Ram Singh and Others vs Dashrath and Others

N.K. Mody, J.—This order shall also govern the disposal of M.A. No. 102/2012 which is the appeal filed by respondent No. 3/Insurance company as in both the appeals the award under challenge is dated 11/10/2011 passed by MACT, Fast Track Court, Kukshi in claim case No. 270/2010 whereby the claim petition filed by the appellants was allowed and compensation of Rs. 3,52,500/- was awarded on account of death of Sakribai who died in the motor accident which took place on 17/12/2009. Learned counsel for appellants submits that learned tribunal assessed the income @Rs. 100/- per day but calculated the compensation @ Rs. 2,500/- per month, out of which 1/4th was deducted towards personal expenses and after applying the multiplier of 15, compensation was calculated. It is submitted that since accident is of the year 2009, therefore income assessed is on lower side. It is submitted that if the income was taken as Rs. 100 per day, there was no justification to assess the income @ Rs. 2,500/- per month and in all the heads the amount awarded is on tower side, hence prayed that appeal be allowed and amount be enhanced.

Learned counsel for respondent No. 3 submits that amount awarded is on higher side. It is submitted that since the offending vehicle was being used in violation of terms of policy, therefore respondent No. 3 ought to have been exonerated. It is further submitted that even if it is assumed that offending vehicle was being used for the purpose for which it was insured, then too, liability of respondent No. 3 is limited to the extent of Rs. 1 Lac per passenger. For this contention, reliance is placed on a decision in the matter of The D.M., Oriental Insurance Co. Ltd. Vs. Arati Mishra and Another, wherein private jeep was insured under Act Only Policy carrying gratuitous passengers, met with accident due to rash and negligent driving resulting in death of passengers, Orissa High Court held that Insurance company is not liable. United India Insurance Co. Ltd. Vs. C. Goverdhan and Another, , wherein passengers travelling in a jeep which dashed against a truck and a passenger in jeep sustained injuries, insurance company sought to avoid its liability on the ground that jeep was insured voering third party risk and risk of injured who was a fare paying passenger was not covered, the jeep was not a public service vehicle and insurance of passengers travelling in it was optional and not compulsory, the jeep was insured under Act only policy and did not cover the risk of passengers, Andhra Pradesh High Court held that passenger is not a third party and Insurance company is not liable." It is submitted that appeal filed by the respondent No. 3 be allowed and appeal filed by the appellant be dismissed.

Since the accident is of the year 2009 and income as assessed by the learned tribunal as Rs. 100/- per day, therefore there was no justification in assessing the income of deceased @ Rs. 2,500/- per month. In the facts and circumstances of the case, this court is of the view that income ought to have been taken as Rs. 3,000/- per month. In view of this, appellants are entitled for the following amount:-

Thus, appellants are entitled for a sum of Rs. 4,35,000/- instead of Rs. 3,52,500/-. The enhanced amount of Rs. 82,500/- shall carry interest @ 8% per annum from the date of application.

So far as liability of respondent No. 3 is concerned, respondent No. 3 has examined Gajanand, Field Officer, who has stated that liability of Insurance company is to the extent of Rs. 1 Lac. He has also admitted that extra premium was charged @ Rs. 50/- per passenger. In the matter of United India Insurance Co. Ltd. Vs. C. Goverdhan and Another, which is relied by the respondent No. 3 itself, it is observed after placing reliance on a decision in the matter of New India Vs. V.R. Anand, 2006 ACJ 1659 that an insurer is vested with a discretion to cover the risk of persons by a contract as envisaged under the tariff regulations, by collecting additional premium and has an option to cover the risk of a pillion rider of the two-wheeler and passengers of a private vehicle, to cover their risk, by a contract on the payment of additional premium and the risk of pedestrians is covered by Act policy and so beneficiaries, whose risk can be optionally covered under the contract by collecting additional premium would not be covered by the Act policy. In the matter of National Insurance Co. Ltd. Vs. Brijlata and Others, wherein the death of a occupant of jeep in accident, the jeep was insured by comprehensive "B" policy, the policy including, risk of death or bodily injury of any person including an occupant provided he is not carried for hire or reward, in the definition of third party risk, no extra premium required for covering risk of passengers in a private car, deceased was not shown to be carried for hire or reward, a Division Bench of this court held that insurance company is liable for payment of compensation." In the matter of Oriental Insurance Co. Ltd. Vs. Ajayakumar and Others, wherein Full Bench of Kerala High Court held that "risk of passengers travelling in private vehicle gratuitously is covered by an Act policy, it was held that Insurance company is liable.

In the present case, the proposal form submitted by the owner is not filed. Respondent No. 3 has not stated anything that offending vehicle was being used for carrying passengers on hire or reward. Since respondent Nos. 1 and 2 are not before this court inspite of service in the appeal filed by respondent No. 3, therefore the findings regarding the liability is modified to the extent that respondent No. 3 shall pay and shall have a right to recover the same from respondent Nos. 1 and 2. In case right is exercised by respondent No. 3, then respondent Nos. 1 and 2 shall be at liberty to demonstrate that as per proposal form submitted by respondent No. 2, the full risk of all occupants was covered.

The amount awarded shall be deposited by the Insurance Company with the learned tribunal and the learned tribunal is directed to invest 80% of the said amount on long term fixed deposit in the name of appellant in the Nationalized Bank and interest thereon shall be credited on monthly basis in S.B. Account of appellant. However, on an application by the appellant, this condition could be modified by the learned tribunal in exceptional circumstances, if made out by the appellant.

This order shall be executable only upon payment of proportionate court fee on the enhanced amount which be paid within 3 months from the date of this order. Registry to prepare memo of costs. The appellant''s counsel shall provide C.C. of memo of costs to the counsel for Insurance company which shall thereafter deposit the enhanced amount with costs with the Tribunal within one month from the date of receipt of memo of cost. Failure to comply with the direction, no interest would be payable on the enhanced amount from the date of order till Court fee is actually paid and memo of costs is supplied to counsel for respondent/ Insurance company. With the aforesaid observation, both the appeals are disposed of. Let a copy of this order be placed in the connected file.