Case: Oriental Insurance Company Limited Vs. Meena Tukaram Jadhav &amp; Others

he Oriental Insurance Company Ltd the insurer of the truck filed a written statement contending that the accident occurred due to rash and negligent driving on the part of the driver of the auto rickshaw. The National Insurance Company Limited, the insurer of the auto rickshaw, filed a written statement contending that the accident took place on account of rash and negligent driving of the driver of the truck. By the impugned Award dated 5th August 2011, the learned Member of the Tribunal held that there was negligence on the part of the drivers of both the vehicles. The learned Member directed that the apportionment of the liability between theOriental Insurance Company Limited and the National Insurance Company Limited shall be made in the proportion of 80:20. In the said claim, the compensation of Rs.1,36,150/was granted to the claimant with interest thereon at the rate of 7.5% per annum from the date of filing of the claim petition till realization. First Appeal No.573 of 2013 filed by theOriental Insurance Company Limited takes an exception to the said Judgment and Award.5. First Appeal no.700 of 2013 is filed by the Oriental Insurance Company Limited for challenging the Judgment and Award dated 6th August 2011 in Claim Application No.756 of 1999 which was filed by one Mrs. Subha Rajan Desai (formerly known as Priya Pramod Borkar) who was the occupant of the auto rickshaw. She is the widow of Pramod Borkar who died in the same accident. She claimed compensation of Rs.3,00,000/on account of injuries sustained by her. Similar contentions were raised by the insurers of the vehicles which were raised in the claim petition filed by Meena Jadhav. The Tribunal granted compensation of Rs.1,85,680/together with interest thereon at the rate of 7.5% from the date of filing of the claim petition till the payment of compensation amount.6. First Appeal No.1369 of 2012 filed by the Oriental Insurance Company Limited takes an exception to the Award dated 4th August 2011 in claim petition no.757 of 1999 filed on behalf of minor Prachi through her mother and natural guardian Mrs.Subha Rajan Desai. Injured Prachi is the minor daughter of deceased Pramod. Identical defences were raised by both the insurance companies to the claim petition. Total compensation of Rs.65,000/has been granted by the Tribunal with interest thereon at the rate of 7.5% pa.7. First Appeal No.1630 of 2012 has been preferred by the Oriental Insurance Company Limited for challenging the Judgment and Award dated 3rd August 2011 passed by the learned Member of the Tribunal in claim petition No.755 of 1999 filed claiming compensation on account of death of the said Pramod Borkar. The claim petition has been filed by Priya, (nee Mrs.Subha Desai) the widow, her two minor daughters, herlaw (unmarried sister of deceased Pramod). Defences which are similar in the companion petitions were raised by both the insurers. The total compensation of Rs.28,70,740/together with interest thereon at the rate of 7.5% pa was granted under the impugned Judgment and Award. Claim of Rs.60,00,000/was made in the said claim petition. In this appeal, there is a Cross Objection Stamp No.29695 of 2013 filed by the first to third claimants claiming enhancement in the compensation to the extent of Rs.22,70,740/filed by the claimants.

Court's reasoning:
15. This finding will have to be appreciated in the light of the fact that the widow of deceased Pramod stated in herthat the truck came on its wrong side. She deposed that at that time, the truck was being driven in a very high speed. From deposition it is clear that the auto rickshaw was being driven on its correct side at the time of impact. On the other hand, no attempt has been made by theto examine the driver or cleaner of the offending truck insured with it. In fact, an adverse inference ought to have been drawn against the appellant for not examining the driver of the truck. There is a passing observation made by the learned Member that as the truck is a larger and heavier vehicle than the auto rickshaw, the driver of the truck owes more duty and responsibility to take proper care and caution. Even if we ignore this observation, for the reasons which we have set out, no fault can be found with the apportionment of liability between the two insurance companies made by the Tribunal. We must also note that both the insurance companies are the Government of India Undertakings and therefore, we fail to understand the relevance of this dispute between the two companies on the apportionment.Thus, in the case of an ordinary life insurance, if on account of death of person in a motor accident, the legal representatives receive the amount under the policy, the same cannot be excluded as such benefit has no correlation to the accidental death. The said amount would have come to the legal representatives even in the case of natural death. But if the employee is insured by his employer against injury or death arising out of an accident, any amount received under such policy on accidental death would be liable for deduction from compensation. This law laid down in the case of Helen Rebello has not been disturbed by the Apex Court in the subsequent decision in the case of Sunil Sharma and others.23. In the facts of the case, in the cross examination of Mr. Venugopal what is brought on record is that there is a group insurance scheme for the employees of the SCI. The entire premium is paid by SCI which was not recovered from its employees. In the said scheme, a sum of Rs.14,00,000/was received by the legal representatives of the deceased Pramod. Mr. Venugopal in the cross examination stated that the legal representatives of the deceased received the said amount "Purely on account of his death in accident under the Group Insurance Scheme". Surprisingly, there was noof the witness made by the Advocate for the claimants for obtaining a clarification whether the insurance was an accident insurance or general insurance. Even the policy of insurance is not placed on record by the claimants. The statement of Mr. Venugopal is that the amount was received purely on account of death of the deceased in accident which may suggest that the policy was an accident policy. In view of this statement, the burden was on the claimants to prove the contents of the policy. However, the claimants did not produce the policy. Hence, the contention of the Appellant that the sum of Rs.14,00,000/was the pecuniary advantage received by the legal representatives of the deceased on account of accident will have to be accepted. In the circumstances, a sum of Rs.14,00,000/will have to be deducted from the compensation payable to the deceased. Thus, from the aforesaid amount ofa sum of Rs.14,00,000/will have to be deducted. Thus, the total compensation payable will be Rs.Though, the cross objection is preferred by the first to third claimants, the benefit of enhancement will be available to the other claimants as well.