BIBI NAZMA @ NAJ MABANA Vs. UNIVERSAL DISTRIBOTOR, HELD BY FARUKH AHAMAD MAZHAVI AND DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LTD

JUDGEMENT

(1.) REFERENCE may be made to the order dated 07.09.2009 which reads as under: The appellant is the widow and she has come against the judgment dated 2nd September, 2004 passed in Compensation Case No. 32 of 2002 whereby the Tribunal dismissed the claim application of the appellant holding that the respondent -Insurance Company is not liable to pay the Compensation. The facts of the case lie in a narrow compass: The deceased was employed as driver in a maruti car. While driving the maruti car and carrying the owner and his mother in the vehicle it met with an accident as a result of which the driver died and the maruti car was badly damaged. The Tribunal held that since the accident took place by another vehicle which fled away after the accident the insurer of Maruti Car is not liable to pay compensation. When the appeal was taken up for admission, it was brought to our notice by the counsel appearing for the appellant that the Insurance Company has paid damages to the owner of the maruti car for the damage caused to the car. Hence, by order dated 5.08.2009, Mr. Alok Lal, learned Counsel appearing for the Insurance Company was directed to seel instruction from the Divisional Manager or any of the higher authority as to why on the one hand they have paid damages to the owner for the damage caused to the vehicle but they have not paid compensation for the death of the driver caused by the said accident. Today, Mr. Alok Lal, learned Counsel for the Insurance Company, on instruction, submitted that damages caused to the vehicle has been paid to the owner of the vehicle but the Insurance Company has denied to pay compensation for the death of the driver caused by the said accident on the ground that it is a case of accident by unknown vehicle. Admittedly the deceased -driver was covered under the insurance policy and additional premium was paid covering the risk of the driver. Prima facie, therefore, the Insurance Company is bound to make payment on account of death or bodily injury to the driver also who is also covered under the workmen Compensation Act. The attitude of the officers of the Insurance Company, therefore, cannot be appreciated. The accident took place in the year 2001 and because of the wrong decision taken by the officers of the Insurance Company the claimant -widow could not get compensation and she has been dragged into unnecessary litigation for about nine years. It is, therefore, a fit case where in stead of remanding the matter back to the Tribunal, we in exercise of power under Order 41 Rule 33 C.P.C. should decide and deliver the judgment after considering the evidence brought on record.

(2.) HENCE , by order dated 14th October, 2009 Lower Court Record was called for by Special Messenger.

(3.) MR . Alok Lal, learned Counsel appearing for the Insurance Company, reiterated his submission and contended that for the purpose of payment of compensation even to the driver covered under the Insurance Policy, the claimants have to prove rash and negligence driving whereas in case of payment of compensation for the damages caused to the vehicle no rash and negligence driving is to be proved. According to the respondent -Insurance Company, therefore, the value of the vehicle is much more than the value of the life. If the policy of the National Insurance Company provides to pay the damages caused to the car and not to pay compensation to the driver of the car, although fully covered under the policy, such policy is highly arbitrary, illegal and violative of the Constitutional provisions and the welfare legislation and is against the public interest. Had it been a case where the death and injury would have been caused to the occupants of the car, the matter would have been otherwise. The Supreme Court and this Court also have held that even in cases where the driver is murdered in course of his employment by the extremists, it will amount to an accident and the insurer of the vehicle would be liable to pay compensation. We, therefore, have no hesitation in holding that the Insurance Company is liable to pay compensation for the death of the deceased driver who was admittedly covered under the policy.