HIGH COURT OF JUDICATURE FOR RAJASTHAN JODHPUR S.B. Civil Misc. Appeal No. 322/2003 1. Smt. [ENTITY] widow of late Punma Ram 2. [ENTITY] d/o late Punma Ram 3. [ENTITY] s/o late Punma Ram 4. [ENTITY] s/o late Punma Ram All residents of Dingar Tehsil Pindwara District Sirohi. Appellants-Claimants no.2 to 4 are minors through their nattural guardian and mother-Smt. Pawani widow of late Shri Punma Ram, appellant-claimant no.1. Appellant Versus 1. [ENTITY] s/o Ganeshan by caste Gaunder r/o Gandhipuram, Sendamangal, Tamilnadu at present Ambu Raj Tubewell and Bore service Transport Nagar, Sirohi. 2. [ENTITY] s/o M. Periyanan by caste Gaunder r/o Transport Nagar, Sirohi. 3. The [ENTITY] Through Divisional Office, Abhay Chambers, Jalori Gate. Jodhpur. Respondents Connected With S.B. Civil Misc. Appeal No. 344/2003 The [ENTITY] Through Divisional Office, Abhay Chambers, Jalori Gate. Jodhpur. Appellant Versus 1. Smt. [ENTITY] widow of late Punma Ram, age 33 years, 2. Miss [ENTITY] d/o late Punama Ram, age 12 years, 3. [ENTITY] S/o Shri Punama Ram, age 10 years, 4. [ENTITY] S/o Shri Punama Ram age 8 years, Respondents No.2to 4 being minor through their natural guardian Mother (Res. No.1) Smt. Pawani W/o Shri Punama Ram, all by caste Heeragar R/o Dinger Tehsil Pindwara, District Sirohi. 5. [ENTITY] S/o Ganesan by caste Tgounder R/o Gandiyapuram, Sindamangal Tamilnadu at present Mobile Bore Services, Transport Nagar, Sirohi 6. [ENTITY] S/o M. Pariyanam by caste Gaunder R/o Transport Nagar, Sirohi. Respondents For Appellant(s) : Mr. [ENTITY] For Respondent(s) : Mr. [ENTITY] HON'BLE MR. JUSTICE SANDEEP MEHTA
(2 of 6) [CMA-322/2003] Judgment 13/09/2019
These two cross appeals have been preferred by the claimants appellants and the insurance company respectively being aggrieved of the judgment-cum-award dated 13.08.2002 passed by the learned Motor Accident Claims Tribunal, Sirohi in [CASE NUMBER], whereby the claim application filed by the claimants under [SECTION] of the [ACT] was partly allowed and they were awarded damages to the tune of Rs.3,22,000/- while holding the non-claimants, being the driver and the owner of the offending vehicle and the insurance company, jointly and severally responsible to satisfy the award.
The insurance company has filed the appeal on the ground that the insurance policy offered only third party risk coverage. The deceased Mr. [ENTITY] was sitting inside the insured jeep and as such, he could not have been termed to be a third party making the insurance company liable to cover the damages.
In support of this contention, Mr. [ENTITY], learned counsel representing the insurance company, relied upon the Supreme Court decision in the case of [PRECEDENT], wherein the Hon'ble Supreme Court considered this very controversy in detail and held that the risk of the person sitting inside or on the vehicle (in case of a two wheeler), would be covered only in case the insurance policy is a comprehensive or a package policy. In case of a third party insurance policy, the liability of the insurance company to cover the risk would arise (3 of 6) [CMA-322/2003] only for the damages caused to a person not sitting in or on the vehicle.
In the said judgment, the Hon'ble Supreme Court has held in para 11 as under :-
"11. In [PRECEDENT], the facts were that a Regional Manager of the company, which was the owner of the vehicle, was himself driving a vehicle of the company and met with an accident and eventually succumbed to the injuries. It was contended by the insurer before this Court that the policy did not cover the employee of the owner who was driving the vehicle while attending the business of the employer- company and the deceased was not a third party in terms of the policy or in terms of the Act. It was also urged that the same would be the position even if the deceased was only travelling in the car in his capacity as a Regional Manager of the owner-company and the vehicle was being driven by the driver. This Court observed that a contract of insurance is ordinarily a contract of indemnity and when a car belonging to an owner is insured with the insurance company and it is being driven by a driver employed by the insured, when it meets with an accident, the primary liability under law for payment of compensation is that of the driver. Once the driver is liable, the owner of the vehicle becomes vicariously liable for payment of compensation. It is this vicarious liability of the owner that is indemnified by the insurer. Dealing with the said liability, the Bench analysed the language employed under [SECTION] of the Act and observed as follows:
"The object of the insistence on insurance under [SECTION] of the Act thus seems to be to compulsorily cover the liability relating to their person or properties of third parties and in respect of employees of the insured employer, the liability that may arise under the [ACT] in respect of the driver, the conductor and the one carried in a goods vehicle carrying goods. On this plain understanding of [SECTION], we find it difficult to hold that the Insurance Company, in the case on hand, was liable to indemnify the owner, the employer Company, the insured, in respect of the death of one of its employees, who according to the claim, was not the driver. Be it noted that the liability is not one arising under the [ACT] and it is doubtful, on the case put forward by the claimant, whether the deceased could be understood as a workman coming within the [ACT]. Therefore, on a plain reading of [SECTION] of the Act, it appears to be clear that the Insurance Company is not liable to indemnify the insured in the case on hand."
In view of the above position of law stipulated in the statute and interpreted by Hon'ble Supreme Court, manifestly, the risk of the deceased, who was sitting in the insured vehicle would not be covered by the third party insurance policy and hence, the appellant insurance company would not be liable to satisfy the award. Thus, the Tribunal erred while holding it jointly and severally responsible to satisfy the award. It is well-settled position of law that in such cases, even a direction to pay and recover cannot be issued.
In this background, the [CASE NUMBER] preferred on behalf of the appellant insurance company deserves to be and is hereby allowed. The impugned award is set aside to the extent that it holds the insurance company liable to satisfy the award jointly and severally with the other non-claimants. However, so far as the amount paid by the insurance company to the claimants under the head no fault liability is concerned, it shall not be permissible for it to recover the same from them and rather it would be free to recover the same from the owner/driver of the insured vehicle.
Now coming to the appeal filed by the claimants, i.e. [CASE NUMBER]. Admittedly, the deceased [ENTITY] was 36 years of age on the date of the incident. The Tribunal assessed the income the deceased to be Rs.3000/- per month. It applied the multiplier of 12 instead of 15 while (5 of 6) [CMA-322/2003] calculating the loss of income and it did not account for future prospects, which would have to be added to the extent of 40%. The Tribunal has awarded a total sum of Rs.34,000/- under the general damages, i.e. loss of consortium, loss of love and affection and funeral expenses. However, in light of the law laid down by the Hon'ble Supreme Court in the case of [[PRECEDENT]]. The claimants are entitled to enhancement in the claim amount in the following terms :-
TOTAL Annual income of the Rs.3000/- X 12 = Rs.36,000 /-
deceased Rs.36,000/- per annum 40% Enhancement of Rs.14,400/- Rs.50,400/- annual income by future prospects 1/3 Deduction from Rs.16,800/- (Rs.50,400 - enhanced income towards Rs.16,800/-) personal expenditure and =Rs.33,600/- needs Multiplier to be applied to @ 15 Rs.5,04,000/- net income Rs.33,600 x 15 General damages, i.e. Rs.70,000/- Rs.70,000/- Loss of consortium, loss of estate and funeral expenses Total compensation Rs.5,74,000/- awardable Amount awarded by Rs.3,22,000/- Tribunal Enhanced Amount Rs.2,52,000/-
The enhanced amount of compensation shall carry the interest at the rate of 7.5% per annum from the date of filing of the claim till the date of disbursal. The claimants shall be entitled to recover the amount of compensation from owner/driver of the (6 of 6) [CMA-322/2003] vehicle involved in the accident. The [CASE NUMBER] is allowed in these terms.
The record be returned to the Tribunal forthwith.
([ENTITY] 17-18-Pramod/-
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