THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Appellate Jurisdiction)
DATED : 26th May, 2022
-------------------------------------------------------------------------------
SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
-------------------------------------------------------------------------------
MAC App. No.10 of 2019
0
Appellant : The Branch Manager,
The New India Assurance Co. Ltd.
versus
Respondents : Smt. Urmila Biswakarma (Chettri) and Others
Appeal under Section 173 of the Motor Vehicles Act, 1988
----------------------------------------------------------------
Appearance
Mr. Sudesh Joshi, Advocate for the Appellant.
Mr. Umesh Ranpal, Advocate for Respondents No.1, 2 and 3.
Mr. Ateendra Raj Bagdas, Advocate for Respondent No.4.
----------------------------------------------------------------
JUDGMENT
Meenakshi Madan Rai, J.
1.(i) The Appellant-Insurance Company, herein, was ordered
to pay compensation of Rs.32,25,946/- (Rupees thirty two lakhs,
twenty five thousand, nine hundred and forty six) only, to
Respondents No.1, 2 and 3 on account of the death of the husband
of Respondent No.1 and the father of Respondents No.2 and 3, in a
motor vehicle accident, involving a Truck, bearing
Registration No. SK-04-D/0294, driven by the deceased on
14.05.2016, which met with an accident near Rambi Bazaar, West
Bengal. Aggrieved by the said Judgment, dated 18.04.2019 in
MACT Case No.80 of 2017, the Appellant assails the same.
2. Learned Counsel for the Appellant contended that the
admitted position of the Respondents No.1 to 3 (Claimants No.1 to
3 before the Learned Tribunal) is that the deceased was driving the
vehicle in accident at the relevant time and no other vehicle was
involved. It was also admitted by Respondents No.1 to 3 that the MAC App. No.10 of 2019 The Branch Manager, The New India Assurance Co. Ltd. 2 vs.
Urmila Biswakarma (Chettri) and Others
accident had occurred due to the deceased, driving the vehicle at
an excessive speed, which resulted in his death by his own
negligence. Hence, the Respondents No.1 to 3 cannot take
advantage of the fault of the deceased who was the tortfeasor and
seek compensation. It was next contended that the concerned
vehicle had no valid Route Permit to ply and it had not been
certified by the concerned Authority as being fit to be used as a
Goods Carrying Vehicle. Despite the facts supra before the Learned
Tribunal, the compensation was erroneously granted and deserves
to be set aside. In support of his contentions, Learned Counsel
placed reliance on the ratio of Pawan Kumar and Another vs.
Harkishan Dass Mohan Lal and Others1; Khenyei vs. New India
Assurance Company Limited and Others2; National Insurance Company
Limited vs. Ashalata Bhowmik and Others3 and T.O. Anthony vs.
Karvarnan and Others4.
3.(i) Per contra, Learned Counsel for the Respondents No.1
to 3 contended that no error emanates in the grant of
compensation to the said Respondents, as the documents of the
vehicle including the Insurance Policy, which was a Comprehensive
Policy, the Driving Licence of the deceased and the Route Permit
were valid at the time of the accident. The attention of this Court
was invited to the provisions of Section 147(1)(b)(i) of the Motor
Vehicles Act, 1988 (for short, the "M.V. Act") and it was urged that
it clearly states that the Insurance Policy insures the person or
classes of persons specified in the Policy against any liability which
may be incurred by him in respect of the death or bodily injury to
"any person," including the owner of the goods or his authorized
1 (2014) 3 SCC 590 2 (2015) 9 SCC 273 3 (2018) 9 SCC 801 4 (2008) 3 SCC 748 MAC App. No.10 of 2019 The Branch Manager, The New India Assurance Co. Ltd. 3 vs.
Urmila Biswakarma (Chettri) and Others
representative carried in the vehicle, or damage to any property of
a third party caused by or arising out of the use of the motor
vehicle in a public place. That, the term "any person" thereby
includes the deceased employed Driver, besides which, he is a third
party being neither the insured nor the insurer. On this count,
strength was garnered from the ratio in The Branch Manager,
National Insurance Co. Ltd., Gangtok vs. Master Suraj Subba and
Another 5 wherein it was held that the deceased, who was the
husband of the insured, had a valid Driving Licence, was not a
party to the agreement of Insurance and thereby fell within the
meaning of "third party." It was also urged that the provisions of
Section 166 of the M.V. Act is benevolent legislation intended to
mitigate the difficulties of the Claimants who seek compensation on
account of the death of the earning member of their family, hence
the Respondents No.1 to 3 are entitled to compensation under
Section 166 of the M.V. Act. On this count, reliance was placed by
Learned Counsel on The Branch Manager, United Insurance Company
Limited vs. Lily Ongmu Lepcha6.
(ii) The Court was next invited to consider the provisions of
Section 147(5) of the M.V. Act and it was argued that the provision
puts the liability on the insurer to indemnify the person or classes
of persons specified in the Policy in respect of any liability which
the Policy purports to cover in the case of that person or those
classes of persons. On this aspect, Learned Counsel for
Respondents No.1 to 3 relied on the case of Branch Manager, New
India Assurance Co. Ltd. vs. Jasu Subba and Others7 wherein it was
clearly enunciated that "Driver" means any person including the
5 AIR 2014 Sikkim 7 6 2016 SCC OnLine Sikk 198 7 2011 SCC OnLine Sikk 20 MAC App. No.10 of 2019 The Branch Manager, The New India Assurance Co. Ltd. 4 vs.
Urmila Biswakarma (Chettri) and Others
insured, the only condition being that such person should hold an
effective Driving Licence at the time of the accident and is not
disqualified from holding or obtaining a Licence. That, although the
Appellant's claim is that the accident vehicle did not have a valid
Route Permit on account of the failure of the Respondent No.4
(Opposite Party No.2 before the Learned Tribunal) to produce the
document, even if this be so, the Hon'ble Supreme Court in Kamala
Mangalal Vayani and Others vs. United India Insurance Company
Limited and Others8 held that the Claim Petition cannot be rejected
on grounds of non-filing of the Route Permit when it was
established that the vehicle was comprehensively insured with the
insurer to cover the passenger risk. Since, there was no breach of
the terms and conditions of the Insurance Policy and the Driving
Licence of the deceased was valid, the Appeal be dismissed.
4. The Respondent No.4-owner of the vehicle in accident,
contended that all required documents of the vehicle, including the
Insurance Policy, were valid at the time of the accident. The
Driving Licence of the deceased was also valid though the Route
Permit of the vehicle was misplaced, however, a copy of the Permit
was found by the Respondent No.4 in the month of October, 2019,
hence the application Under Order XLI Rule 27 of the Code of Civil
Procedure, 1908 (for short, the "CPC") before this Court in I.A.
No.03 of 2020, seeking to file the document. The vehicle also had a
Comprehensive Package Policy and the onus to prove that there
was a breach in the terms and conditions of the Insurance Policy
lay with the Appellant. On this count, reliance was placed on
Kamala Mangalal Vayani's case (supra) hence the Appeal be
dismissed.
8 (2010) 12 SCC 488 MAC App. No.10 of 2019 The Branch Manager, The New India Assurance Co. Ltd. 5 vs.
Urmila Biswakarma (Chettri) and Others
5. The rival arguments of all parties were heard in
extenso. All documents examined, evidence perused, including the
impugned Judgment and the citations made at the Bar. The
question that falls for consideration before this Court is;
"Whether the Claimants are entitled to
compensation under Section 166 of the Motor
Vehicles Act, 1988, when the deceased is the tortfeasor and succumbed to the accident on account of his own rash and negligent act?"
6.(i) Reliance on Pawan Kumar supra by Learned Counsel for
the Appellant is not relevant to the matter at hand as it
distinguishes between "composite" and "contributory" negligence of
the tortfeasors who injured a third party, while we are concerned
with the death of the tortfeasor and the liability of the insurer, if at
all.
(ii) The case of T.O. Anthony supra relied on by Learned
Counsel for the Appellant is also distinguishable from the facts of
the case under consideration as it was concerned with
"contributory negligence" when two vehicles collided with each
other and one of the drivers, who was injured in the accident,
claimed compensation from the other, alleging negligence, which
the second driver denied. In the ratio of Khenyei supra, also the
distinction between "composite" and "contributory" negligence was
made out by the Hon'ble Supreme Court and is not relevant for the
present purposes.
(iii) In Ashalata Bhowmik supra, the deceased was the
owner of the offending vehicle and driving it when the accident
occurred, it was ruled that he could not be treated as a third party.
In the instant case, the deceased was the Employee of the insured
and not being the insurer or the insured, fell within the ambit of MAC App. No.10 of 2019 The Branch Manager, The New India Assurance Co. Ltd. 6 vs.
Urmila Biswakarma (Chettri) and Others
third party and duly covered by the Policy of insurance, as will
emanate from the discussions hereinbelow.
(iv) While addressing the argument of Learned Counsel for
the Appellant pertaining to non-existence of Route Permit, Learned
Counsel for the Respondents No.1 to 3 have rightly relied on the
ratio of Kamala Mangalal Vayani supra where it was propounded that
once it is established that the vehicle was comprehensively insured
with the insurer to cover the passenger risk, the burden to prove
that it was not liable in spite of such a policy, shifts to the insurer.
In light of this decision, there is no requirement to consider the
application filed by the Respondent No.4 under Order XLI Rule 27
of the CPC, which is disposed of accordingly.
7.(i) Section 146 of the M.V. Act necessitates insurance
against third party risk. The object of this provision is to enable the
third party to claim and recover damages from the Insurance Policy
without recourse to the financial capacity of the Driver or the
Owner of the vehicle.
(ii) Section 147(1)(b)(i) of the M.V. Act provides as
follows;
"147.Requirements of policies and limits of liability.--(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which--
(a).........
(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)--
(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorized representative carried in the vehicle out of the use of the vehicle in a public place. ........."
(iii) In New India Assurance Co. Ltd. vs. Asha Rani and Others9
the Hon'ble Supreme Court, while considering the meaning of the
words "any person" occurring in Section 147 of the M.V. Act supra,
9 (2003) 2 SCC 223 MAC App. No.10 of 2019 The Branch Manager, The New India Assurance Co. Ltd. 7 vs.
Urmila Biswakarma (Chettri) and Others
held that the words must be attributed having regard to the
context in which they have been used i.e. "a third party." In
Ningamma and Another vs. United India Insurance Company Limited 10 it
was held that the apparently wide words "any person" are qualified
by the setting in which they occur and that "any person" is to be
understood as a third party.
(iv) In Rameshray Singh vs. New India Assurance Co. Ltd. and
Others11 it was held that the words "any person" and "any
passenger" occurring in clauses (i) and (ii) of Sub-Section (b) to
Section 147(1) of the M.V. Act, are of wide amplitude, however the
proviso to the Sub-Section carves out an exception in respect of
one class of persons and passengers as required under the Statute
to cover only certain employees. This would still allow the insured
to enter into an Agreement to cover other employees but under the
proviso to Section 147(1) (b) of the M.V. Act, it is clear that for the
purposes of Section 146(1) of the M.V. Act, a Policy shall not be
required to cover liability in respect of the death arising out of and
in the course of any employment of the person insured unless,
first, the liability of the insured arises under the Workmen's
Compensation Act, 1923. If the concerned employee is neither a
driver nor conductor nor examiner of tickets, the insured cannot
claim that the employee would come under the description of
"any person" or "passenger." If this were permissible, then there
would be no need to make special provisions for employees of the
insured. The words "any person" or "passenger" which occur in
Section 147 of the M.V. Act are of wide amplitude but they do not
10 (2009) 13 SCC 710 11 2003 (3) TAC 3 SC MAC App. No.10 of 2019 The Branch Manager, The New India Assurance Co. Ltd. 8 vs.
Urmila Biswakarma (Chettri) and Others
cover employees other than those mentioned in proviso to Sub-
Section (b) of Section 147(1)(i) of the M.V. Act.
8.(i) Relevant reference at this juncture may be made to the
first proviso to Section 147 (1) of the M.V. Act which reads as
follows;
"Provided that a policy shall not be required--
(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923, (8 of 1923.) in respect of the death of, or bodily injury to, any such employee--
(a) engaged in driving the vehicle, or
(b) .........
(c) ........."
(ii) Section 147 (5) of the M.V. Act provides as under;
"147. Requirements of policies and limits of liability.--
.........................................................................................................
(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons."
9.(i) Before proceeding further with the discussions, it is
necessary to state here that the Insurance Policy in the instant
matter is a "Comprehensive Policy" also known as a "Package
Policy." This is different from an "Act Policy." A Comprehensive
Policy covers the liability of the Insurer for payment of
compensation for the occupant. In National Insurance Company
Limited vs. Balakrishnan and Another12 the Hon'ble Supreme Court,
while distinguishing between a "Comprehensive Policy" and an "Act
Policy," observed that a Comprehensive/Package Policy would
cover the liability of the insurer for payment of compensation for
the occupant in a car. An Act Policy cannot cover a third party risk
12 (2013) 1 SCC 731 MAC App. No.10 of 2019 The Branch Manager, The New India Assurance Co. Ltd. 9 vs.
Urmila Biswakarma (Chettri) and Others
of an occupant in a car which a Comprehensive/Package Policy
would cover.
(ii) The terms and conditions of the Insurance Policy herein
inter alia reveals as follows;
"This policy is subject to the Terms, conditions and exceptions applicable to Package/Liability policy attached/available on the web site http://newindia.co.in; IMT Endorsement Number(s) printed herewith attached 23, 40, 62, 65."
[Emphasis supplied]
(iii) The India Motor Tariff (for short, the "IMT")
Endorsement 40 reads as under;
"IMT 40 Legal Liability to paid driver and/or Conductor and/or cleaner employed in connection with the operation of Motor vehicle.
(For buses, taxis and motorized three/four wheelers under commercial vehicles tariff) In consideration of the payment of an additional premium it is hereby understood and agreed that notwithstanding anything contained herein to the contrary the insurer shall indemnify insured against his legal liability under the Workmen's Compensation Act, 1923 and subsequent amendments of that Act prior to the date of this endorsement, the Fatal Accidents Act, 1855 or at Common Law in respect of personal injury to any paid driver and/or conductor and/or cleaner whilst engaged in the service of the insured in such occupation in connection with the vehicle insured and will in addition be responsible for all costs and expenses incurred with its written consent.
The premium to be calculated and paid while taking insurance of the vehicle concurred at the rate of Rs.25/- per driver and/or conductor and/or cleaner. Provided..............."
(iv) The Insurance Policy further reveals thus;
"Schedule of Premium Own Damage Liability
Basic OD Cover Basic TP Cover GVW above 12000KG, Inclusion of LL to persons employed for IMT 23 opn. and/or maint. and/or loading and/or unloading, LL to paid driver conductor cleaner employed for oprn NCB(35%) OD Premium in ₹ 3457 TP Premium in ₹ 19832
Net Premium in ₹: 23289 Service Tax in ₹: 2879 Total Payable in ₹: 26168 ..................................................."
(v) The Insurance Policy, Exhibit 5, was relied upon by
Respondents No.1 to 3 and the contents of the document were not MAC App. No.10 of 2019 The Branch Manager, The New India Assurance Co. Ltd. 10 vs.
Urmila Biswakarma (Chettri) and Others
challenged or demolished by cross-examination of their Witness,
Rajen Kumar Sharma. In such circumstance, although a break up
of the Premium under different Heads have not been detailed in the
document, a total sum of Rs.19,832/- (Rupees nineteen thousand,
eight hundred and thirty two) only, was paid by way of Third Party
Premium, and it can safely be assumed that it included additional
premium to cover the Driver who was the employee of the Insured
and thereby a "third party," the insurer and the insured being the
first and the second party. The Respondents No.1 to 3 cannot be
held at ransom for the lackadaisical attitude of the Insurance
Company and its agent while filling up the form.
10. In light of the discussions above and considering that
the deceased was an Employee of the Insured, and additional
premium paid, nothing debars the Respondents No.1 to 3 from
making a claim for compensation under Section 166 of the M.V.
Act, 1988. This soundly answers the question formulated above.
11.(i) Accordingly, the Monthly Income of the deceased is
taken as Rs.20,000/- (Rupees twenty thousand) only, which has
not been disputed herein.
(ii) As per the ratio in Sarla Verma (Smt) and Others vs. Delhi
Transport Corporation and Another13 the Multiplier adopted for
calculating loss of earnings ought to be "16" in consideration of the
age of the victim who was 35 years at the time of the accident
instead of "17," as erroneously adopted by the Learned Tribunal.
(iii) The amount of Rs.40,000/- (Rupees forty thousand)
only, calculated by the Learned Tribunal towards "mental tension"
and "loss of prospective happiness" incorrectly clubbed along with
"loss of consortium" are set aside lacking statutory sanction.
13
(2009) 6 SCC 121 MAC App. No.10 of 2019 The Branch Manager, The New India Assurance Co. Ltd. 11 vs.
Urmila Biswakarma (Chettri) and Others
(iv) In the ratio of Magma General Insurance Company
Limited vs. Nanu Ram alias Chuhru Ram and Others14 the Hon'ble
Supreme Court, while discussing "Consortium," concluded that
"Consortium" can be "Spousal Consortium," "Parental Consortium"
and "Filial Consortium." It was further propounded that Consortium
is a special prism reflecting changing norms about the status and
worth of actual relationships. That, modern jurisdictions world over
have recognized the value of a child's consortium which far
exceeds the economic value of the compensation awarded in the
death of a child. Most jurisdictions therefore permit parents to be
awarded compensation under loss of consortium on the death of a
child. The amount awarded to the parents is a compensation for
loss of the love, affection, care and companionship of a deceased
child. That, in case where a parent has lost their child, they are
entitled to be awarded Loss of Consortium under the head of "Filial
Consortium." In the instant matter, the Respondent No.1 is found
entitled to Spousal Consortium while Respondents No.2 and 3 are
entitled to Parental Consortium at the rate of Rs.40,000/- (Rupees
forty thousand) only, each as held in Magma General Insurance
Company Limited supra.
(v) The amount computed for "Medical Expenditure" by the
Learned Tribunal was Rs.4,35,946/- (Rupees four lakhs, thirty five
thousand, nine hundred and forty six) only, however, as per the
Second Schedule to the M.V. Act, (which is followed even for
compensation under Section 166 of the M.V. Act for the purposes
of attaining uniformity in grant of compensation), it is elucidated
that the "medical expenses" would include actual expenses
incurred before death supported by bills/vouchers but not
14 (2018) 18 SCC 130 MAC App. No.10 of 2019 The Branch Manager, The New India Assurance Co. Ltd. 12 vs.
Urmila Biswakarma (Chettri) and Others
exceeding Rs.15,000/- (Rupees fifteen thousand) only.
Accordingly, the medical expenses stands computed as Rs.15,000/-
(Rupees fifteen thousand) only, instead of Rs.4,35,946/- (Rupees
four lakhs, thirty five thousand, nine hundred and forty six) only,
wrongly computed by the Learned Tribunal.
(vi) The amounts awarded by the Learned Tribunal towards
"Loss of Estate" and "Funeral Expenses" are allowed.
12. Consequently, in light of the aforesaid facts and
circumstances, the Judgment of the Learned Tribunal stands
modified as follows;
Annual Income of the deceased Rs.2,40,000/- (Rs.20,000/- x 12)
Less 1/3 of Rs.2,40,000/- (-) Rs.80,000/- [Deducted from the said amount as expenses that the deceased would have incurred towards his maintenance had he been alive] Net Yearly Income Rs.1,60,000/-
Multiplier of "16" adopted in terms of Sarla Verma's Judgment [Rs.1,60,000/- x 16] Rs.25,60,000/- Add Loss of Spousal Consortium (+) Rs.40,000/- [Rs.40,000/-, payable to Respondent No.1] Add Loss of Parental Consortium (+) Rs.80,000/-
[Rs.40,000/- each, payable to
Respondents No.2 and 3]
Add Loss of estate (+) Rs.15,000/-
Add Funeral expenses (+) Rs.15,000/-
Add Medical expenses (+) Rs.15,000/-
Total Rs.27,25,000/-
(Rupees twenty seven lakhs and twenty five thousand) only.
13. The Respondents No.1 to 3 shall be entitled to Simple
Interest @ 10% per annum on the above amount of
Rs.27,25,000/- (Rupees twenty seven lakhs and twenty five
thousand) only, with effect from the date of filing of the Claim
Petition before the Learned Tribunal till full realization.
14. The awarded amount shall be paid by the Appellant to
the Respondents No.1 to 3 within one month from today with MAC App. No.10 of 2019 The Branch Manager, The New India Assurance Co. Ltd. 13 vs.
Urmila Biswakarma (Chettri) and Others
interest @ 10%, failing which, the Appellant shall pay Simple
Interest @ 12% from the date of filing of the Claim Petition till
realization, duly deducting the amounts, if any, already paid by it
to the Respondents No.1 to 3.
15. The awarded amount of compensation shall be divided
as follows;
(i) From the total amount awarded, Claimant-
Respondent No.1, spouse of the deceased is entitled to 50%, along with interest as specified above.
(ii) 50% of the total amount awarded shall be divided equally amongst the Claimants- Respondents No.2 and 3, of which 15% of the share of each child, shall be kept in individual Fixed Deposit in a Nationalised Bank, until the child attains the age of majority. The remaining 10% of each of the minor's share shall be expended on their education.
16. The impugned Judgment stands modified to the above
extent.
17. Appeal dismissed and disposed of accordingly.
18. No order as to costs.
19. Copy of this Judgment be sent to the Learned Motor
Accident Claims Tribunal, East Sikkim at Gangtok, for information,
along with its records.
( Meenakshi Madan Rai ) Judge 26.05.2022
ml Approved for reporting : Yes
