ORIENTAL FIRE INSURANCE COMPANY Vs. SAROJ GUPTA

JUDGEMENT

(1.) The Oriental Fire Insurance Company through the Deputy Manager has filed this Miscellaneous Appeal challenging the judgment and award passed by the Additional Motor Accident Claims Tribunal, Muzaffarpur, whereby the Tribunal has awarded a compensation of Rs. 1,87,200/- against the appellant-insurer as compensation to the claimant-respondent No. 1, after deducting a sum of Rs. 50,000/- which was already paid along with interest at the rate of 12% per annum. According to the applicant, on 16.7.1988 her son Alok Kumar Gupta alongwith others was proceeding on a Rajdoot Motor Cycle bearing registration No. BHF 350 from Patna to Muzaffarpur when a Jeep bearing registration No. BPK 8615 dashed against the motor cycle because of the rash and negligent driving, as a result the motor cycle was badly damaged and the said Alok Kumar Gupta sustained server head injury. The victim was first treated in the General Hospital at Muzaffarpur but in view of his serious condition he was treated by one Dr. Ramesh Chandra at Patna, where he died on 23.7.1988. According to the claimant the deceased was earning Rs. 15,000/- per month through self employing business as well as part time service with M.S. Barat Pipe and Sanitary Works at Exhibition Road, Patna. After the death of the victim first Information Report was lodged which was registered as Kurhani Police Station Case No. 158/88. The offending jeep was insured by the Oriental Insurance Company Ltd. According to the claimants, the total claim compensation was Rs. 4,76,187.20 which includes the cost of medical treatment and repairing of damages of the motor cycle. The owner, respondent No. 2, of the jeep as well as the driver of the jeep appeared before the Tribunal and have filed written statement wherein apart from raising technical objection they have claimed that the deceased was unemployed at the time of occurrence, inasmuch as, the jeep, in question, was proceeding in a i normal speed by keeping extreme left side. Meanwhile the deceased, who was without helmet drove the motor cycle rashly and on account of break failure the same came to the wrong side of the road and dashed the motor cycle against the jeep, as a result both the riders were thrown away and struck with the metalled portion of the road. It is alleged that the jeep, in question, was insured for the period 9.7.1988 to 8.7.1989 under the comprehensive scheme and, as such, the owner stood indemnified by the insurer against any payment in such accident. It was also alleged that the amount of compensation, as claimed by the claimant, was exorbitant and unreasonable. The appellant-Insurance Company had also filed their written statement denying the allegations made in the application and further alleged that the insurer was not given information of the accident. It was also alleged that the owner was driving the jeep in a normal speed. According to the insurer, the deceased himself is responsible as he was driving his motor cycle at a very high speed. It is alleged that the insurer is not liable for the claim amount of the applicant to the accident mentioned in the cover note of the insurance policy regarding jeep, in question. On the basis of the aforesaid pleadings, several issues were framed. The Court on consideration of the evidence on record has held that the mode and manner of the accident as alleged by the claimant stands admitted. Further the negligence on the part of the driver of the jeep is fully established. However, the Tribunal came to the conclusion that the deceased had also contributed to his death and has further held that the deceased Alok Kumar Gupta died due to head injury. The Tribunal has further held that since the deceased was not wearing helmet he contributed to his death and to that extent he is also negligent. The Court has also come to the conclusion that the jeep, in question, was insured and the policy was enforced on the date of accident covering 3rd party risk and, accordingly, held that the insurer is liable to pay the compensation to the claimant on behalf of owner of the jeep. The age of the deceased was assessed at 47 years at the time when the evidence was being recorded and at the time of occurrence he must have completed 43 years of age. Taking into consideration the average life of the Indian upto 70 years and on that basis the victim could have earned for 26 years more and, accordingly, the yearly income of the deceased was multiplied by 26 and after making necessary deduction, the Court has come to the conclusion that the Insurance Company is liable to pay the compensation of 60% of Rs. 3,12,000/- which will come to Rs. 1,87,200/- making the same as round figure to 1,87,000/- and 40% were directed to be paid by the claimants, after making necessary deduction, i.e., a sum of Rs. 1,72,000/- with interest at the rate of 12% per annum.

(2.) Learned Counsel for the claimant respondents has raised a preliminary objection to the effect that the Insurance Company cannot challenge the award on merit inasmuch as the grounds specified and enumerated in Section 96(2) of the Motor Vehicles Act can only be raised. According to the learned Counsel the Insurance Company has challenged the award on the quantum of the compensation allowed by the Tribunal which is not covered under the various clauses of Section 96(2) of the Act. In support of his contention learned Counsel has relied upon the following decisions: , United Fire & General Insurance Co. Ltd. v.P.Provathamma Kantilal & Bros. v. Ramarani Debi Oriental Fire & General Insurance Co. Ltd. v. Rajrani 1985 ACJ 749 National Insurance Co. Ltd. v. Shanim Ahmad and Ors. ; and AIR 1993 Gauhati 28, United India Insurance Co. Ltd. v. Member, M.A.C.T., Lakhimpur. The different High Courts in the aforesaid decisions have held that the insurer. Insurance Company, cannot raise defence in their support which were not available to them at the trial stage. It has been held that the rights of the Insurance Company are wholly governed by the statute and under no circumstances the right of the Insurance Company in the appeal does not in any manner enlarge right of the Insurance Company which is absolutely confined within the bounds of Section 96(2) of the Act. The preliminary objection raised by the learned Counsel for the respondents, which requires adjudication by this Court, as to whether it is open to the Insurance Company to challenge the award on merit even though the defence is confined to the grounds specifically mentioned in Section 96(2) of the Motor Vehicles Act. In order to appreciate the argument of the learned Counsel for the respondents, it is relevant to quote Section 96(2), which reads thus:

(3.) In the instant case as well the insurer mainly challenged the quantum and liability which is definitely not permissible having regard to the provisions of the statute as enumerated in Section 96(2) of the Act. The objection which has been raised in the written statement is being reiterated in the memo of appeal as well and, as such, the insurer cannot be allowed to challenge the liability and quantum of award.