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2023 DIGILAW 200 (KAR)

United India Insurance Co. Ltd. v. Shravankumar

2023-02-01

SREENIVAS HARISH KUMAR, T.G.SHIVASHANKARE GOWDA

body2023
JUDGMENT T.G.SHIVASHANKARE GOWDA, J. In these appeals the appellants have challenged the judgment dtd. 24/7/2013 passed in MVC No.18/2011 on the file of the Principal Senior Civil Judge and Motor Accident Claims Tribunal, Gulgarga (Hereinafter referred to as 'Tribunal' for short). 2. The 3rd respondent before the Tribunal has filed the MFA No.32944/2013. The petitioners before the Tribunal have filed the connected appeal in MFA No.32076/2013. The parties will be referred with respect to their status before the Tribunal for the sake of convenience. 3. Briefly stated, the facts are that, the petitioners are the parents of Vinod, the deceased. The deceased suffered severe injuries in a road accident that took place on 22/2/2010 near Teerth Cross, Aland while traveling in a Jeep bearing registration No.MH-26/C-4832. Despite he was provided treatment at Government Hospital, Aland, Basaveswar Hospital Gulbara and Yeshodgara Hospital, Solapur he succumbed to injuries on 24/4/2010. Petitioners claimed compensation of Rs.32, 32, 000.00. They pleaded that deceased was aged 16 years, a student and was also doing coaching and earning Rs.4, 000.00 per month. The claim was opposed by the Insurance Company on the ground that the deceased was a fare paid passenger, jeep being used for transportation of passenger and risk of the deceased was not covered under the policy. The Tribunal awarded Rs.2, 82, 000.00 with 6% interest and fastened the liability on the Insurance Company. 4. The petitioners have pleaded inadequacy in the compensation awarded by the Tribunal. Insurance Company is also before this Court on the grounds that fastening of liability is erroneous, the policy issued was Act policy, it has no cover for the passenger, and the driver of the Jeep was not holding valid DL. 5. According to the learned counsel for petitioners, the deceased was drawing salary of Rs.4, 000.00 per month, future prospectus was not added, under conventional heads proper compensation was not awarded and accordingly he sought for re-assessment and enhancement. 6. Per contra, learned counsel for Insurance Company contended that the deceased was fare paying passenger in the Jeep, the policy obtained by the owner was only an Act Policy, the inmates of the Jeep were not covered under the said policy, on the date of accident driver of the jeep did not possess valid driving license and Insurance Company has no liability to pay compensation. It is further contended that the policy was not obtained for the passengers, question of applying the principle of pay and recovery does not arise and sought for modification of the liability aspect. 7. We have given our anxious consideration to the arguments addressed on behalf of the parties and perused the records. 8. Undisputed facts are that the petitioners were parents of the deceased, the deceased was the PUC student, at the time of accident he was traveling in the jeep as a passenger, though jeep was insured, it had no coverage for passengers of the jeep, the age of the deceased as per Ex.P7 - Post Mortem report was 17 years at the time of accident. Petitioners being the parents are entitle to claim compensation on account of death of the deceased. 9. As seen from the impugned judgment, the Tribunal has considered monthly income of the deceased at Rs.2, 000.00 as he was a student, deducted 50% of it and applied 16' multiplier for calculating loss of dependency. The deceased was 17 years old student, he was said to be earning Rs.4, 000.00 per month being a Coacher. The accident was of the year 2010. The deceased had grown up to the stage of earning. Even for a person without proof of income, a sum of Rs.5, 500.00 is being considered in the Lok Adalat. The petitioners in the petition specifically contended that the deceased was earning Rs.4, 000.00 per month and it is just and proper to accept the notional income of the deceased at Rs.4, 000.00 per month at the time of accident. By applying the principles laid down in National Insurance Company Limited vs. Pranay Sethi and Others - 2017 ACJ 680 , future prospects should be taken at 40% for the age below 40 years. As indicated in the Post Mortem repot the age of the deceased was 17. Hence, applicable multiplier as per decision of Apex Court in the case of Sarla Verma v. DTC- (2009)6 SCC 121 , is 18'. 10. The compensation towards conventional head has been settled by the Hon'ble Apex Court in Pranay Sethi's case, accordingly it has to be assessed. 11. If all these factors are taken into consideration the assessment of loss of dependency would be: Rs.4, 000.00 (Notional income of the deceased) + Rs.1, 600.00 (40% Future Prospects) = Rs.5, 600.00 per month. 10. The compensation towards conventional head has been settled by the Hon'ble Apex Court in Pranay Sethi's case, accordingly it has to be assessed. 11. If all these factors are taken into consideration the assessment of loss of dependency would be: Rs.4, 000.00 (Notional income of the deceased) + Rs.1, 600.00 (40% Future Prospects) = Rs.5, 600.00 per month. As the deceased was bachelor, 50% of Rs.5, 600.00 has to be deducted towards his personal expenses, accordingly it comes to Rs.2, 800.00 per month. The multiplier applicable is 18'. The calculation for loss of dependency is 2, 800/- x 12 x 18 = Rs.6, 04, 800.00. Under conventional heads, for both the parents towards loss of love and affection Rs.40, 000.00 each to be considered and towards funeral expenses and loss of estate Rs.15, 000.00 each to be considered. 12. Ex.P8 consisting of 246 Medical Bills showing the expenditure incurred by the parents towards treatment of the deceased, which is not disputed by the other side. The bills consist of advance bills and some of them are duplication of bills. If these bills are excluded, actual medical expenses comes to Rs.1, 24, 000.00. Whereas, the Tribunal has assessed medical expenses at Rs.50, 000.00, for no reason. Hence, the petitioners are to be reimbursed the medical expenses incurred by them towards treatment. Thus, the just compensation comes to Rs.8, 38, 800.00, to which, the petitioners are entitled. 13. Adverting to the contention of the Insurance Company that there is no insurance cover for passengers of jeep, on perusal of the impugned judgment, we notice that there is no discussion about it, but the Tribunal went on a wrong assumption that the insurance cover has been conceded by the producing Policy under Ex.R1 and fastened the liability on the Insurance Company. On perusal of Ex.R1, it is pertinent to note that it is a private car, liability only policy covering the 3rd party risk, for which premium of Rs.2, 500.00 and a sum of Rs.25.00 is collected towards one employee and in all Rs.2, 525.00. The policy does not disclose any coverage obtained for the passengers of the jeep. Hence, even though the jeep having an insurance coverage, it is only a Liability Policy and not a comprehensive policy. The co- ordinate Bench of this Court in Branch Manager, The New India Assurance Co. The policy does not disclose any coverage obtained for the passengers of the jeep. Hence, even though the jeep having an insurance coverage, it is only a Liability Policy and not a comprehensive policy. The co- ordinate Bench of this Court in Branch Manager, The New India Assurance Co. Ltd., vs. Mahadev Pandurang Patil and Another - ILR 2012 KAR 1841 referring to the judgments of Hon'ble Apex Court in 2000 ACJ 1 SC - New India Assurance Co. Ltd., vs. Satpalsingh & Ors., 2003 ACJ 1 - New India Assurance Co. Ltd., vs. Asha Rani and Ors ., AIR 2006 SC 1576 United India Insurance Co. Ltd., Shimla vs. Tilak Singh and Ors ., 2008 ACJ 2045 - Oriental Insurance Co. Ltd., vs. Sudhakaran K.V. & Ors ., and 2001 ACJ 2059 , Dr. T.V. Jose vs. Chacko P.M. and Ors ., and held at Para 17 as under: "In view of the authoritative pronouncement of the Apex Court holding that an occupant/inmate/passenger in a private car, is not a third party, the finding recorded by the tribunal that the insurance policy issued covers the risk of such persons and therefore the insurance company is liable to pay compensation amount is illegal and contrary to the law declared by the Apex Court. In fact, in the policy, no additional premium is received by the insurance company to cover the risk of such persons. It is clear from the terminology used in the policy which fact is not in dispute. In one of the cases, additional premium is collected to loading the risk of third party only, as is clear from the policy that loading was not meant to cover risk of inmates of a private car and therefore, merely because an additional premium is collected under the said policy, it cannot be inferred that the risk of inmates of a car are covered. The words are specific that the loading is done in order to cover only third party risk, it is not a case of additional premium being collected to cover the risk of inmates along with third parties. Therefore, in the facts of this case, we are satisfied, as the insured has not paid additional premium and the insurance company has not collected any additional premium, the risk of the occupants of a private car was not covered. Therefore, in the facts of this case, we are satisfied, as the insured has not paid additional premium and the insurance company has not collected any additional premium, the risk of the occupants of a private car was not covered. Therefore, liability foisted on the insurance company cannot be sustained and accordingly, it is hereby set aside." 14. In view of the position of law the Insurance Company is not liable to pay the compensation. As we observe, the Tribunal has committed error in jumping into conclusion that there is an insurance cover and the Insurance Company is liable to pay the compensation. Hence, the ground urged by the Insurance Company is tenable, liability fastened against the Insurance Company is liable to be set aside. The owner of the jeep is liable to pay the compensation. Hence, both the deserve to be allowed accordingly. 15. In the result, we pass the following: ORDER Both the appeals are allowed in part. The judgment and award passed by the Tribunal is modified. The petitioners are entitled to compensation of Rs.8, 38, 800.00 with interest at the rate of 6% per year, as against Rs.2, 82, 000.00 awarded by the Tribunal. The liability against the Insurance Company is set aside. Respondent Nos.1 and 2 before the Tribunal are jointly and severally held liable to pay the compensation and are directed to deposit the compensation with interest within 4 weeks from the date of this order. The amount deposited by the Insurance Company is ordered to be refunded to the Insurance Company forthwith.