Delhi High Court
Oriental Insurance Company Ltd. vs Deepak Rao & Anr. on 14 December, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 14th December, 2012
+ MAC.APP. 666/2012
ORIENTAL INSURANCE COMPANY LTD. ...... Appellant
Through: Ms. Manjusha Wadhwa, Adv.
versus
DEEPAK RAO & ANR. ..... Respondents
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appellant Oriental Insurance Company Limited impugns a judgment
dated 24.02.2012 passed by the Motor Accident Claims Tribunal (the
Claims Tribunal) in a Petition under Section 163-A of the Motor Vehicles
Act, 1988 (the Act) preferred by the Respondents No.1 and 2.
2. There is twin challenge to the judgment. First, the liability towards the
pillion rider is not covered by the Insurance Policy obtained by the
insured; and second, the compensation awarded is more than what is
provided under the Second Schedule.
3. It is urged that in case of a Petition under Section 163-A of the Act, the
compensation has to be strictly in accordance with the second Schedule.
4. As far as the first contention is concerned, a perusal of the cover note
placed on record of the Claims Tribunal shows that it was a
comprehensive policy obtained by the insured.
5. A learned Single Judge of this Court in Yashpal Luthra & Anr. v. United
India Insurance Company Ltd. & Anr. MAC APP.176/2009 decided on
09.12.2009 held that risk of a pillion rider and of a gratuitous occupant of
a motor car is covered in a comprehensive package policy issued by the
Insurance Company.
6. This Court on 26.10.2009 in Yashpal Luthra examined a Deputy Manager
of the Traffic Advisory Committee (TAC) under Section 165 of the
Indian Evidence Act who admitted about the coverage of risk of a pillion
rider on a scooter and occupant in a motor car in a comprehensive policy.
He deposed that instructions by TAC were issued in this regard on
02.06.1986.
7. In Yashpal Luthra all the insurance companies admitted their liability
towards pillion riders and gratuitous occupants of a motor car in case of
issuance of comprehensive policy. The Insurance Company even agreed
to withdraw all the Appeals and SLPs filed by them in the High Court or
in the Supreme Court.
8. Thus, there is no manner of doubt that the risk in respect of deceased
Neha Rao @ Tara @ Tara Rani, who was the mother of Respondents
No.1 and 2 and wife of Respondent No.3, was covered under the
insurance policy obtained by the Respondent No.3, the owner of the
vehicle.
9. In the Claim Petition filed by Respondents No.1 and 2 it was stated that
the deceased Neha Rao was a graduate and was coaching the students at
her home and was earning `3300/- per month. The Claims Tribunal was
not convinced with this averment of the Claimants and, therefore,
proceeded to award compensation on the basis of minimum wages of a
graduate, which were `4230/- per month. The Claims Tribunal could not
have assumed the income of deceased Neha Rao more than what was
claimed by her son, Respondents No.1 and 2 herein.
10. It is true that the Claims Tribunal is competent to award compensation
more than what is claimed because Section 168 of the Act envisages
payment of just compensation. The Court can assume minimum wages
where the Claimant or a victim claims income more than the minimum
wages and is unable to establish the same. But, where a victim or legal
representatives of the deceased claims an income just less than the
minimum wages, it would not be permissible for the Court to award
compensation assuming income more than what is claimed. Moreover, it
is well settled that a Claim Petition under Section 163-A of the Act can be
entertained only when the deceased or the Claimant's income is upto
`40,000/- per annum. By assuming income of `4230/-, the deceased's
income came to be more than `40,000/-. It was, therefore, not
permissible to award compensation on the basis of the income of more
than `40,000/- per annum.
11. In a Petition under Section 163-A of the Act, the compensation has to be
awarded strictly according to the Second Schedule. This question was
dealt with in great detail in a judgment of this Court in New India
Assurance Co. Ltd. v. Pitamber & Ors., MAC.APP. 304/2009 decided on
23.01.2012. This Court referred to the decision in Oriental Insurance
Company Limited v. Smt. Pataso & Ors., MAC APP.962/2005 decided on
01.09.2008; Oriental Insurance Company Limited v. Om Prakash & Ors.,
1 (2009) ACC 148; Jagdish & Anr. v. Madhav Raj Mishra and Anr. MAC
APP.190/2011 decided on 19.04.2011; and Oriental Insurance Company
Limited v. Anita Devi & Ors., 20011 (5) AD (Delhi) 138, decided on
10.05.2011; Oriental Insurance Company v. Hansrajbhai v. Kodala,
(2001) 5 SCC 175; and Deepal Girishbhai Soni v. United India
Insurance Company Limited, (2004) 5 SCC 385; and held that in a
Petition under Section 163-A of the Act there is a cap of `40,000/- on the
annual income and the compensation including non-pecuniary damages
have to be awarded as per the Second Schedule.
12. The loss of dependency thus comes to `3,96,000/- (3300/- x 12 x 2/3 x
15) instead of `6,00,000/- awarded by the Claims Tribunal.
13. The compensation awarded is recomputed as under:-
Sl.No. Compensation under Awarded by the Awarded by this
various heads Claims Tribunal Court
1. Loss of Dependency `6,00,000/- `3,96,000-
2. Funeral Charges ` 2,000/- ` 2,000/-
3. Loss to Estate ` 2,500/- ` 2,500/-
4. Medical Expenses ` 46,155/- ` 46,155/-
Total ` 6,50,655/- ` 4,46,655/-
14. In view of the foregoing discussion, the compensation stands reduced
from `6,50,655/- to `4,46,65/- which shall carry interest @ 7.5% per
annum from the date of filing of the Petition till its payment.
15. The excess amount of `2,04,000/- along with proportionate interest and
the interest accrued, if any, during the pendency of the Appeal shall be
refunded to the Appellant Insurance Company.
16. The compensation payable to the Respondents No.1 and 2 shall be
released to them in terms of the order passed by the Claims Tribunal.
17. The statutory deposit of `25,000/- be refunded to the Appellant Insurance
Company.
18. The Appeal is allowed in above terms.
19. Pending Applications also stand disposed of.
(G.P. MITTAL)
JUDGE
DECEMBER 14, 2012
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