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2018 Supreme(P&H) 3634
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH
Rajiv Narain Raina, J.
Hdfc Ergo General Insurance Company Limited - Appellant
Versus
Asha - Respondent
FAO No. 578 of 2016 (O&M), FAO No. 7354 of 2015 (O&M) and FAO No. 7355 of 2015 (O&M)
Decided On : 19-01-2018
Mr. Pradeep Kumar, Advocate, for the Appellant; Mr. Aditya Yadav, Advocate, for the Respondent Nos. 1 to 4 in FAO No. 578 of 2016; Mr. Ashish Pannu, Advocate, for the Respondent No. 1 in FAO No. 7354 of 2015; Mr. S.S. Hira, Advocate, for the Respondent No. 1 in FAO No. 7355 of 2015
The main legal point established in the judgment is the liability of the Insurance Company to pay compensation to the claimants under the Motor Vehicles Act, 1988, based on the nature of the insurance policy and the circumstances of the accident.
Headnote:
Insurance Company - Liability to Pay Compensation - Motor Vehicles Act, 1988 - Section 147(1) - Section 147(2)(i) - Section 147(2)(ii) - Section 147(2)(g) - Section 149 - Section 304-A of IPC - Sarla Verma and others v. Delhi Transport Corporation and another,2009 2 SCC(Civ) 770 - Rajesh and others v. Rajbir and others , 2013 9 SCC 54 - National Insurance Company Limited v. Pranay Sethi and others - United India Insurance Company Ltd. v. Sukhni Mahto and others,2010 STPL(Comp) 83 JHAR - National Insurance Company Ltd. v. Balakrishnan and another , 2013 1 RCR(Civ) 762 - Bhagyalakshmi and others v. United Insurance Company Limited and another , 2009 7 SCC 148 - Yashpal Luthra and another v. United India Insurance Co. Ltd. and another , 2011 ACJ 1415 - Manager, National Insurance Co. Ltd. v. Sheela and another,2008 18 RCR(Civ) 615 - Manager, National Insurance Company Limited v. Saju P. Paul and another , 2013 2 SCC 41 - National Insurance Co. Ltd. v. Challa Bharathamma and others , 2004 8 SCC 517 - National Insurance Company Ltd. v. Parvathneni and another , 2009 4 RCR(Civ) 269 - Manuara Khatun and others v. Rajesh Kr. Singh and others, (Civil Appeal No. 3047 of 2017) - New India Assurance Co. Ltd. v. Murugan and others (C. M. A. Nos. 3661 of 2013 and 2080 of 2014) - Oriental Insurance Co. Ltd. v. Ajayakumar , 1999 ACJ 1499 - Oriental Insurance Co. Ltd. v. Radha Rani , 1999 ACJ 1524 - Jugal Kishore and another v. Ramlesh Devi and others , 2004 ACJ 297 - New India Insurance Co. v. Kamla
Fact of the Case:
Anand died in a jeep accident, and the Insurance Company appealed against the compensation awarded to the claimants. The main issue was whether the Insurance Company was liable to pay compensation to any of the claimants.
Finding of the Court:
The court held that the Insurance Company was liable to pay compensation to the claimants, as the deceased and the injured were not travelling in a jeep run for hire or reward, and the insurance policy covered the risk of a passenger travelling in a private vehicle gratuitously.
Issues: The main issue was whether the Insurance Company was liable to pay compensation to any of the claimants, considering the nature of the insurance policy and the circumstances of the accident.
Ratio Decidendi: The court relied on various judgments and legal provisions under the Motor Vehicles Act, 1988, to establish the liability of the Insurance Company to pay compensation to the claimants. The court emphasized the distinction between 'Act' policy and 'Comprehensive/Package Policy' and interpreted the provisions related to liability to third parties and passengers in a vehicle.
Final Decision: The appeals filed by the Insurance Company were dismissed, and the court granted the right to recover against the driver/owner in case an action was filed, leaving the final decision to the Motor Accident Claims Tribunal.
JUDGMENT
Rajiv Narain Raina, J. - This order will dispose of FAO No. 578 of 2016 titled HDFC ERGO General Insurance Company Limited v. Smt. Asha and others, FAO No. 7354 of 2015 titled HDFC ERGO General Insurance Company Limited v. Sanjiv and others & FAO No. 7355 of 2015 titled HDFC ERGO General Insurance Company Limited v. Sandeep and others.
2. These are three appeals by the Insurance Company relating to the same accident. The main appeal FAO No. 578 of 2016 arises from a death case while the two connected appeals are in cases of injuries sustained. The three appeals can easily be decided by common order.
3. Anand died in an accident on February 06, 2013 while he was in a jeep travelling from Kharkhoda to Sampla. The jeep unfortunately overturned as a result of the accident Anand was thrown out and crushed, mortally wounding him. He was brought dead to Civil Hospital, Kharkhoda.
4. The driver Rishi Parkash was charge-sheeted inter alia under Section 304-A of IPC. Anand was 45 years at the time of accident. He was working as Gardener in Municipal Corporation, Delhi earning Rs. 23,871/- per month. He left behind his widow and three children. The Tribunal held that two children were not dependent on him and proceeded to determine compensation for the widow and minor daughter-petitioner No. 4 in the original claim application. The Tribunal applied the principle in Sarla Verma and others v. Delhi Transport Corporation and another,2009 2 SCC(Civ) 770 and reduced the income by 1/3rd towards personal living expenses which Anand would have spent had he been alive. The multiplier 13 was applied. Applying the law in Rajesh and others v. Rajbir and others , 2013 9 SCC 54 the Tribunal awarded Rs. 1 lakh for loss of consortium and Rs. 50,000/- for the minor daughter towards loss of love and affection and guidance. Besides, the amount of Rs. 20,000/- was awarded towards transportation and funeral expenses and amount of Rs. 4,38,970/- was awarded to be paid by the insurer with right to recover compensation from owner and driver. The interest was awarded @7. 5% per annum.
5. In the present appeal filed by the Insurance Company, no opinion is expressed on the quantum of compensation which will more appropriately be decided in the appeals filed by the claimants which are pending in this Court. However, in view of Special Leave Petition (Civil) No. 25590 of 2014, National Insurance Company Limited v. Pranay Sethi and others the compensation model in Rajesh case is not to be followed since it has been declared not good law. Accordingly, consortium is reduced from Rs. 1 lakh to Rs. 40,000/- while transportation and funeral expenses are reduced to Rs. 15,000/- and in addition Rs. 15,000/- for loss of estate is awarded under which head the Tribunal has granted no compensation. Loss of love and affection and guidance of father is no longer a sustainable head of compensation and, therefore, Rs. 50,000/- granted towards compensation is set aside. The award dated September 30, 2015 passed by the MACT Jhajjar deserves to be modified accordingly but since future prospects have not been awarded in terms of Pranay Sethi the same can be urged by the claimants in their pending appeals and no opinion is expressed thereon as far as the present appeals filed by the Company is concerned.
6. The issue which has been furiously battled by Mr. Pradeep Kumar, learned counsel appearing for the appellant is whether the Insurance Company is liable to pay compensation to any of the claimants.
7. It is the contention of Mr. Pradeep Kumar that the Insurance Company is not liable to indemnify the insured because the deceased was a passenger in the vehicle and no premium has been paid by the owner of the vehicle to cover risk of the passenger. He urges that the perusal of the policy on record shows that no premium was paid by the owner of the vehicle towards passenger travelling in the offending vehicle. It is the further submission that the offending vehicle was being drive
