HIGH COURT OF CHHATTISGARH AT BILASPUR DIVLSIONBENCH CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI RANGNATH CHANDRAKAR, J. Misc. Appeal (C) No. 1619 of2009 Appellant (Claimant) i\ Respondents Non-applicants 1 2 h-! Smt. Meena Agarwal, w/o Mohanlal Jain, 36 years, r/o Bhairamdev Ward, Jagdalpur, distt. Bastar C.G. VERSUS Purnima Tiwari s/o vijay Prakash Tiwari, 32 years, Vijay Prakash Tiwari, S/o Mathura Prasad Tiwari, 55years, Respondent No.1 & 2 r/o Hikmi Para, Jagdalpur, Distt Bastar (CG) The Oriental Insurance Co. Ltd., Branch Jagdalpur, distt. Bastar C.G. Ratanlal Jain, s/o Keshavlal Jain, r/o Bhairamganj Para, Jagdalpur, distt. Bastar C.G. 5 The New India Insurance Co. Ltd., Branch Jagdalpur, distt. Bastar C.G. Memo of appeal under Section 173 of Motor Vehicle Act Present: Shri Prafull Bharat, counsel for the appellant. None for rgspondents No.1 & 2 though served. Shri H.P. Agrawal, counsel for respondent No.3. Shri Goutam Khetrapal, counsel for respondent No.4. Shri Shreekumar Agrawal, Senior Counsel with Shri Anand Gupta, counsel for respondent No.5. QRDER 7th (17InAugust,2011) "'W}^^ ^3^\\ "J<1%^' S|». .e' ,..f .^ M.A.(C)No. 1619 of 2009 .^7 The following order of the Court was passed by Rajeev Gupta, C.J. Appellant/ claimant Smt. Meena Agarwal is seeking enhancement of the compensation awarded by the First Additional Motor Accident Claims Tribunal, Jagdalpur (for short 'the Tribunal') vide award dated 22.09.2009, passed in Claim CaseNo. 115/2003. 2) As against the compensation of Rs.8,00,000/- claimed by the appellant/ claimant by filing a claim petition under Section 166 of the Motor Vehicles Act for the injuries sustained by her in the motor accident on 17.01.2003, the Tribunal awarded a total sum of Rs.2,58,731/- as compensation along with interest @ 7.5% per annum from the date of filing of the claim petition till the date of actual payment. 3) The Tribunal OR a close scrutiny of the entire evidence led before it held that claimant Smt. Meena Agarwal sustained multiple serious injuries in the motor accident on 17.01.2003; the drivers of both the vehicles i.e. unregistered Marshall Jeep bearing Engine No.AC-24-K-65760 and Chasis No. 22-K-53187 and Indica Car bearing registration No.C.G.05/4060 equally contributed to the accident and as such, their negligence was to the extent of 50% each; as the unregistered Marshall Jeep was insured with the Oriental Insurance Company Limited and the Insurance Company could not establish any breach of the policy conditions, the Oriental Insurance Company Limited was liable to pay 50% of the compensation assessed to the claimant; though ;^^ y' M.A.(C)No.1619of2009 \c '^ti the other vehicle Indica Car was insured on the date of the accident with the New India Insurance Company Limited, but the nature of the injuries sustained by the claimant was not covered under the insurance policy, the New India Insurance Company Limited was not liable to pay the remaining 50% of the compensation assessed to the claimant and the liability in that behalf was of the owner-cum-driver of the Indica Car. 4) The Tribunal considering the number and nature of the injuries proved to have been sustained by the claimant in the motor accident awarded Rs.2,16,000/- towards loss in the future earning capacity; Rs.22,431/- towards medical expenses; Rs.5,300/- for conveyance; Rs.5,000/- for attendant; Rs.5,000/- for pain and suffering; and Rs.5,000/- for special diet. The Tribunal, thus, assessed the total compensation payable to the claimant at Rs.2,58,731/-. As the Oriental Insurance Company Limited, the insurer of the unregistered Marshall Jeep was found liable to the extent of 50% of the compensation assessed, the Tribunal directed the Oriental Insurance Company Limited to pay Rs.1,29,365/- as compensation to the claimant. The remaining sum of Rs.1,29,365/- was directed to be paid by the owner-cum- driver of the Indica Car. The Tribunal further directed payment of interest on the above amount of compensation of Rs.2,58,731/- @ 7.5% per annum from the date of filing of the claim petition till the date of actual payment. 5) Shri Prafull Bharat, learned counsel for the appellant submitted that the Tribunal has erred in exonerating respondent M.A.(C)No. 1619 of 2009 ^eaa^ No.5, the New India Insurance Company Limited, the insurer of the Indica Car from its liability to pay 50% ofthe compensation to the claimant as the Indica Car was insured as a private car under a package/ comprehensive policy and by virtue of IRDA Circular of 2009, the risk of the occupants in a private car insured under a package/comprehensive policy is covered; the Tribunal has further erred in awarding low compensation of Rs.2,58,731/- only. 6) Shri Shreekumar Agrawal, learned Senior Counsel with Shri Anand Gupta, learned counsel for respondent No.5 the New India Insurance Company Limited, the insurer of the Indica Car could not dispute that after issuance of the circular by IRDA in the year 2009, the risk of the occupants in a private car insured under a package/ comprehensive policy is covered and the Insurance Company is liable to pay compensation to the claimant. Learned Senior Counsel, however, submitted that the compensation of Rs.2,58,731/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case and no enhancement of the compensation is warranted in this appeal. 7) Shri H.P. Agrawal, learned counsel for respondent No. 3, the Oriental Insurance Company Limited, the insurer of the unregistered Marshall Jeep supported the award. 8) Shri Goutam Khetrapal, learned counsel for respondent No.4 Ratanlal Jain, owner-cum-driver of the Indica Car in which the claimant was travelling also contended that the Tribunal has M.A.(C)No.1619of2009 (\' ^' ^Niaa^. erred in exonerating the insurer of the Indica Car from its liability to pay compensation to the claimant. 9) Claimant Smt. Meena Agarwal was aged about 36 years on the date of the accident. Though the claimant claimed that she was running some business and was earning Rs.5,000/- per month, no cogent and reliable evidence was led before the Tribunal for establishing that the claimant was running any business at all and that her income from the business was to the extent of Rs.5,000/- per month. The bills and vouchers produced by the claimant before the Tribunal in regard to the medical expenses were to the extent of Rs.22,431/-only and the Tribunal has awarded this entire amount of Rs.22,431/- towards medical expenses. 10) On due consideration of the submissions of learned counsel for the parties; the number and nature of the injuries found to have been sustained by the claimant in the motor accident and the amount proved to have been spent on treatment, we are satisfied that the compensation of Rs.2,58,731/- assessed by the Tribunal cannot be termed as inadequate so as to warrant enhancement in this appeal. We, therefore, do not find any scope for enhancement of the compensation awarded by the Tribunal. 11) So far as the finding recorded by the Tribunal in para 21 of the impugned award leading to exoneration of the New India Insurance Company Limited, insurer of the Indica Car in which the claimant was traveljing is concerned, it is apparent from the ^y^ .^"^ ^C:^^1 1 %§s^-^i ^ -y •^y!^ M.A.(C)No. 1619 of 2009 ^^y insurance policy of the Indica Car that it was a package/ comprehensive policy for a private car. It is not in dispute that by virtue of the circular issued by IRDA in the year 2009, which has been made applicable to the pending appeals also, the Insurance Company is liable to pay compensation to the claimant who is occupant of a private car insured under a package/ comprehensive policy. As in the present case, the claimant was occupant of the Indica Car which was insured under a package/ comprehensive policy, the finding recorded by the Tribunal leading to exoneration of the insurer of the Indica Car is liable to be set aside and is hereby set aside. We hold respondent No.5 the New India Insurance Company Limited liable to pay 50% of the compensation assessed by the Tribunal to the claimant. 12) Learned counsel for the parties submitted that with a view to avoid any possible dispute between the parties about the amount of interest on the balance amount of Rs. 1,29,3657- to be now paid by respondent No.5 the New India Insurance Company Limited to the claimant, the amount of interest may be quantified in this appeal itself. 13) On due consideration of all the relevant aspects of the matter, we quantify the amount of interest on Rs.1,29,365/- at Rs.10,635/-. 14) For the foregoing reasons, the appeal filed by the appellant/ claimant is allowed in part. While maintaining the quantum of compensation of Rs.2,58,731/- awarded by the Tribunal, we hereby set aside that part of the impugned award M.A.(C)No.1619of2009 O^f whereby the Tribunal exonerated respondent No.5 New India Insurance Company Limited, the insurer ofthe Indica Carfrom its liability to pay compensation to the claimant. Respondent No.5 the New India Insurance Company Limited now is directed to pay Rs.1,29,365/- as their share ofthe compensation of Rs.2,58,731/- awarded by the Tribunal to the claimant along with quantified amount of interest of Rs.10,635/- on the amount of compensation ofRs.1,29,365/-. 15) Respondent No.5 the New India Insurance Company Limited is granted three months' time for depositing the total sum of Rs.1,40,000/- (Rs.1,29,365/- as their share of 50% of the amount of compensation of Rs.2,58,731/- awarded by the Tribunal + Rs. 10,6357- as quantified amount of interest on the amount of compensation of Rs.1,29,365/-) before the concerning Claims Tribunal. 16) No order as to costs. Sd/- ChiefJustice Sd/- R.N. Chandrakar Judge subbu