heard and perused the record. 6. The facts necessary for disposal of the present appeal are that the claimants/respondents filed a claim petition for grant of compensation on account of death of deceased-Baldev Raj in a vehicular accident on 29.04.2012 at 2.00 PM involving tractor bearing registration No. JK21-9233. Respondent No. 1 is the widow, respondent Nos. 2 to 4 are the children and respondents 5 to 6 are the parents of the deceased. In the claim petition, it was stated that the deceased was sitting on the said tractor while it was on its way from Nud to Paper Morh Samba and when it reached near Paper Morh, the tractor turned turtle due to which the deceased Baldev Raj died on spot. It was also stated that he was working as a labourer with the said tractor. 7. Notices were issued to the appellant, driver and owner of the offending tractor, however, only appellant filed the response to the said claim petition and on the basis of pleadings of the parties, the following issues were framed: “1. Whether an accident took place on 29.04.2012 near Paper Morh Samba by rash and negligent driving of the tractor bearing registration No. JK21-9233, by its driver respondent No. 1, as a result of which the deceased Baldev Raj received fatal injuries.? OPP. 2. If issue No. 1 is proved in affirmative whether petitioners are entitled to compensation, if so to what amount and from whom? OPP 3. Whether the driver of offending vehicle was not holding a valid and effective driving licence at the time of accident and whether there was violation of terms and conditions of policy of insurance? OPR-3 4. Whether the deceased was travelling as a gratuitous passenger in the offending Tractor? OPP 3. Whether the driver of offending vehicle was not holding a valid and effective driving licence at the time of accident and whether there was violation of terms and conditions of policy of insurance? OPR-3 4. Whether the deceased was travelling as a gratuitous passenger in the offending Tractor? If so to what effect? OPR-3. 5. Relief. O.P. Parties. 8. The claimants/respondents examined respondent No. 1-Kanta Devi, PW Gopal Singh and PW Amar Nath as their witnesses, whereas the appellant-insurance company examined Shiv Kumar Gupta and Raj Kumar (driver of the offending tractor) and Bodh Raj (owner). The learned Tribunal after considering the evidence of the parties, directed the appellant-insurance company to pay the compensation of Rs. 24,25 000/- along with interest at the rate of 7.5% per annum from the date of filing of the petition till its realization. 9. The main contention of appellant is that the insurance company cannot be saddled with any responsibility when the passengers were not covered under the policy and the appellant had undertaken the liability to cover the risk of one driver under workman compensation for driving the said tractor and further even if the deceased is considered as labourer, he was not covered under the Policy. The perusal of the insurance policy reveals that the appellant has received Rs. 25 for “WC to employee-1”. Now the issue that arises for consideration of this Court is whether the sum of 25 received by the appellant for “One Employee” would cover “Driver” only or any other employee of the owner as well. DW Shiv Kumar Gupta, official of the appellant was examined by the appellant, has stated that the appellant had received the premium for a risk for paid driver and risk of no other person was covered under the policy and the deceased was not covered under the policy. The contract of insurance is like any other contract in which the parties may agree upon their corresponding rights and obligations provided they are not illegal or against the public policy. The perusal of insurance policy also reveals that the appellant has received Rs. 100/- for compulsory personal accident cover to owner cum driver for an amount of Rs. 2 lakhs. Further Rs. 25 have been received by the appellant as workman compensation for one employee. The perusal of insurance policy also reveals that the appellant has received Rs. 100/- for compulsory personal accident cover to owner cum driver for an amount of Rs. 2 lakhs. Further Rs. 25 have been received by the appellant as workman compensation for one employee. DW Shiv Kumar Gupta in his cross-examination has stated that he did not know as to who was the manager when the policy was issued. Admittedly, the person who had issued the policy has not been examined by the appellant. Appellant is involved in the business of insurance and appellant being well versed with the insurance business, issued the policy and received Rs. 25 as workman compensation for 1 employee. The appellant when excluded the driver not being owner from the ambit of personal accident cover of Rs. 2 lakhs, the appellant could have also excluded employees of the owner other than driver as well from its liability for workman compensation by specifically mentioning the word “Driver” instead of “Employee”. The appellant did not put any question to the owner of the tractor i.e. Bodh Raj with regard to its contention that workman compensation was meant only for paid driver and not for any other employee. In Sri K. Mallappa v. Lalithamma & Ors., the High Court of Karnataka held that “the use of phrase “WC to Employee 1” undoubtedly means cover of risk of an employee and not necessarily a driver. Thus this court finds itself unable to persuade itself with the argument of Mr. Dhar and as such the same is rejected. 10. The other issue raised by the appellant is with regard to the quantum of compensation. The perusal of the award reveals that the income of the deceased has been enhanced at the rate of 50% whereas the same was required to be enhanced at the rate of 40% as per Pranay Sethi's judgment and as the deceased was having more than three dependents, therefore 25% deduction is required to be made for personal expenses. The multiplier would be 17 as the deceased was of 30 years of the age. The sum of Rs. 1 lakh has been awarded as compensation for loss of consortium to the wife of deceased, which is not in accordance with Pranay Sethi's judgment. Rather the respondent Nos. 1 to 4 are entitled to Rs. 40,000/- each as compensation under the head of loss of consortium. The sum of Rs. 1 lakh has been awarded as compensation for loss of consortium to the wife of deceased, which is not in accordance with Pranay Sethi's judgment. Rather the respondent Nos. 1 to 4 are entitled to Rs. 40,000/- each as compensation under the head of loss of consortium. Though the claimants respondents had claimed that the deceased was earning Rs. 500/- per day as labourer but the Ld. Tribunal after considering the evidence of PW Gopal Singh and claimant Kanta Devi has considered the monthly income of the deceased as 10,000 per month and the same cannot be considered as exorbitant particularly in view of the fact that the deceased was supporting not only his wife but 3 children and parents as well. Rs. 25,000/- awarded for funeral expenses and Rs. 5000/- awarded for loss of estate are not in consonance with the judgment of the Apex Court as mentioned above. As per Pranay Sethi's judgment (2017 SCC Online SC 1270) and Magma General insurance ( 2018 (18) SCC 130 ), the claimants are entitled to compensation of Rs. 23,32,000/- under the following heads: - Loss of dependence..............Rs. 21,42,000/- - funeral expenses...................Rs. 15,000/- - loss of consortium..................Rs. 1,60,000/- - loss of estate....................Rs. 15,000/- - Total............................Rs. 23,32,000/- 11. Award dated 22.09.2015 passed by the Motor Accidents Claims Tribunal, Jammu is modified accordingly. The excess amount deposited by the appellant be released in favour of appellant and the balance amount be released in favour of claimants/respondents strictly in terms of award of the Tribunal.