The New India Assurance Co. Ltd. vs Kamla Devi

Banwari Lal Sharma, J.—This Misc. Appeal has been preferred by the insurance company against the judgment and award dated 11.04.2014, passed by the Motor Accident Claims Tribunal, Barmer in Motor Accident Claim Case No. 170/2010 titled as Smt. Kamla & Ors. Vs. Ratna Ram & Ors., whereby learned Tribunal partly allowed the claim petition of respondents-claimants under Section 163-A of the Motor Vehicles Act, 1988 (hereinafter referred as ''the Act of 1988'') and awarded Rs. 6,13,339/- in favour of respondents-claimants and against appellant Insurance Company and respondents No. 6 and 7, i.e. driver and owner of the vehicle.

Mr. Rajesh Panwar, learned counsel puts his appearance on behalf of respondents No. 1 to 5 claimants. Both the learned counsel submitted that a short issue is involved in this appeal, therefore, the same may be decided at this stage.

With the consent of the learned counsels for the parties, the matter was heard finally.

Learned counsel for the appellant insurance company submitted that respondents-claimants filed a claim petition invoking the provisions enshrined under Section 163-A of the Act of 1988, whereby the claimants are not required to plead and prove the negligence of the driver of the vehicle.

He further submitted that according to claimants, the deceased was the employee of owner of the vehicle and was travelling in the said truck as a Khalasi. Learned Tribunal has held that the deceased was working as Khalasi under the employment of respondent No. 7 Smt. Seema, owner of the truck and held that risk of the deceased was covered under the said policy, therefore, the liability of the insurer in respect of a workman is confined to the liability arising under the Workmen''s Compensation Act but learned Tribunal even considering this fact, fastened the liability on the insurance company awarding amount in excess to the Workmen''s Compensation Act.

The next argument advanced by the learned counsel for the insurance company is that the claim petition was filed under Section 163-A of the Act of 1988, therefore, the learned Tribunal has no jurisdiction to award any compensation beyond Second Schedule appended to the act.

According to the Second Schedule of the Act sum of Rs. 5,000/- may be awarded towards loss of consortium, Rs. 2,000/- towards funeral expenses and Rs. 2,500/- towards loss of estate, but learned Tribunal has fairly ignored the provisions of Second Schedule and has awarded Rs. 1,00,000/- towards loss of consortium, Rs. 40,000/- towards love and affection and Rs. 20,000/- towards funeral expenses. Thus, the amount awarded excess to Schedule II deserves to be disallowed and the same may be reduced.

Per contra, learned counsel for the respondents-claimants has submitted that so far limited liability is concerned, as per liability under the Workmen''s Compensation Act is concerned, no such objection was raised by the appellant insurance company before the learned Tribunal. Further, learned Tribunal has charged extra premium for two employees, therefore, the liability can be limited upto Workmen''s Compensation Act. However, he frankly submitted that the award was excess from Schedule II which can suitably be reduced.

I have considered the submissions made by the learned counsel for the parties.

So far as first submission is concerned, since, such objection was not raised by the appellant insurance company before the learned Tribunal, therefore, it cannot be considered at this appellate stage.

So far as the second argument is concerned, there is no dispute regarding income of deceased i.e. Rs. 40,000/- per annum and at the time of incident, the age of the deceased was 25 years. Learned Tribunal applied the multiplier of 17 and calculated the loss of income as Rs. 4,53,339/- which does not require any interference but so far as loss of consortium is concerned as per Schedule II, it should be Rs. 5,000/- instead of Rs. 1,00,000/-. Similarly Rs. 40,000/- was awarded by the learned Tribunal on account of loss of love and affection while there is no provision for such loss in Schedule II and the learned Tribunal awarded Rs. 20,000/- on account of funeral expenses while as per this Schedule, it was only Rs. 2,000/-. Apart from this loss of estate is also there i.e. Rs. 2,500/- in the Schedule but it was not awarded by the learned Tribunal.

Accordingly, as per Schedule II respondents-claimants are entitled for Rs. 4,62,839/- instead of Rs. 6,13,339/-, therefore, it requires modification and on this account the appeal of the insurance company deserves to be partly allowed and is partly allowed and the award amount is reduced from Rs. 6,13,339/- to Rs. 4,62,839/- on which respondents-claimants are entitled for interest @ 9% p.a. from the date of institution of the claim petition i.e. 12.10.2010 till its realisation.

With the above modification, the appeal stands disposed of with a direction to insurance company to deposit the entire claim amount with interest within a period of 40 days from today. The learned Tribunal is free to disburse the above amount amongst the respondents-claimants. Copy of the order be sent to learned Tribunal.