MACMA/2740/2009 of Smt. Ch. Jayamma Vs N.Krishnakanth on 28 December 2012

JUDGMENT:

This appeal is filed by the claimants against the award dated28.09.2006 passed by the Motor Vehicle Accident Claims Tribunal-cum-IV Additional Metropolitan Sessions Judge-cum-XVIII AdditionalChief Judge, Hyderabad in O.P.No.2603 of 2006.

2. I have heard the learned counsel appearing for the appellantsand the learned counsel appearing for the third respondent/insurancecompany.

3. The appellants/claimants filed a claim case under Section 166of the Motor Vehicle Act, 1988 claiming compensation of Rs.8 lakhson account of the death of the deceased-Ch.Venkatachary in a motorvehicle accident occurred on 15.03.2006 while the deceased andothers were travelling in a car bearing No.AP 26 H 1044 towardsJaiprakash Nagar for the purpose of attending pooja at HamunanTemple.

4. The learned Tribunal on evidence recorded a finding that theaccident was caused due to rash and negligent driving of the cardriver. There being, no challenge to the said finding by the insurancecompany, it became final and does not require any consideration inthe present appeal.

5. The claimant filed the present appeal, assailing the awardpassed by the Tribunal below on two grounds viz:

(1) That the compensation granted by the Tribunal is not just andreasonable and requires enhancement.reasonable and requires enhancement.

(2) That the Tribunal went wrong in holding that the thirdrespondent/insurance company is not liable to paycompensation to the claimants.

6. POINT No.1:As regards the compensation, though the age ofthe deceased was mentioned as 33 years in Ex.A.2-inquest reportand Ex.A.3-postmortem report, the learned Tribunal considering thefact that in the first information report his age was mentioned as 38years and also taking into account of the admission made by PW.1,the wife of the deceased in the cross examination that her husbandwas aged 36 years, arrived at the conclusion that the age of thedeceased was between 36 to 40 years on the date of accident. Thesaid finding was arrived at by the learned Tribunal basing on theadmission of PW.1, who must be aware of the actual age of thedeceased, and thus needs no interference in this appeal.

7. The learned Tribunal also rightly considered the income of thedeceased, who was a goldsmith at Rs.3,900/- per month. Since theapproximate age was considered by the Tribunal rightly between 36to 40 years, it rightly applied multiplier and granted compensation ofRs.5,31,200/- with interest @ 7.5% per annum from the date ofpetition till the date of realisation. This Court will interfere with thequantum of compensation only when the same is not properlycomputed and is not just and reasonable. Since the approximate ageand income were considered by the Tribunal and the compensationgranted is fairly reasonable, the quantum of compensation does notrequire any interference in this appeal. The point is therefore,answered against the claimants.

8. POINT No.2:As regards the liability of the insurance company,the contention advanced on behalf of the insurance company beforethe Tribunal as well as in this appeal is that Ex.B.1 – policy wasissued under a private car policy, but at the time of accident the

deceased was being carried in the vehicle for hire. The insured,therefore, violated the terms and conditions of the policy, and as suchthe third respondent is not liable to pay compensation. It is alsocontended that the vehicle was used for carrying passengers on hire,the driver shall possess a transport driving license with badge. But,the driver of the offending vehicle was only having non-transportdriving license without any badge and as such, the owner of thevehicle violated the terms and conditions of the permit and thus, theinsurance company is not liable to pay compensation. The learnedTribunal below accepted the contention of the insurance companyand held that the insurance company is not liable to paycompensation to the claimants and consequently fastened the liabilityto pay compensation on the insured alone.

9. The said finding is assailed by the claimants in the presentappeal. There is no dispute about the fact that the offending vehiclewas insured under a comprehensive policy. Though the claimantscontended that the deceased had not travelled in the said vehicle asa passenger for hire, the admission made by PW.1, the wife of thedeceased and PW.2, the eyewitness to the accident in the evidencebefore the Tribunal is clear to the effect that the deceased and otherstook the offending vehicle on hire for the purpose of going to thetemple for attending pooja. In my view, because of the said clearadmission it is not open for the claimants now to contend that the carwas not taken on hire.

10. Further question therefore, would be even if the car was takenon hire by the deceased and others whether the insurance companyis still liable to pay compensation to the claimants in view of the factthat the policy under which the vehicle was registered is acomprehensive policy.

11. I n KAMALA MANGALAL VAYANI AND OTHERS v UNITED INDIA INSURANCE COMPANY LTD. AND OTHERS[[1]]

the Supreme Court held as follows:

“Once it was established that the vehicle wascomprehensively insured with the insurer to cover thepassenger risk, the burden to prove that it was not liable inspite of such a policy, shifted to the insurer. The claimants arenot expected to prove that the vehicle had a valid permit, norprove that the owner of the vehicle did not commit breach ofany of the terms of the policy. It is for the insurer who deniesits liability under the policy, to establish that in spite of theComprehensive Insurance Policy issued by it, it is not liable onaccount of the requirements of the policy not being fulfilled.”

12. As in the case before the Supreme Court, in the instant case,the insurance company failed to establish that the insured committedbreach of any terms and conditions of the policy. In this case, theowner of the offending vehicle remained ex-parte and the insurancecompany did not take any steps to summon the owner of theoffending vehicle to confront him on the point that the vehicle wasused contrary to the permit, terms and conditions of the policy.

13. I n UNITED INDIA INSURANCE COMPANY LTD.

KALAWATHI AND OTHERS[[2]]Division Bench of Karnataka High Court held as follows:

“From the standpoint of the insurer, it makes no differencewhether the inmate is a paid passenger or gratuitouspassenger. When the policy issued is a ComprehensivePolicy covering risk of the inmates of a private vehicle, theinsurer cannot avoid liability on the ground that the inmate is apaid passenger. In that view, we hold that the terms in thepolicy, which discriminate the liability of the insurer for the paidinmate and gratuitous inmate, are discriminatory and illegal.”

14. In the cross examination, RW.1, the Development Officer,Administration in respondent No.3/insurance company admitted thatEx.B.1-policy covers the risk of the third party. The learned counselappearing for the appellants/claimants brought to the notice of this Court that the circular dated 16.11.2009 was issued by the InsuranceRegulatory and Development Authority. In the said circular,instructions were issued to the insurers to the effect that the liability ofthe insured in respect of the occupants carried in a private car/pillionrider carried in a Two-Wheeler under Standard Motor Package policy(also called comprehensive policy) the insurers shall indemnify in theevent of accident caused by or arising out of the use of the saidvehicles insured under a Comprehensive Policy. Therefore, in viewof the circular issued by the IRDA, the insurance company is liable toindemnify the owner of the vehicle, in case of a comprehensivepolicy, notwithstanding the fact that the policy issued is for a privatevehicle and passengers were carried in the said vehicle for hire.

15. In view of the above, the finding of the learned Tribunal thatthe insurance company is not liable to pay compensation is set asideand it is held that the owner and the third respondent/insurancecompany are jointly and severally liable to pay compensation to theappellants/claimants. This point is answered in favour of theappellants and against the third respondent/insurance company.

16. The appeal filed by the appellants/claimants is therefore,partly allowed. There shall be no order as to costs.

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Date: 28.12.2012 R. KANTHA

RAO, J kvrm

[1]2010 ACJ 1441

[2]IV (2011) ACC826(DB)

DATED: 28.12.2012