Allahabad High Court
Janhavi vs M/S International Tractors on 19 January, 2021
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 1
Case :- FIRST APPEAL FROM ORDER No. - 1586 of 2020
Appellant :- Janhavi
Respondent :- M/S International Tractors
Counsel for Appellant :- Km. Anjana
Counsel for Respondent :- ,Sushil Kumar Mehrotra
with
Case :- FIRST APPEAL FROM ORDER No. - 1 of 2021
Appellant :- Janhavi
Respondent :- M/S International Tractors And Another
Counsel for Appellant :- Km. Anjana
Counsel for Respondent :- Sushil Kumar Mehrotra
Hon'ble Vivek Agarwal,J.
Order in FAFO No. 1586 of 2020
Ms. Anjana, learned counsel for the appellant and Sri Sushil Kumar Mehrotra, learned counsel for the respondent.
These appeals have been filed by the appellant being aggrieved of award dated 10.8.2020 passed in MACP No. 06 of 2017 and MACP No. 7 of 2017 respectively on the ground that Claims Tribunal has arbitrarily rejected the claim of the claimants without taking into consideration fact of the matter that policy in question is package policy and therefore risk is covered.
Claims Tribunal held that mother of the claimant cannot be treated as 3rd party as she was not having any independent existence different from that of Rajiv Jha on whom she was dependent and, therefore, as car was being driven by Rajiv Jha so wife of Rajiv Jha cannot be considered to be an independent person.
Sri Mehrotra fairly submits that this policy being a package policy thus Company has undertaken to pay compensation at the rate of 100% in case of death and that being the case the Claims Tribunal has wrongly rejected the claim petitions overlooking the status of the deceased i.e. mother of the claimant as independent 3rd party. It is also admitted that as per provisions contained in the policy as per Sec (iii) cover for owner or driver is also to the extent of 100% in case of death and therefore, claim deserves to be allowed.
There is a decision of the Supreme Court on this issue of comprehensive / package policy in case of National Insurance Co. Ltd Vs. Balakrishnan as reported in 2013 (1) TAC 1 (SC). In this judgment, the Supreme Court has drawn distinction between the 'Act Policy' and "Comprehensive/Package Policy" and has laid down the parameters of liability in case if policy is "Comprehensive/Package policy", it has been held that if the contract of insurance is under a comprehensive / package policy then it would cover the liability of insurer for payment of compensation for occupant in a car. Since in the present case, it is admitted that policy in question is a comprehensive/package policy, relying on the judgment of the Supreme Court in case of Balakrishnan (Supra) third party is covered, the appeal deserves to be allowed and is allowed. In fact view of the learned Tribunal is chauvinistic and has failed to appreciate independent existence of a women, other than as a wife, daughter or mother.
Instead of remanding the matter to the Tribunal, looking to the fact that claimant lost her both the parents and is at present of the age of 10 years, it will be desirable to compute compensation as per parameters mentioned in the award, or modifying them suitably as per the law in vogue.
Income of deceased Vibha Jha has been reported to be Rs. 3300/- per month on the date of accident which took place on 25.3.2016, who died on 27.3.2016 at Medenta Hospital. This income of the deceased on the date of the accident needs to be computed in terms of the minimum wages on the date of accident i.e. 25.3.2015 in asmuch as income of a home maker cannot be under-estimated merely because home maker was not formaly employed. As per minimum wages for a skilled labourer, wages effective from 1.10.2015 to 31.1.2016 are to the tune of Rs. 8397/- per month or Rs. 100764/- per annum then 1/3rd deduction is to be made taking annual dependency to Rs. 67,176/- per annum. Looking to the age of the deceased at the time of the accident which is admitted to be 30 years, 40% amount is added towards future prospects then total annual dependency will come to the tune of Rs. 94046/-. Multiplier of 17 will be applicable taking total pecuniary compensation to Rs. 15,98,782/-. Over and above this amount there will be an addition of Rs. 30,000/- under the head of non pecuniary compensation taking total to Rs. 16,28,782/- to which claimant will be entitled alogwith interest at the rate of 7% from the date of filing of the claim petition.
It is further directed that out of above awarded sum i.e. 15,98,782/-, a sum of Rs. 14,00,000/- alongwith accrued interest be invested in a fixed deposit receipt of a scheduled Bank in such a manner that Rs. 5,00,000/- each is invested in one Bank in part for a period till the claimant (minor) attains the age of majority, when she will be free to use this money for her higher education or other purposes.
In above terms, FAFO No. 1586 of 2020 is disposed of.
Order in FAFO No. 01 of 2021.
It is directed that since it is injury case and Claims Tribunal has not discussed the nature of injuries sustained by the claimant, amount spend by her or her guardian on her treatment, therefore, it will be appropriate to remand the matter to the concerned Claims Tribunal with further direction to deal with the matter on its own merit and if need be permit the claimants and the Insurance Company to lead additional evidence and decide the claim within a period of 3 months from the date of receipt of the award. Registry in addition to the counsel for the appellant is directed to supply copy of the order passed today to the Claims Tribunal within 15 days from today.
Order Date :- 19.1.2021
S.K.S.
