NATIONAL INSURANCE CO LTD Vs. JODHA SINGH

JUDGEMENT

(1.) THE appeal has been preferred by the insurance Company from a judgment and award dated 9th March, 2007, whereunder a sum of Rs. 1,79,500/- has been awarded in favour of the parents in case of death of a five years old child.

(2.) THE award has been challenged on two grounds; firstly, there was breach of policy; and secondly, there is no deduction on the quantified income. Mr. S. K. Mehrotra, learned counsel appearing for the appellant, relied upon a recent judgment of the Supreme court in New India Assurance Co. Ltd. v. Vedwati and others, to establish that when there is a breach of policy, insurer has no liability to pay any amount to the claimants in case of any accident. We have gone through the background of the facts and we found from the relevant factual portion, particularly as in paragraph 3 of such judgment, that it was held by the Tribunal that passenger travelling in a goods vehicle graciously was also entitled to claim compensation, which was to be paid by the insurer. We are of the view that there is a basic difference of fact in between such judgment and the case hereunder. In the instant case, the Tribunal has categorically held that the Insurance company is not liable to pay. However, as a stop-gap arrangement the amount was directed to be paid with a right to recover the said amount from the owner of the vehicle. Therefore, the Insurance Company is not fastened with the liability to get application of such ratio of the judgment, as referred above. Accordingly, on the basis of such distinguishing feature we cannot accept the contention of the learned Counsel appearing for the appellant to that extent.

(3.) SO far as the dispute with regard to quantum is concerned, the same cannot be raised by the Insurance Company when it has not been fastened with the liability. Moreover, the quantified amount is very low in nature and recoverable by the Insurance company from the owner. The Insurance company has no separate right to raise any dispute with regard to quantum. In any event and without prejudice, when it has raised the issue with regard to deduction on the basis of the judgment of the Calcutta High Court in fatama Matul Bibi and anothers v. Oriental insurance Co. Ltd. and another, about the applicability of multiplier on the basis of the future income of a child, we are of the view that the said view is not a correct appreciation of law in view of the several recent judgments of the different High Courts as well as of the supreme Court and held to be per incuriamm nature. For an example, in New India assurance Co. Ltd. v. Satender and others, in case of death of minor child, the Supreme court held as follows: