Oriental Insurance Co. Ltd. v. A.J Thomas .

1. None appears for the appellant when the matter was called upon for hearing. Heard Ms. A. Paul, learned counsel appearing for the respondent.

2. This appeal has been preferred under section 173 of the Motor Vehicles Act, 1988 against the judgment and award dated 31.8.2007 passed by the learned Member, Motor Accident Claims Tribunal, West Garo Hills, Tura in MAC Case No. 46 of 2001.

3. The respondent is the owner of the Vehicle (Motor Cycle) bearing registration No. ML-8-1069 and while he was driving the said motor bike, he received injuries in an accident that took place on 15.3.2000 at Tura Ringrey on National Highway 51 when a stray dog suddenly ran across the road and the vehicle hit the dog. The respondent was under treatment for a long period at various places including Guwahati and Kerela. He made claim petition before the learned tribunal claiming Rs. 18.92 lakh. The appellant contested the claim case. The learned tribunal on examination of the materials and evidence on record passed the award as under:—

“53. Having discussed several illustrious rulings of the Apex Court and other Hon'ble courts this tribunal decides this award based on the 2nd Schedule to M.V Act, 1988 (as amended). Having arrived at a monthly income of the claimant at Rs. 20,000, and having decided the percentage of permanent partial disability at 40% and loss of earning disability at 40%, the annual loss of income is assessed at Rs. 240,000, Rs. 42,830, Rs. 197,170, i.e, Rs. 16430 p.m and 40% of which comes to Rs. 6,572 p.m say Rs. 6,500. Since the claim is related to non-fatal accident, the same is computed as per the clauses 4 and 5 of the 2nd schedule to M.V Act, 1988 (as amended). The age of the claimant at the time of accident was 50 years and accordingly going strictly by the schedule the multiplier needs to be 13 as such the amount of compensation, thus, works out to:

Sub clause (i) pain and sufferings (a) Grievous injuries Rs. 5,000 Sub-clause (ii) Towards Medical expenses Rs. 15,000

Under clause 5(b) — Disability in non-fatal accidents: Rs. 6,500 × 13 × 12 = Rs. 10,14,000 Total = Rs. 10,34,000

54. Since the case is not governed by the clause applicable to fatal accident the deduction envisaged thereto as indicated in the “NOTE” to the 2nd Schedule can not be applied in the instant case.

55. Simple interest at the rate of 9% p.a from the date of filing the claim petition, i.e, 2.5.2001 will accrue to this award till 28.10.2004 Thereafter, the interim relief Rs. 25,000.00 paid to the claimant on 28.10.2004 shall be deducted from the principle award and interest for the balance amount shall be paid @ 9% p.a till the date of payment.”

4. The appellant was made liable for payment of the aforesaid award including the interest thereon and was directed to deposit the award amount within 30 days from the receipt of this order failing which penal interest at the rate of Rs. 12% shall accrue.

5. The main issue raised by the appellant in this appeal is whether the insurer is liable to compensate the owner-driver of the accident vehicle for his death or bodily injury, he being not a third party within the meaning of section 147 of the Motor Vehicles Act, 1988. The appellant, in its Memo of Appeal, referring to the decision rendered by the Apex Court in Dhanraj v. New India Insurance Co. Ltd., (2004) 8 SCC 553, attempts to make out a case that liability of Insurance Company is only for the purpose of indemnifying the insured against liabilities incurred towards a third party or in respect of damage to property and, therefore, where the insured, i.e, an owner of the vehicle has not incurred any liability towards the injury caused to himself, the insurance company equally has no liability to indemnify.

6. Ms. Paul, learned counsel appearing for the respondent submits that law has been settled by the Apex Court that if an additional premium is paid by the owner of the vehicle so as to cover any risk for his death or bodily injury, the insurer is liable to indemnify the owner-driver. In support of her submission, she refers to Oriental Insurance Co. Ltd. v. Jhuma Saha (Smt.), (2007) 9 SCC 263. The fact whether the insured has paid additional amount is the determining factor for deciding an issue whether an owner-driver should be indemnified for his death or bodily injury received while driving the vehicle himself.

7. From the records, the learned counsel for the respondents has placed the original certificate of insurance (Exhibit-C4) issued by the appellant-insurance company in favour of the respondent, wherein it is indicated that an amount of Rs. 100 was paid/received as an amount for accidental benefit to owner and pillion rider. According to Ms. Paul, this amount of Rs. 100 is an additional premium paid by the respondent to get the benefit towards personal accident cover. This, according to her, is an admitted position as could be found from grounds No. (VI) embodied in the memo of appeal, wherein it has been stated as under:—

“VI. For that Insurance Policy has been proved by the respondent and marked as Exhibit-C3 and Exhibit-C4 and from where it is revealed that respondent paid additional premium of Rs. 100 under the liability column towards personal accident benefit and maximum liability under that head was accepted by insurance company is limited up to Rs. 2,00,000. The claim if any arises under this type of cases usually are settled by appellant-company themselves.”

For this admitted position, the appellant, submits Ms. Paul, is liable to indemnify the respondent for the bodily injury he received while driving the aforesaid vehicle.

8. I have gone through the judgment in Dhanraj's case (supra) as referred to by the appellant. In the said case, the owner of the accident vehicle met with an accident while travelling therein. There was a comprehensive policy and the question arose as to whether a comprehensive policy would cover the risk of injury to the owner of the vehicle. It was held that such an Insurance Policy does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle inasmuch as the premium was paid towards damage of the vehicle and not for the injury to the person or owner. It was not a case where the owner of the vehicle paid extra premium and as such, the present case is not similar to the case in hand and the principle laid down therein would not be applicable to the present case.

9. I have also gone through the judgment rendered by the Apex Court in Jhuma Saha's case (supra) as cited by the learned counsel for the respondent. This is a case where a deceased was the owner of an insured vehicle and he met with an accident while driving himself and sustained injury and succumbed to the same. The insured owner-driver did not pay additional premium to cover the insured risk of death or bodily injury of the owner of the vehicle and it was, therefore, held that section 147(b) of the Motor Vehicles Act which in no uncertain terms covers a risk of a third party only would be attracted. The implication of the aforesaid judgment is that the owner-driver of the accident vehicle would be indemnified by the insurer only and if only, the additional premium has been paid by the insurer. I find the principle laid down in the Jhuma's case (supra) can be applied to the present case.

10. In another case, namely, New India Assurance Co. Ltd. v. Sadanand Mukhi, (2009) 2 SCC 417, the same issue was discussed and decided. That was a case of an accident and the death of the driver of motor cycle, who was son of the insured/owner of the motor cycle. It was held by the Apex Court that the deceased driver/son of the insured/owner of the motor cycle is not a third party; he is rather a gratuitous passenger. It was also held that the insurance company was not liable to pay compensation inasmuch as there was an Act Policy only in respect of the motor cycle concerned and no additional premium was paid covering the additional risk. The Apex Court discussed the core issue in para 13 and 14 of the judgment with special reference to provisions under the M.V Act in regard to statutory and contractual insurance, which are quoted below:—

“13. Contract of insurance of a motor vehicle is governed by the provisions of the Insurance Act. The terms of the policy as also the quantum of the premium payable for insuring the vehicle in question depends not only upon the carrying capacity of the vehicle but also on the purpose for which the same was being used and the extent of the risk covered thereby. By taking an “Act policy” the owner of a vehicle fulfils his statutory obligation as contained in section 147 of the Act. The liability of the insurer is either covered by the policy of insurance. If additional risks are sought to be covered, additional premium has to be paid. If the contention of the learned counsel is to be accepted, then to a large extent, the provisions of the Insurance Act become otiose. By reason of such an interpretation the insurer would be liable to cover risk of not only a third party but also others who would not otherwise come within the purview thereof. If is one thing to say life is uncertain and the same is required to be covered, but it is another thing to say that we must read a statute so as to grant relief to a person not contemplated by the Act. It is not for the court, unless a statute is found to be unconstitutional, to consider the rationality thereof. Even otherwise the provisions of the Act read with the provisions of the Insurance Act appear to be wholly rational.

14. Only because driving of a motor vehicle may cause accident involving loss of life and property and not only of a third party but also the owner of the vehicle and the insured vehicle itself, different provisions have been made in the Insurance Act as also the Act laying down different types of insurance policies. The amount of premium required to be paid for each of the policy is governed by the Insurance Act. A statutory regulatory authority fixes the norms and the guidelines.”

11. In this appeal, the appellant has seriously questioned the finding of the learned tribunal on the permanent disability to the extent of 40% without taking any evidence of the doctor and awarding the compensation. In this regard, it is to be noted that the respondent-claimant produced necessary medical certificates before the learned tribunal and the appellant had opportunity to peruse the same. No doubt, the respondent claimant did not examine the concerned doctor but the appellant, at no point of time, made any prayer before the learned tribunal to summon the doctor concerned for examination to testify the veracity of the medical report and, thus, it failed to avail the chance of calling the materials witness. The learned tribunal in para 21 of his judgment rightly observed that “…The contention of the counsel for, O.P, that no permanent disability certificate from doctors from Guwahati and Kerala has been produced is infructuous as much as that the MRI report dated 5.4.2002 (Ex. C13) indicate the permanent disability of the claimant” and came to a conclusion in para 27 that”……this tribunal is inclined to hold that the claimant has sustained permanent disablement as a consequence of the accident occurred on 15.3.2000 involving the insured vehicle with the, O.P Insurance Company to the extent of 40% and the issue is settled in favour of the claimant.”

12. In view of the above, I do not find any infirmity in the impugned judgment and order passed by the learned Tribunal warranting any interference and as such, the appeal is found to be bereft of merit and accordingly, the same is dismissed.

13. The impugned award dated 31.8.2007, passed by the learned Member, Motor Accident Claims Tribunal, West Garo Hills, Tura in MAC Case No. 46 of 2001 stands upheld. The appellant Insurance Company is directed to deposit the award amount, if not deposited as yet, forthwith. The amount, so deposited with the learned tribunal by the appellant Insurance Company shall be released to the respondent on proper identification and in presence of the witness and counsel of the respondent claimant.

14. The registry shall send down the case record to the learned tribunal forthwith.