Delhi High Court
The New India Assurance Co Ltd. vs Durga Prasad Bhusahal And Ors. on 25 August, 2017
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision:25rd August, 2017
+ MAC.APP. 97/2013 & CM No.1709/2013
THE NEW INDIA ASSURANCE CO LTD. ..... Appellant
Through: Mr. R.K. Tripathi, Adv.
versus
DURGA PRASAD BHUSAHAL AND ORS. ..... Respondents
Through: Mr. Abhinav Sharma, Adv. for R1 to
R3.
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT (ORAL)
1. The appellant has challenged the award of the Claims Tribunal
whereby compensation of Rs.1,00,000/- has been awarded to respondents
No.1 to 3.
2. The accident dated 14th/15th April, 2008 resulted in the death of
Minraj Bhushal. The deceased was survived by his parents and brother who
filed the application for compensation before the Claims Tribunal.
3. Learned counsel for the appellant urged at the time of hearing that the
personal accident cover for Rs.1,00,000/- covers the owner if he had been
driving the insured vehicle at the time of accident but it would not cover the
driver other than the owner. It is further submitted that the appellant had
issued personal accident cover in respect of the owner only and the deceased
was not the owner/insured of the motorcycle.
4. The Claims Tribunal held that the personal accident cover for
Rs.1,00,000/- issued in respect of the owner-cum-driver covered the driver.
The findings of the Claims Tribunal are reproduced herein below:-
"12. Sh. Anand Singh Rawat Asstt. The New India Assurance
Co. Ltd. appeared as R2W1 and produced the attested true
copy of the insurance policy bearing
No.310400/31/07/01/00003765 which was issued in favour of
Amir Hashim (R-1) and was valid from 15/2/08 to 14/2/09 for
the vehicle bearing registration No. KL-11-U-8629. Copy of
the same is Ex.R2W1/A(coll. Three sheets) (OSR). Notice u/o
12 rule 8 CPC was issued to owner Sh.Amir Hashim, through
registered AD for producing the D/L of the driver and original
insurance policy. Notice is Ex.R2W1/B, postal receipts is
Ex.R2W1/C. No reply has been received in compliance of the
said notice from the regd., owner by the company till today. As
per details of the insurance policy the driver of
offending/alleged vehicle was not covered due to non receipt
of any premium regarding the covering risk of driver.
Insurance company has no liability to make the payment of
any compensation due to the reason that accident had taken
place due to the rash and negligent act of the deceased
himself.
13. During cross examination by counsel for petitioner he
deposed that he admitted that a sum of Rs.50/- has been paid
towards Personal Accident to owner-cum-driver which is
mentioned at page no.2 of the insurance policy. Thereafter
respondent's evidence was closed and case was fixed for final
arguments.
xxx xxx xxx
19. ...............by virtue of terms and conditions mentioned in
the certificate of insurance admittedly brought on record, on
the second page of the said certificate it is mentioned that a
premium of Rs.50/- is paid towards compulsory personal
accident to owner-cum-driver and the limited liability towards
this head is also mentioned to the tune of Rs.1,00,000/- and
also relying upon observations in a decided case cited as
Oriental Insurance Co. Ltd. Vs. Rajni Devi (2008) 5 SCC 736
and New India Assurance Co. Ltd. vs. Sadanand Mukhi
(2009) 2 SCC 417 wherein it has been categorically held that
in a case where third party is involved, the liability of the
insurance company would be unlimited. It was also held that
where, however, compensation is claimed for the death of the
owner or antoher passenger of the vehicle, the contract of
insurance being governed by the contract qua contract. In
such circumstances, I am of the view that the petition is
maintainable only on the basis of the premium paid towards
compulsory personal accident to owner-cum-driver and not
otherwise. This issue is decided accordingly.
20. ............by virtue of the terms and conditions mentioned in
the certificate of insurance admittedly brought on record on
the second page mentioning Schedule of Premium a Premium
of Rs.50/- is paid towards Compulsory Personal Accident to
Owner-cum-Driver and the amount insured towards this head
is also mentioned as Rs.1,00,000/-, thereby it is established
that the claim of the petitioner against the insurer would
depend upon the terms thereof, therefore, by virtue of the
terms and conditions agreed between the insured and insurer
coupled with the fact that Compulsory Personal Accident
Premium has already been paid limiting the liability of amount
of compensation to the tune of Rs.1,00,000/- payable to the
Driver-cum-Owner of the vehicle proved. In such
circumstance, the petitioners have become entitled to claim the
limited amount of Rs.1,00,000/- towards the head personal
accident claim."
5. The insurance policy Ex.R2W1/A has been perused. The schedule of
premium of the insurance policy Ex.R2W1/A covers the owner-cum-driver.
The relevant portion of the policy with respect to the personal accident cover
is reproduced hereunder:-
SCHEDULE OF PREMIUM (In Rs.)
A: OD - BASIC 327.94 B: T.P. - BASIC 300.00
Compulsory PA to Owner Cum Driver 50.00
Amount 100000
Stamp Duty 1.00
Minimum Premium : Rs.100 Net Amount Payable (Rounded 0 762
6. This Court is of the view that the personal accident cover for
Rs.1,00,000/- would cover the owner as well as driver of the offending
vehicle. This Court agrees with the findings of the Claims Tribunal. The
appeal is dismissed.
7. The appellant has deposited the compensation amount with UCO
Bank, Delhi High Court Branch in terms of the order dated 01st February,
2013.
8. List for disbursement of the compensation amount on 04th September,
2017.
9. Learned counsel for respondents No.1 to 3 shall produce the
particulars of the savings bank account of respondents on the next date of
hearing.
10. Copy of this judgment be given dasti to counsel for the parties under
the signature of the Court Master.
AUGUST 25, 2017 J.R. MIDHA, J.
ak
