ORIENTAL INSURANCE CO LTD Vs. ANIL KUMAR

JUDGEMENT

(1.) Both these cases are connected. One is at the instance of the Insurance Company disputing the finding of liability cast on the insurer and another is at the instance of the claimant seeking for enhancement of compensation for the assessment made for the injuries suffered in a motor accident. As regards the liability issue of the insurer, the admitted fact is that the claimant was travelling in the tractor. The tractor is defined under Section 2(44) of the Motor Vehicles Act and it specifically provides that it is not constructed to carry any load other than equipment used for the purpose of propulsion and excludes the road-roller. The insurance is for death or bodily injury by an accident by the use of motor vehicle which in this case is goods vehicle with the trolly attached. The consideration would, therefore, be whether a person traveling in the tractor is entitled to any cover for insurance against the Insurance Company. This Court has dealt with the issue of liability of insurance for an accident when the traveller was on the mudguard of the tractor in The Oriental Insurance Company v. Gurmel Kaur and others, in FAO No. 5063 of 2006 decided on 24.08.2010, The New India Assurance Company v. Surinder Kaur, in FAO No. 635 of 2005. India Insurance Company Ltd. v. Sunita Devi and others, in FAO No. 2656 of 2007 dated 12.08.2010. These judgments have been rendered referring to the Supreme Court decisions in National Insurance Company Ltd. v. Jugal Kishore and others, 1988 ACJ 270, The Oriental Insurance Company Ltd. v. Brij Mohan, 2007 148 PunLR 88, The New India Assurance Company v. Darshan Devi, 2008 7 SCC 416 and New India Assurance Company v. Vedwati, 2007 146 PunLR 72. I do not wish to, therefore, reproduce the reasoning and only hold that for a death and injury to a passenger in a tractor, the Insurance Company could not be made liable, for, there exists no obligation under Section 147 of MV Act to cover the risk for a person who was traveling in a vehicle which was not fit to carry passengers. The issue of whether the Insurance Company could still be made liable for the purpose of satisfying the claim allowing for a right of recovery against the owner and the driver has also been considered by this Court in United India Insurance Company Ltd. v. Ramji Lal and others, 2010 160 PunLR 436. The award rendered by the Tribunal making the Insurance Company, in such a situation would, therefore, required to be set aside and accordingly, set aside.

(2.) The appeal is also with reference to the quantum of compensation assessed by the Tribunal, where the claimant was 32 years of age at the time of accident but due to injury in the spinal cord he had suffered 100% disablement. The Tribunal had taken the income to be only Rs. 15,000/-, although there was evidence to the effect that he was drawing income Rs. 3,200/- per month. I would take the entire income as the loss occasioned to the claimant and would determine the compensation as set forth in Schedule II by providing for a multiplier of 16. The loss in case of an injured person cannot be a subject to any deduction, in the manner done by the Tribunal, where disability assessed was 100% and the loss of earning capacity must have also been taken 100% loss. Consequently, the damage due to the injury suffered for quantifying the loss of earning capacity would be Rs. 3,200 x 12 x 16 = Rs. 6,14,400/-. As provided by Schedule II an amount of Rs. 5,000/- for grievous injury and Rs. 15,000/- for medical expenses will have to be also provided. There are no other heads of claims which are required to be addressed while applying Schedule II. Consequently, the total compensation payable to the claimant shall be Rs. 6,34,400/- and the amount shall be recovered from the driver and the owner only. The award stands modified and the appeal filed by the claimant in FAO No. 4222 of 2011 shall stand allowed to that extent. It appears that during the pendency of this appeal, the Insurance Company was directed to deposit the whole amount and Rs. 1,24,000/- was allowed to be withdrawn by the claimant. The Insurance Company shall exercise the right of recovery not against the claimant but against the owner and the driver only in respect of the said sum of Rs. 1,34,000/-. As regards the remaining amount which is assessed, the Insurance Company shall not be made liable nor the recovery be made against the Insurance Company in terms of the reasoning which are adopted in the appeal in FAO No. 1720 of 2011. The amount in deposit in excess to the credit of the case before the Tribunal shall be permitted to be withdrawn by the Insurance Company itself.