Bombay High Court
New India Assurance Co. Ltd vs Smt. N. Senjilaxmi W on 29 November, 2012
Bench: M.N. Gilani
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
FIRST APPEAL No.534/1997.
New India Assurance Co. Ltd.
Manager, Ooty Main Road, Mettupalam,
Pin Code 641 301, District Coimbator (T.N.),
Through its Divisional Manager,
New India Assurance Co.Ltd.,
Nagpur Divisional Office-II, Udyam,
West High Court Road,
Dharampeth, Nagpur. ..... APPELLANT
ORI. NON-APPLICANT NO.3.
ig VERSUS
1. Smt. N. Senjilaxmi wd/o late K. Natrajan,
aged about 28 years, Household,
r/o Arya Goder Colony, Edayarpalayam Road,
Mettupalyam, Coimbtore (Tamil Nadu).
(ORI. APPLICANT NO.1.)
2. Ku. Malarbizhi d/o K. Natrajan,
aged about 8 years, Student,
(ORI. APPLICANT NO.2.)
3. Mahendrakumar s/o K. Natrajan,
aged about 5 years, Student,
(ORI. APPLICANT NO.3.)
Both Respondents 2 & 3 Minors,
through next friend, their mother,
Respondent No.1.
Nos.2 & 3 residents of Arya Godar
Colony, Edayarpalayam Road,
Mettupalyam, Coimbtore (Tamil Nadu).
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4. M/s. Industrial and Commercial Corporation,
through Fakrudin Fidu, r/o Opposite Fountain Square,
Gandhibagh, Nagpur.
(ORI. NON-APPLICANT NO.1.)
5. United India Insurance Co. Ltd.
through its Branch Manager,
City Branch-2, Mahadatta Building,
Medical Chouk, Nagpur-9.
(ORI. NON-APPLICANT NO.2.) .....RESPONDENTS
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Mr. M.B. Joshi, Advocate for Appellant.
Mr. S.D. Sirpurkar, Advocate for Respondents No.1 to 3.
Mr. S.V. Thakur, Advocate for Respondents No.4 & 5.
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igAND
FIRST APPEAL NO.549 OF 1995.
1. Smt. N. Sanjilaxmi wd/o Late K. Natrajan,
aged about 35 years, Occupation Household,
R/o Arya Gowder Colony, Edayarpalayam Road,
Mettupalyam, Coimbatore (Tamil Nadu).
2. Kum. Malarbizhi d/o K. Natrajan,
aged about 13 years, Student.
3. Mahendrakumar s/o Late K. Natrajan,
aged about 10 years, Student.
S1.No.(2) and (3) - both the appellants are
minors through next friend - their mother
appellant no.1. .....APPELLANTS
VERSUS
1. M/s Industrial and Commercial Corporation,
through Fakruddin Fidu, r/o Opposite Fountain Square,
Gandhibagh, Nagpur.
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2. United India Insurance Co. Ltd.
through its Branch Manager,
City Branch-2, Mahadatta Building,
Medical Chowk, Nagpur-440 008.
3. New India Assurance Co. Limited,
Manager, Ooty Main Road, Mettupalayam,
Coimbatore, Pin-641 301. .....RESPONDENTS
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Mr. S.D. Sirpurkar, Advocate for Appellant.
Mr. M.B. Joshi, Advocate for Respondent No.3.
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CORAM: M.N. GILANI, J.
DATE: NOVEMBER 29, 2012.
ORAL JUDGMENT
1. Both these appeals arise from the judgment and award dated
18.07.1995, passed by the Member, Motor Accident Claims Tribunal,
Wardha in M.A.C. Case No.35/1992 decided with M.A.C. Case No.31/1990.
2. On 25.12.1989, on National Highway No.7, near village
Kondhali in District Nagpur, there was collision of two vehicles i.e. truck
No.MWY 6588 and TLB-2511. Truck No.MWY 6588 was driven by one
Ramsagar and the other vehicle was driven by K. Natrajan. Both died on
the spot. The Claim Application No.31/1900 was filed by the heirs of
Ramsagar, with which we are not concerned. The widow and two minor
children left behind by deceased K. Natrajan, filed Claim Application No.
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35/1992 for award of compensation of Rs.5,00,000/-. The original
non-applicant no.1 - M/s. Industrial and Commercial Corporation, Nagpur
and original non-applicant no.2 - United India Insurance Co. Ltd. are the
owner and insurer respectively of Truck No.MWY 6588, which was driven
by Ramsagar. The original non-applicant no.3 - New India Assurance
Co. Ltd. is the insurer of the other truck, owned and driven by deceased K.
Natrajan.
3. The non-applicant no.3 resisted the application on the ground
that because of sole negligence of driver of truck No.MWY 6588 accident
occurred. It was further averred that the risk of owner of the truck was not
covered and therefore, no amount of liability can be fastened upon them.
4. The learned Tribunal formulated issues. Parties went to trial on
those issues by adducing evidence. No evidence was adduced by the
original non-applicant nos.1 and 2. On the issue of negligence, the Tribunal
considered the spot panchnama and held that because of composite
negligence of driver of both the vehicles accident occurred and hence,
apportioned the liability in the ratio of 50:50. On the point of income of
the deceased, the Tribunal held that the loss of dependency was to the
extent of 12,000/- per annum and by applying multiplier of 15, fixed the
quantum of compensation amount at Rs.2,00,000/-. The original
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non-applicant no.3 - New India Assurance Co. Ltd. was fastened with the
liability to satisfy the award to the extent of 50% of the amount of
compensation, whereas the original non-applicant nos.1 and 2, were
directed to satisfy the rest of the award.
5. The original claimants, dissatisfied with the quantum of
compensation and mainly with the finding of contributory negligence, have
preferred F.A. No.549/1995. The original non-applicant no.3 - New India
Assurance Co. Ltd., filed F.A. No.534/1997.
6. Mr. Sirpurkar, learned Counsel appearing for the original
claimants, contended that the finding recorded by the learned Tribunal on
the point of composite negligence of both the vehicles is not supported by
the evidence brought on record. According to him, there was negligence of
the driver of truck No.MWY 6588 and therefore, the entire liability ought to
have been fastened upon the original non-applicant nos.1 and 2. It is
further contended that the learned Tribunal ignored the evidence while
assessing of loss of dependency and also committed an error in choosing
multiplier of 15. According to him, it should have been 17.
7. Mr. Joshi, learned Counsel appearing for the appellant original
non-applicant no.3, contended that the policy which is placed on record at
Exh.20, does not cover the risk of the owner. In support of his contention,
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he relied upon decisions in the cases of (I) M/s Tamil Nadu State Transport
Corporation, Tanjore, Rep. by its M.D. vs. Natarajan and others, reported in
2003 (2) T.A.C. 241 (S.C.) (II) Dhanraj vs. New India Assurance Co. Ltd. and
another reported in 2005 (1) T.A.C. 1 (S.C.) and (III) Oriental Insurance Co.
Ltd. vs. Jhuma Saha and others reported in 2007 (2) T.A.C. 12 (S.C.).
8. Mr. Thakur, learned Counsel appearing for the original
non-applicant no.2, contended that finding reached by the Tribunal on the
issue of composite negligence of drivers of both the vehicles is unassailable
since there is no evidence to take view contrary to one taken by the
tribunal. On the point of loss of dependency, his contention is that the
evidence falls too short to grant any more amount than what has been
awarded by the learned Tribunal.
9. Points which arise for consideration are: (i) whether the finding
reached by the learned Tribunal on the issue of composite negligence is
supported by the evidence on record?, (ii) whether the amount of
compensation fixed by the Tribunal having regard to the income and age of the
deceased needs any correction?, and (iii) whether the original non-applicant
no.3 - New India Assurance Co. Ltd. is not liable to satisfy award to any
extent for the reason that the policy issued by them did not cover the risk of
the owner of the vehicle?
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10. Except the evidence in the nature of First Information Report
Exh.38 and spot panchnama Exh.39, there is no other evidence on the point
to prove manner in which the accident occurred, and vis-a-vis the
negligence of the drivers of the vehicles. However, admittedly, it was the
case of head on collision, which resulted in drivers of both the vehicles
sustaining fatal injuries. The front side of both the vehicles were damaged
considerably. By applying the principles of res-ipsa-loquitur, the learned
Tribunal in para 16 of the judgment held that it was the case of composite
negligence. After observing that cabins of both the trucks were damaged,
the learned Tribunal thought it fit to attribute degree of negligence equally
to the drivers of both the ill-fated vehicles. In the absence of evidence to
the contrary, the finding reached by the learned Tribunal cannot be
interfered with.
11. Evidence was led to the effect that the deceased was
contributing Rs.5000/- towards household expenses. The learned Tribunal
was of the view that the claim made by the dependents of the deceased is
very much on higher side and then proceeded to assess the loss of
dependency at Rs.1,000/- per month. The broad factor, which appears to
have been ignored by the learned Tribunal, is that besides the deceased
driving the vehicle was owner of the vehicle. This itself is sufficient to hold
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that his monthly earning was in no circumstance could be less than Rs.3000
to Rs.5000. That means, he must be contributing at Rs.2000/- towards his
family expenses. As regards choices of multiplier, having regard to the age
of the deceased i.e. 34 years, proper multiplier has to be 16. In that view of
the matter, the compensation, to which the claimants are entitled to, will
have to be recalculated in the manner stated below:
Loss of dependency : 24,000/- per annum
ig x 16 = 3,84,000=00
+ Funeral expenses : + 3000=00
Loss of estate, love and :
affection : + 13,000=00
Total: Rs.4,00,000=00
Thus, the total amount of compensation to which the claimants
are entitled to comes to Rs.4,00,000/-. Considering the liability in the ratio
of 50:50 fastened upon the original non-applicant nos.1 and 2 on one hand
and original non-applicant no.3 on the other hand, the original non-
applicant no.1 - M/s Industrial and Commercial Corporation, Nagpur and
United India Insurance Co. Ltd. - non-applicant no.2 shall be jointly and
severally liable to pay Rs.2,00,000/-. This will be inclusive of no fault
fa534.97.J.odt 9/13
liability amount, if any, already paid to the claimants. The enhanced
amount of compensation i.e. Rs.1,00,000/- minus no fault liability, if
already paid, shall carry interest at the rate of Rs.7.5% per annum from the
date of filing of the application till its realization.
12. New India Assurance Co. Ltd. - appellant in F.A. No.534/1997
raised the issue of not covering the risk of the owner of the offending
vehicle insured with them. Exh.20 is the insurance policy. It was a
comprehensive policy. However, no additional premium was paid towards
the risk of the owner and/or driver of the vehicle. Although, the learned
Tribunal took cognizance of this defence, which is evident from para 11 of
the judgment, unfortunately, this is not dealt with in the reasoning part of
the judgment and award and no finding was reached about the liability of
the New India Assurance Co. Ltd. - insurer qua the claimants - dependents
of owner-cum-driver of truck TLB-2511. The issue of liability of the insurer
in case where no additional premium is paid for covering the risk of owner
of the vehicle, although policy purchased is of comprehensive in nature, is
covered by the decision of the Apex Court in M/s Tamil Nadu State
Transport Corporation, Tanjore, Rep. by its M.D. vs. Natarajan and others
(supra), relied upon by the learned counsel. The facts of that case were
that there was head on collision between the two vehicles and the liability
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in the ratio 50:50 was apportioned. Since the driver of the Tamil Nadu
State Transport Corporation himself was found negligent to the extent of
50% for causing accident, it was held that Corporation could not be held
liable under Motor Vehicles Act and therefore, the judgment impugned
fastening 50% of liability on Corporation was set aside.
13. In Dhanraj vs. New India Assurance Co. Ltd. and another
(supra), it was held that even in case of comprehensive policy, the liability
of insurance company does not arise unless the policy was purchased to
cover risk for insurer - the owner himself. The term "own damage" was
explained by observing that it tends to cover liability towards damage to
vehicle and not to injury to person of owner. It was further held that owner
of a vehicle can only claim provided a personal accident insurance is taken
out. In the instant case, it is evident from the policy at Exh.20 that
although it was a comprehensive policy, no additional premium was paid
towards the risk for injury to the owner of the vehicle.
14. The facts in the case of Oriental Insurance Co. Ltd. vs. Jhuma
Saha and others (supra) were that in a motor vehicle accident there was a
death of owner-cum-driver. Additional premium covering driver/conductor
was paid but not in respect of risk of the owner of the vehicle. Relying
upon the decision in case of Dhanraj vs. New India Assurance Co. Ltd. and
fa534.97.J.odt 11/13
another (supra) Their Lordships observed in para 11, 12 & 13 as under :
"Para:11: Liability of the insurer-Company is to the extent of
indemnification of the insured against the respondent or a
injured persona, a third person or in respect of damages of
property. Thus, if the insured cannot be fastened with any
liability under the provisions of Motor Vehicles Act, the question
of the insurer being liable to indemnify insured, therefore, does
not arise.
Para:12: In Dhanraj v. New India Assurance Co. Ltd. & Anr.,
2004 (8) S.C.C. 553, it is stated as follows:
"8. Thus, an insurance policy covers the liability incurred by
the insured in respect of death of or bodily injury to any person
(including an owner of the goods or his authorised
representative) carried in the vehicle or damage to any property
of a third party caused by or arising out of the use of the vehicle.
Section 147 does not require an Insurance Company to assume
risk for death or bodily injury to the owner of the vehicle.
10. In this case, it has not been shown that the policy covered
any risk for injury to the owner himself. We are unable to accept
the contention that the premium of Rs.4,989/- paid under the
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heading "Own damage" is for covering liability towards person
injury. Under the heading "Own damage", the words "premium
on vehicle and non-electrical accessories" appear. It is thus clear
that this premium is towards damage to the vehicle and not for
injury to the person of the owner. An owner of a vehicle can only
claim provided a personal accident insurance has been taken out.
In this case there is no such insurance.
Para:13: The additional premium was not paid in respect of the
entire risk of death or bodily injury of the owner of the vehicle. If
that be so, Section 147 (b) of the Motor Vehicles Act which in no
uncertain terms covers a risk of a third party only would be
attracted in the present case".
15. The legal position, explained above, squarely applies to the
facts of the present case. In that view of the matter, the New India
Assurance Co. Ltd., in the capacity of insurer of vehicle No.TLB 2511, shall
not be liable to contribute to the amount of compensation to any extent. In
the result, appeal No.534/1997 shall succeed.
16. Appeal No.534/1997 is allowed.
The judgment and award impugned directing appellant - New
India Assurance Co. Ltd. in M.A.C. No.35/1992 to discharge the award to
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the extent of Rs.1,00,000/- is set aside.
The amount deposited by the appellant, be refunded to the
appellant.
There shall be no order as to costs throughout.
17. Appeal No.549/1995 is allowed partly.
The claimants shall be entitled to recover an additional amount
of compensation of Rs.1,00,000/- from the original non-applicant nos.1 and
2 - respondent nos.1 and 2 herein respectively with interest @ 7.5% per
annum from the date of filing of the application till its realization. This
shall be inclusive of no fault liability amount.
On deposit of the amount as ordered above, the Tribunal shall
invest 70% of the amount in a fixed deposit in any Nationalized Bank in the
name of claimant no.1, initially for a period of 3 to 5 years, with an
arrangement that she shall receive the interest monthly or quarterly accrued
thereon and on maturity she shall have liberty to withdraw entire sum
without reference or order of this Court. The rest of the amount deposited,
be paid to the claimant No.1 by way of a cross cheque. Parties are left to
bear their own costs.
JUDGE
NSN
