ORIENTAL INSURANCE CO LTD Vs. JASHMANI KONGARI

JUDGEMENT

(1.) Heard the parties and with their consent, this appeal is disposed of under Order XLI, rule 11 of the Code of Civil Procedure. On 22.12.92, one Samuel Kongari, aged about 45 years, was travelling on Tata 407 bus (BR 14-8786). He was sitting on the roof of the bus. In between Gumla and Jitutoli, at Lasiamor, on account of rash and negligent driving of the bus, he was thrown away from the roof of the bus and died. His widow filed M.J.C. No. 11 of 1993, under section 166 of the Motor Vehicles Act, 1988, for compensation. It was established that accident took place for the fault of driver of the bus. It was also established that out of his earnings, the deceased was spending a sum of Rs. 1,000 every month for maintenance of his family. So, the annual dependency was calculated at Rs. 12,000 and multiplier of 15 was used. Thus, total amount of compensation was calculated at Rs. 1,80,000. The insurance paper of the vehicle, involved in the accident, was brought on record and marked Exh. 3. On perusal of Exh. 3, it was found that a premium of Rs. 2,310 was paid for 21 passengers against third party risk. It is submitted that when it was found that due to rash and negligent driving the deceased fell down from the roof of the bus, there was contributory negligence on the part of the deceased also, when negligently he had taken risk of travelling on roof of the bus. He took this and, therefore, he definitely contributed to negligence. It is further submitted that deceased was aged about 45 years and, therefore, multiplier of 15, which was used by the Tribunal, was not the appropriate multiplier, rather it should have been maximum 12.1 find force in the aforesaid submissions. In my view, the deceased had also contributed at least to the extent of 25 per cent in the accident by travelling on the roof of the bus on his own accord. Secondly, considering age of the deceased, 12 was the appropriate multiplier to be used in this case. Thus, applying 12 as multiplier, total compensation comes to Rs. 1,44,000 and after deducting 25 per cent (Rs. 36,000) thereof, on account of contributory negligence on part of the deceased, the amount comes to Rs. 1,08,000.

(2.) Mr. Chatterjee, counsel for appellant insurance company further submitted that section 123 of Motor Vehicles Act prohibits travelling on the top of a motor vehicle. Further, rule 118 (2) (xvi) of the Bihar Motor Vehicles Rules prohibits passengers to travel on any exterior part of stage carriage. As such, in terms of the insurance policy, the insurer was not liable to indemnify owner's liability, if the vehicle was being used otherwise than in accordance with the limitations as to the use. There was no permit for carriage of passengers on the roof of the bus. The appellant insurance company was, therefore, not liable to pay any compensation.

(3.) The insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy. That being so, the insured has also to act strictly in accordance with the statutory limitations or terms of the policy expressly set out therein. In the present case, the deceased passenger was not prevented, rather was allowed to travel on the roof of the bus and as such, it amounted to breach of a condition of the insurance policy and for the tortious act on behalf of owner of the vehicle, the insurer was not liable.