The judgment established the principle that the insurer is liable to pay the personal accident benefit under the contract of insurance, as provided under Section 147 of the Motor Vehicles Act, 1988.

JUDGMENT

Nataraj Rangaswamy, J. - This is an appeal filed by the claimants challenging the Judgment and Award passed by the Tribunal, dismissing the claim petition.

2. It is stated that on 13.12.2008, the deceased was driving his auto rickshaw bearing registration No.KA-05-AA-521, dashed against a road median, as the steering handle gave way. Due to the impact, the driver fell down and sustained fatal injuries. Though he was shifted to Mahaveer Jain Hospital, he was advised to be shifted to NIMHANS Hospital and thereafter to Victoria Hospital, where he died on 18.12.2008. The claimants herein are the wife and children of the deceased and the respondent herein was the insurer of the auto rickshaw. The Tribunal taking into account the notional income of the deceased, answered the issue regarding loss of dependency and assessed the compensation at a sum of Rs.4,33,600/-. However, insofar as the liability of the insurer to pay the compensation, the Tribunal held that the claimants could not make a claim against the insurer of the auto rickshaw and in that regard, the Tribunal relied upon the Judgment in the case of Oriental Insurance Company Limited Vs. Smt.Mahabunni, (2007) 5 AIRKarR 325 and therefore, rejected the claim petition.

3. The claimants who have filed this appeal contended that the policy in question was a comprehensive one and that the accident in question was not due to the negligence of the deceased but was due to a mechanical failure of the vehicle. Alternatively, the claimants contended that the Tribunal ought to have considered the grant of the personal accident benefit of Rs.1,00,000/- which was covered under the policy for which the premium was collected.

4. Learned counsel for the appellant would rely on the Judgment of the Apex Court in the case of National Insurance Company Ltd., Vs. Ashalata Bhowmik and others, (2018) AIR SC 4133 . Refuting, the aforesaid submissions, the counsel for the insured contended that a contract of insurance is a contract of indemnity to indemnify the loss or damage as provided under Section 147 of the Motor Vehicles Act, 1988.

5. The counsel for the insurer further contended that in respect of personal accident cover if the claim for personal accident benefit was made by the claimants with the insurer soon after the accident, the insurer would have paid the amount of Rs.1,00,000/- without any demur. The insurer further contended that the claimants had not placed on record the relevant documents for settlement of the personal accident benefit.

6. It is relevant to note that the petition was filed under Section 166 of the Motor Vehicle Act, claiming compensation in respect of the death of the driver cum owner of the vehicle which is insured by the insurer. It is not in dispute that the owner was covered by a private accident cover for which premium was collected. Soon after receipt of the notice of claim under Section 166 of the Act, the insurer must have taken steps to secure necessary information from the claimants and must have paid the personal accident cover of Rs.1,00,000/-. The counsel for the insurer contended that if the claim was made within the time, the insurer would have paid the compensation and the question of payment of interest would not arise now.

7. Since, the accident occurred on 13.12.2008, and the notice of the claim petition was served in the year 2009 on the insurer, it was the bounden duty of the insurer to ascertain the details of the deceased, particulars of the driving licence etc., and the insurer must have taken proactive steps to pay the compensation to the legal representatives of the deceased. Having not done so, the insurer cannot escape from its liability to pay interest.

8. In that view of the matter, the appeal is allowed in part. The insurer is liable to pay a sum of Rs.1,00,000/- (being the personal accident benefit) to the claimants along with interest at the rate of 6% per annum from the date of claim petition, till the date of realization.

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