ORIENTAL INSURANCE COMPANY LIMITED Vs. SILKY

JUDGEMENT

(1.) THE Insurance Company is in appeal challenging the liability for a claim for compensation for injuries suffered in an accident by the owner's wife, who was driving the vehicle herself with her husband sitting by him. THE narration for the accident was that the accident took place while she attempted to prevent colliding with an oncoming vehicle that was coming fast and she dashed against a tree and suffered injuries. THE claim had been made under Section 163-A and the contention on behalf of the insurer was that in terms of the judgment of the Hon'ble Supreme Court in Ningamma and another v. United India Insurance Company Limited 2009 (2) An.W.R. 300 (SC) = 2009 (5) SCJ 377 = 2009 ACJ 2020 = 2009 (3) TAC 13, the Insurance Company will not be liable. THE reply to the contention by the learned counsel for the respondent is that if it was merely an Act policy, the insurer may not be liable but, in this case, there had been a comprehensive cover for risk to driver and owner and, therefore, the Insurance Company will become liable. THE learned Counsel would contend that Ningamma dispensation does not address the situation of when the insurer makes liable under special terms of the policy.

(2.) WHETHER a cause of action would survive for a driver, who by her own negligent driving causes an accident and makes a claim under Section 163-A must be considered in the context of certain situations of how the liability could be seen to exist even apart from the normal tort law principle. If the driver had been a workman, liability will be on the basis that an employer shall become liable for the injuries sustained by the workman in the course of employment. A person, who is not a workman and who would make a claim under the M.V. Act shall not normally be entitled to a claim for compensation under Section 163-A. This aspect came about in a case before the Hon'ble Supreme Court in New India Assurance Company Limited v. Sadanand Mukhi and others, (2009) 2 SCC 417 : 2009 (1) TAC 425. In that case, the claim arose out of death of an owner who while driving a motorcycle dashed against a tree and died. While rejecting the contention that a person, who was not an insurer but the son of the insurer must be taken as a third party, the Court said whosoever becomes a victim in an accident arising out of the use of the vehicle would not come within the purview of the terms referred under Section 147. The judgment dealt with a compulsory insurance that was required to be taken under Section 147 and further observed that an Act policy does not cover a risk to such a person in a passenger car or his representative. Neither Ningamma nor Sadanand Mukhi, therefore, addresses specifically situation where the claim arose within the terms of the policy where the claimant pleads for enforcement of the policy that is extended to cover the risk to an owner driver as well as third party. The driver need not be a paid driver or an employee for the definition under Section 2(9) of the MV Act, reads as under: "driver' includes, in relation to a motor vehicle which is drawn by another motor vehicle, the person who acts as a steersman of the drawn vehicle; The liability of the Insurance Company under the terms of the policy for which additional premium had been paid is for private use of the vehicle and the person who is entitled to drive under the terms of the policy shall be fully covered. All that is necessary, who would qualify for the definition of the driver is a person who is not disqualified from holding or obtaining a licence and holds an effective driving licence. The situation that allows for a claim against the Insurance Company is that the policy covers the use of the vehicle for any purpose other than carriage of goods (other than samples or personal luggage), organized racing, pace making, speed testing, reliability trials, and for any purpose in connection with motor trade or for hire or reward other than the purpose of driving tuition. The limits of liability as prescribed are as per Section-II-1(1) of the policy are for death or bodily injury. A bodily injury to a driver who sustained injury in the use of the vehicle and the fact that there has been payment of premium for such a person shall render liable the Insurance Company. I have not been shown any particular provision of the terms of the policy that excludes the liability of the insurer for a claim arising out of an injury sustained by the driver to whom a special cover was provided.

(3.) AS regard the quantum, the claim by the petitioner was that she had suffered a fracture with the lumbar-vertebrae of spine, which has also resulted in stiffness in lower back and persistent pains. The doctor, who had examined her and assigned her disability to be 25%. Dr. Kalonia was examined as P.W.3 and in his evidence, he has stated that he had not assessed whether it was permanent or temporary disability. He has also stated that he had not verified about the nature of work that she was carrying on previously, meaning thereby that his evidence does not help to determine the extent of loss of earning capacity that had resulted on account of the accident. There has been a constant error of eliciting what is most important in cases of injuries. A mere assumption of percentage of disability does not enable the Court to effectively determine compensation, except for the purpose of knowing to what extent the functional disability of the particular organ that was affected in the accident. An effort must always be made to elicit through medical evidence and the evidence of the victim herself as to how the injury has impacted the occupation which the person was carrying on, for, that would enable the Court to determine the loss of earning capacity. The Workmen's Compensation Act which sets out the injuries in schedule assessee percentage of loss of earning capacity. Schedule-II of the Motor Vehicles Act which gives guidelines for assessment of compensation for non-fatal injuries also advocates the scale of compensation to be made on the basis of percentage of loss of earning capacity that could be determined under the Workmen's Compensation Act. The mistake arises by assuming that the disability as synonymous with loss of earning capacity. They are not.