Ramu Jal v. Govind Tandi

: Mr. Amiyakant Tiwari, Advocate For Res. No. 3/ Insurance Company : Ms. Shrishti Upadhyay, Advocate Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board

29.08.2024

1. The present appeal under Section 173 of the Motor Vehicle Act, 1988 has been filed by the claimants for enhancement of the compensation amount as well as the liability to pay the compensation amount upon the Insurance Company and the same has been filed against the impugned award dated 13/07/2016 passed by Principal Motor Accident Claims Tribunal, Raipur in Claim Case No. 368/2015 whereby the amount of Rs. 3,87,000/- has been awarded in favour of the claimants and the liability to pay the compensation is fasten upon the owner and driver of the offending vehicle.

2. The facts of the case in brief are that the the deceased Indra Jal was going along with Govind Tandi on his Motor Cycle bearing registration no. CG/04/KZ/3973 on 15/01/2015. At about 11 pm when they reached near Murra Bhhatti, the vehicle was got jumped in speed breaker by which the deceased fell down from the motor cycle and she received injuries on her body. She immediately taken to Mekahara Hospital, Raipur and during treatment she died on 16/01/2015. The matter was reported to the Police and FIR under Section 304 A of the IPC has been registered against the Non applicant No. 1, who was the driver of the motor cycle.

3. The claimants who are the husband and son of the deceased have filed claim case on account of death of the deceased Indra Jal on the motor accident with the pleading that the deceased Indra Jal was working as Maid servant and earning Rs. 6000/- per month. The claimants were dependent upon the income of the deceased and therefore they claimed total Rs. 12,30,000/- on various heads as compensation.

4. The non applicant Nos. 1 and 2 have contested the claim and filed their written statement with the pleading that the driver of the motor cycle was driving with every care but some lubricant oil was dropped in the road by which he could not control his balance and thereby they fell down from the motor cycle and during treatment the deceased has died. On the date of accident, the driver of the vehicle was having valid and effective driving licence and therefore, the liability to pay the compensation is upon the insurance company.

5. The non applicant No. 3 Insurance Company has also filed his written statement and has submitted that the deceased was a pillion rider and her risk was not covered in the insurance policy because no separate premium for pillion rider was taken in the said insurance policy. It is also submitted that the deceased Indra Jal does not comes under the definition of third party and therefore the insurance company is not liable to pay any compensation. It is also pleaded that at the time of accident driver of the offending vehicle was not having any valid and effective driving licence and therefore, prayed for dismissal of the claim case.

6. On the pleadings made by the respective parties the learned claims tribunal has framed five issues and after recording evidence of the parties and hearing them, passed the award on 13/07/2016 and awarded Rs. 3,87,000/- in favour of the claimants on various heads and the liability to pay the compensation is fasten upon the owner and driver of the offending vehicle. The said award is under challenged in the present appeal.

7. Learned counsel for the appellant would submit that the deceased was working as maid servant and earning Rs. 6000/- per month at the time of accident. The learned Claims Tribunal has assessed the monthly income of the deceased as Rs. 3000/- which is in lower side. At least the learned Claims Tribunal should have taken into consideration minimum wages prevailing on the date of accident which comes to about Rs. 5,100/- and the same may be taken into consideration for assessment of the compensation amount. He would further submit that as per the judgment passed by the Hon’ble Supreme Court in Smt Sarla Verma and others Vs Delhi Transport Corporation and others reported in AIR (2009) SC 3104, the future prospects should also have been calculated while assessing the compensation amount. He would further submit that in conventional head also lower amount has been awarded by the learned Claims Tribunal, which also needs to be enhanced suitably. He would further submit that the Insurance Company has been exonerated on the ground that the deceased was a pillion rider and no premium was paid for pillion rider in the insurance policy and therefore the risk of the pillion rider was not covered by the said insurance policy and therefore the Insurance Company is not liable to pay any compensation. However, the present insurance policy (Ex-D/1) is the package policy in which the premium for own damage as well as third party was paid by the owner of the vehicle. The deceased was a pillion rider who comes under the definition of third party and therefore due premium for third party has duly been paid by the owner of the vehicle and the insurance policy which is the package policy has duly covered the risk of the pillion rider also. Therefore, the liability should be fasten upon the Insurance Company to pay the compensation amount.

8. On the other hand learned counsel for the respondent No. 3 Insurance Company would submit that there is no documentary evidence with respect to the income of the deceased and therefore learned Claims Tribunal has rightly assessed the monthly income of the deceased which is not required to be modified or enhanced. She would further submit that since the deceased was the pillion rider and does not comes under the definition of third party and no separate premium for pillion rider was paid by the owner of the vehicle and therefore the risk of the pillion rider has not been covered in the Insurance Policy and therefore, the Insurance Company is not liable to pay any compensation.

9. I have heard learned counsel for the parties and perused the record.

10. Barring the oral evidence of the claimants, no document with respect to the provision or income of the deceased has been filed. However, looking to the date of incident, nature of job and minimum wages prevailing on the date of incident, this Court is of the view that Rs. 5100/- can safely be taken as monthly income of the deceased at the time of her death.

11. In light of above, and taking guidance from the decisions of Hon'ble Supreme Court in cases of National Insurance Company Limited v. Pranay Sethi and Others (2017) 16 SCC 680, Magma General Insurance Company Limited v. Nanu Ram Alias Chuhru Ram and Others (2018) 18 SCC 130 and in case of Smt Sarla Verma and others Vs Delhi Transport Corporation and others (2009) 6 SCC 121, this court is recomputing the compensation as below: Monthly income of the deceased Rs. 5100/- 25% of the income towards Rs. 1275/- future prospects Total income Rs. 6375/- Total yearly income Rs.76,500/- Deducting personal expenditure Rs. 76,500 - Rs. 25,500 (1/3th) Rs. 51,000/- Multiplier of 13 applied to assess Rs. 51000 X 13 total loss of dependency Rs. 6,63,000/- Spousal and filial Consortium total- Rs. 80,000/- Loss of funeral expenses Rs. 15,000/- Loss of estate Rs. 15,000/- 10% enhancement of the Rs. 16,000/- consortium amount in every three years. Total compensation Rs. 7,89,000/- (6,63,000 + 80,000 + 15,000 + 15000 + 16,000)

12. Thus, the amount of compensation of Rs. 3,87,000/- awarded by the Claims Tribunal is now enhanced to Rs. 7,89,000/-. The amount of compensation shall carry interest @ 6% per annum from the date of claim application till its realization. The impugned award stands modified to the extent indicated herein above.

13. The next question with respect to liability to pay the compensation amount, learned counsel for the appellants would submit that the deceased was the pillion rider. The insurance policy (Ex-D/1) is the package policy and the premium of Rs. 587.35 was paid for basic OD cover and the premium of Rs. 422 was paid for basic third party cover. Since, it is a package policy and therefore, the deceased who comes under the definition of the third party, her risk is covered by the said insurance policy and the liability to pay the compensation is upon the Insurance Company.

14. In the matter of National Insurance Company Ltd. Vs. Balakrishnan and Anr. reported in 2013 (1) T.A.C. 1 (S.C.), the Hon’ble Supreme Court has considered the liability for occupants of the vehicle in ‘Act Policy’ and ‘Comprehensive/ Package Policy’. In Para 21, the Hon’ble Supreme Court has held that as under:- “21. In view of the aforesaid factual position, there is no scintilla of doubt that a "comprehensive/package policy" would cover the liability of the insurer for payment of compensation for the occupant in a car. There is no cavil that an "Act Policy" stands on a different footing from a "Comprehensive/Package Policy". As the circulars have made the position very clear and the IRDA, which is presently the statutory authority, has commanded the insurance companies stating that a "Comprehensive/ Package Policy" covers the liability, there cannot be any dispute in that regard. We may hasten to clarify that the earlier pronouncements were rendered in respect of the "Act Policy" which admittedly cannot cover a third party risk of an occupant in a car. But, if the policy is a "Comprehensive/Package Policy", the liability would be covered. These aspects were not noticed in the case of Bhagyalakshmi (supra) and, therefore, the matter was referred to a larger Bench. We are disposed to think that there is no necessity to refer the present matter to a larger Bench as the IRDA, which is presently the statutory authority, has clarified the position by issuing circulars which have been reproduced in the judgment by the Delhi High Court and we have also reproduced the same.”

15. The Hon’ble Division Bench of this Court, in the matter of Oriental Insurance Company Ltd. Vs. Kamta Prasad Sahu and Ors. order dated 06/05/2021 passed in MAC No. 618/2013 has held in Para 8 as under:- “8. The law is well settled that the pillion rider travelling on a two-wheeler is not entitled to get any compensation or coverage under the ‘Act only policy’ i.e. policy issued strictly to meet the requirements under Section 147 of the Act. It is also settled law that, by virtue of the relevant Circulars/ Notifications issued by the IRDA in the year 2009, the scope of which has already been discussed and explained by the Apex Court on many a time, that the position is different if the policy is a ‘Comprehensive or Package policy’, not being an ‘Act only policy’. We have gone through the ‘Certificate of Insurance-cum-Policy Schedule’, which forms part of the evidence adduced before the Tribunal. The policy shows that it was issued as a ‘Package policy’ and not an ‘Act only policy’, for the period from 02.09.2010 to 01.09.2011 (very much in existence on the date of accident). The Appellant/ Insurer has fixed the ‘Basic Own Damage Premium’ in respect of the motor-cycle as Rs. 419/- and after giving ‘Discount/No Claim Bonus’, the actual premium payable under the Head (A) own damage was shown as Rs. 207/-. In respect of the third party liability (Head B), the premium was fixed as Rs. 300/- and the personal accident coverage premium for Owner/ Driver was fixed as Rs. 50/-. The total premium was fixed as Rs. 557/- and adding the service tax of Rs. 57 and stamp duty of Rs. 0.50, the grand total premium was fixed as Rs. 614/-. Thus, the above policy was issued collecting appropriate extent of premium to cover the risk as a ‘Package Policy’; which very muck takes in the liability in respect of the pillion rider travelling on the above vehicle. In the above circumstances, the appeal is not maintainable on this ground.”

16. Considering the submissions made by learned counsel for the parties, further considering the above said judgments passed by Hon’ble Supreme Court as well as by Hon’ble Division Bench of this Court, I am of the opinion that the deceased who was the pillion rider in the motor cycle is the third party for which the premium of Rs. 422 has been paid and the Package Insurance Policy has been issued in favour of the owner of the vehicle which duly covers the risk of the pillion rider by the said package policy. Therefore, the Insurance Company is held liable to pay the compensation amount to the claimants.

17. In the result, the appeal is allowed. The amount of compensation enhanced as indicated hereinabove and the liability to pay the compensation amount is fasten upon the respondent No. 3/ Insurance Company.

18. The Insurance Company is directed to deposit the amount of compensation within a period of 60 days from today. On such being deposit the compensation amount, the amount of Rs. 4 lakhs (2 lakhs to each claimants) shall be deposited in the FDR in any nationalized bank for a period of three years. The remaining amount shall be paid to the appellants/claimants in equal proportion through Bank transaction/account payee cheque.

19. Consequently, the appeal is partly allowed.

20. No order as to costs. Sd/- (Ravindra Kumar Agrawal) JUDGE Sagrika