Allahabad High Court
Smt. Sushma And Others vs New India Assurance Co. Ltd. on 17 May, 2019
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Reserved on 10.1.2019
Delivered on 17.5.2019
Case :- FIRST APPEAL FROM ORDER No. - 3414 of 2006
Appellant :- Smt. Sushma And Others
Respondent :- New India Assurance Co. Ltd.
Counsel for Appellant :- Ravi Agarwal
Counsel for Respondent :- N.K.Srivastava,Rajeev Chaddha
Hon'ble Saral Srivastava,J.
1. Heard Sri Ravi Agarwal, learned counsel for the appellants and Sri Rajeev Chaddha, and Sri N.K. Srivastava, learned cousnel for the respondent.
2. The present appeal has been preferred by the claimants-appellants against the judgment dated 12.9.2006 passed by the Motor Accident Claims Tribunal /Additional District Judge, Court No. 4, Meerut, whereby the Tribunal has dismissed the claim petition of the claimants-appellants.
3. The appellants instituted a claim petition under Section 163-A of the Motor Vehicles Act, 1988 praying for a compensation of Rs.11,00,000/- for the death of one Shiv Kumar. It is stated that Shiv Kumar was owner-cum-driver of vehicle Mahindra Jeep bearing registration No. U.P. 12H 3941 (herein after referred as "Jeep") and while he was driving the jeep on 22.6.2004 at about 11 A.M., a cow suddenly came in front of jeep and in order to save the cow, the jeep collided with a tree. As a result of the said accident Shiv Kumar suffered injuries and died. It was further stated that deceased was aged about 26 years and was earning about Rs.5,000/- per month.
4. The aforesaid claim petition was contested by the New India Insurance Company by filing written statement contending therein that the claim petition has been filed on incorrect facts. It further pleaded that the liability of the insurance-company is subject to the terms and conditions of the policy and compensation prayed by the appellant is excessive and without any basis.
5. On the basis of pleadings between the parties, the Tribunal framed four issues.
6. On the issue of occurrence of the accident and driving license, the Tribunal returned a finding in favour of the appellant, but while deciding the issue as regards the quantification of compensation, the Tribunal noticed the terms and conditions of the policy and found that the deceased being owner of the vehicle was covered under the policy only up to Rs.2,00,000/- which has been paid by the insurance-company to the respondents and consequently, the Tribunal dismissed the claim petition.
7. Challenging the aforesaid finding, learned counsel for the appellant has contended that the policy of the vehicle was a comprehensive policy and deceased was occupant of the vehicle and since occupant of the vehicle are covered under the insurance policy, therefore, the liability of the insurance-company is unlimited and not restricted upto Rs.2,00,000/-. In this regard he has placed reliance upon a judgment of the Apex Court in the case of National Insurance Company Ltd. Vs. Balakrishnan & Another 2013 (1) SCC 731.
8. Per contra, learned counsel for the insurance company submitted that a perusal of the insurance policy indicates that a premium of Rs.100 has been paid for covering the risk of the owner-cum-driver up to Rs.2,00,000/- and since, the coverage of the deceased under the policy is only up to Rs.2,00,000/-, the Tribunal has not committed any illegality in rejecting the claim of the appellant as the insurance company has already paid Rs.2,00,000/- which has been its liability under the policy to the appellant. Thus, the appeal is liable to be dismissed. In support of his contention he has relied upon the judgment of the Apex Court in the case of National Insurance Company Limited Vs. Ashalata Bhowmik and others 2018 (9) SCC 801 and Dhanraj Vs. National India Assurance Company Limited 2004 (8) SCC 533.
9. I have considered the rival submissions of the parties and perused the record.
10. It is not in dispute that the deceased was the owner of the jeep and died due to injuries suffered by him in the accident of the said jeep.
11. The only issue which arises for consideration in this appeal as to whether the insurance company can be made liable to pay more amount than what it has agreed under the insurance policy to pay in case of death of owner of the jeep.
12. The Apex Court in the case of Dhanraj (supra) has dealt with a situation where the policy in question was a comprehensive policy and after interpreting the various clauses of the policy, the Apex Court had held that since the policy did not cover any risk for injury to the owner of the jeep, therefore, the insurance company is not liable to pay compensation.
13. In a recent judgment of the Apex Court in the case of Ashalata Bhowmik (supra), the Apex Court held that since the indemnification is extended to the personal accident of the deceased up to Rs.2,00,000/- under the contract of insurance, therefore, the claimants are entitled for the said amount as compensation. Para 9 of the aforesaid judgment is extracted herein below:
"9. Therefore, the High Court was not justified in directing the appellant/insurer to pay the compensation determined by the Tribunal. Since the indemnification extended to personal accident of the deceased is limited to Rs. 2,00,000/- under the contract of insurance, the respondents are entitled for the said amount towards compensation. Hence, the appellant is directed to deposit the said sum of Rs. 2,00,000/- with interest @ 9 per cent per annum from the date of the claim petition till the date of deposit with the Tribunal within a period of four weeks from today."
14. Thus from the aforesaid judgment, it is clear that the liability of the insurance company is governed by the terms and conditions of the insurance policy and the insurance company cannot be asked to pay more than what it has undertaken to pay in case of death or injury to the owner under the insurance policy.
15. In the present case, the perusal of the insurance policy clearly reveals that insurance company has charged Rs.100/- towards compulsory personal accident of the owner/driver covering the risk upto limit of Rs.2,00,000/- which according to the insurance company it has paid to the appellant. This fact is not disputed by the appellant.
16. The judgment of the Apex Court in the case Balakrishnan (supra) relied upon by the learned counsel for the appellant, is not applicable in the facts of the present case inasmuch as, the said case has been rendered in a context where a third party who was occupant of the vehicle in question had died and the Apex Court after interpreting the terms and conditions of comprehensive/ package policy held that the insurance company is liable to pay compensation, to the dependents of deceased who was not the owner of vehicle. The judgment of the Apex Court in the case of Balakrishnan (supra) is of no help to the appellant.
17. Thus, for the reasons given above, the appeal lacks merit and is accordingly, dismissed.
Order Date :- 17.5.2019
Ishan
