Shriram General Insurance Co Ltd v. Nisha Devi & Ors.

1. The appellant/Insurance Company has preferred this statutory appeal under Section 173 of the Motor Vehicles Act, 1988[1] as amended up to date, challenging the impugned judgment-cum-award dated 05.03.2014 passed by the learned Presiding Officer, Motor Accident Claims Tribunal[2], South District, Saket Courts, New Delhi, whereby the respondent No.7 herein was held to be guilty of rash and negligent driving of the offending truck bearing registration No.HR- 55-B-6988, registered in the name of respondent No.8 herein. Furthermore, the claim for the compensation filed by the claimants, who are the wife, four children and father of the deceased under M.V. Act Section 166 read with Section 140 of the M.V. Act, was allowed. The claimants were awarded a total compensation of Rs.21,38,900/- with interest @ 9% p.a. from the date of filing of the petition till realisation on account of the death of Santosh Kumar involving the aforesaid truck.

2. Having heard the learned counsel for the appellant/Insurance Company and learned counsel for respondents No.1 to 6/claimants at the Bar and on perusal of the record, this Court proceeds to decide the present appeal.

ANALYSIS & DECISION:

3. At the outset, Mr. Sameer Nandwani, learned counsel appearing for the appellant/Insurance Company, has urged that the deceased was a “gratuitous passenger” and, therefore, the Insurance Company is not liable to pay compensation to the claimants. Learned counsel took this Court through the testimony of PW-1/Smt. Nisha Devi, wife of the deceased, and pointed out that she was not an eye-witness to the accident. It was submitted that PW-2/Daya Ram was the employer of the deceased Santosh Kumar, who was also not an eye-witness to the accident, while PW-3/Akhilesh Kumar was produced and examined as an eye-witness. It was urged that the deceased Santosh Kumar was employed by PW-2, and he was a co-driver with PW-3, and they had a sudden fight, and the deceased in the process of fleeing away, attempted to climb on the left side of the offending truck bearing registration No.HR-58-B-6988 as a gratuitous passenger. It was vehemently urged that there is no iota of evidence, as to in what capacity the deceased was on the offending truck as he was neither the driver nor the cleaner in respect of the offending truck.

4. Per contra, learned counsel for the claimants alluded to the observations made by the learned Tribunal while deciding issue No.1 regarding the factum of the accident and the finding on the issue as to whether the respondent No.7/Desh Raj was guilty of rash and negligent driving of the offending truck. It would be apposite to reproduce the reasons that prevailed in the mind of the learned Tribunal while holding the factum of accident having being established, as also the culpability of respondent No.7/Desh Raj, which reads as under:

the same day and recorded his statement. The case was registered on his statement. In his cross-examination he stated that he knew the driver Desh Raj prior to the accident. He denied that a quarrel took place between him and the driver Desh Raj prior to the accident. He was standing about 50 meters away from the spot. In the instant case a Detailed Accident Report is also filed by the SHO of PS Fateh Pur Bert. Perusal of it shows that the case was registered on the statement of PW-3. He has deposed the same facts. Charge sheet was also filed against the respondent no.1. As per the postmortem report the cause of death was shock as a result of crush injury to the head. All injuries are antemortem in nature and could be caused due to road traffic accident. For the foregoing discussions, it is established that Santosh Kumar died of the injuries sustained in an accident took place on 16.11.12 at about 4.00 PM at Bhati Road, Arya Bhat Tiraha, Delhi due to rash and negligent driving of the vehicle bearing no. HR 55 B 6888 by respondent no.1. Document show that the vehicle was owned by respondent no.2 and it was Insured with respondent no.3/insurance company.

12. Issue no.1 is accordingly decided in favour of the petitioners and against the respondents.”

5. The aforesaid reasons have to be examined in the light of testimony of the witnesses examined during the course of proceedings/trial. Indeed, PW-1 and PW-2 are not eye-witnesses to the accident; however, PW-3/Akhilesh Kumar categorically deposed that the deceased/Santosh Kumar was trying to board the offending truck bearing registration No.HR-55-B-6988, from the left side, when all of a sudden, the driver of the said truck drove it in a reckless manner. As a consequence, Santosh Kumar slipped and fell down, and the left wheel of the truck ran over his head, causing his death on the spot. Interestingly, PW-3 was not cross-examined on behalf of the appellant/Insurance Company despite affording an opportunity. Although, PW-3 was examined by the learned counsel for respondents No.1 and 2, he was merely given a suggestion that a quarrel had taken place between him and driver/Desh Raj prior to the accident. On being prodded in his cross-examination, he deposed that he was about 50 metres from the spot, and his own vehicle was parked about 200 metres away from the spot. He was not prodded about how and in which manner the deceased attempted to climb over the roof or the cabin of the offending truck bearing registration No. HR-55-B-6988. The appellant/Insurance Company had an opportunity to summon respondent No.7/Desh Raj, S/o Ram Bahadur, but they did not do so at their own peril. There is no denying the fact that the offending truck was involved in the accident.

6. At the cost of repetition, in the aforesaid backdrop, respondent No.7/Desh Raj was the best witness, who was not summoned and examined by the appellant insurance company. Indeed, it has not been made clear that, as to in what capacity the deceased was connected with the offending truck, but certainly, it is a far-cry in the wilderness that he was a gratuitous passenger. There is no merit in the plea that the offending truck was registered as a commercial goods vehicle and the cabin was meant for only two persons, including the driver.

7. Be that as it may, a bare perusal of the printed/computerised policy of insurance dated 26.01.2012 marked Ex. R3W-1/B (also PW1/7) would show that it was a „comprehensive policy‟ covering third party risks as well as risks towards two drivers and one cleaner. There is nothing in the policy of insurance excluding insurance cover to any other person. At this juncture, there is another interesting twist in the entire tale when it is seen that the initial handwritten cover note provided for insurance of the offending vehicle No. 3099108 dated 20.01.2012 with regard to the offending vehicle bearing registration No. HR55-B-6988 indicates the basic liability clause/table as under:-

Basic OD 6523 TP Premium 10550 Elec. Accessories 3510 PA to owner driver 100 Non Elec. Accessories LL to paid driver Passenger Employee CNG/LPG Kit Total 10725 Discount 20% 2007 Net Premium (A+B) 15139 Loading S.T. 1559 NCB NCB 3612 Final Premium 16698 Total 4414

8. It is interesting to point out that Rs. 50/- in the handwritten note is neither directly across the passenger nor the employee but in the middle. Therefore, unhesitatingly this Court finds that even assuming for the sake of convenience, that victim was a gratuitous passenger, he was covered by the Insurance Policy and the appellant/insurance company cannot escape its financial liability. Reference can be invited to decision by the Three Judges Bench of the Supreme Court in the case of Amrit Lal Sood v. Kaushalya Devi Thapar[3], a decision by the Three Judges Bench of the Supreme Court, wherein it was categorically held that the terms of contract of insurance can be wider than what is prescribed by statute. Nothing precludes the insurer from agreeing to indemnify the insured against all sums which the insured would become legally liable to pay in respect of death of or bodily injury to any person and any person would include gratuitous passenger as well.

9. In view of the foregoing discussion, I find that there is no merit in the plea that the deceased was a gratuitous passenger and travelling in the offending vehicle. There is no dispute raised with regard to the quantum of compensation awarded by the learned Tribunal. Evidently, the deceased was found to be 30 years of age, and his annual income was fairly assumed to be Rs.8,814/- p.m. as per scales of minimum wages provided for a skilled persons during the relevant time. 50% was added to the income of the deceased for computing future prospects, and a multiplier of 16 was applied. More or less, the amount of compensation has been awarded in a fair and just manner, itemising towards loss of financial dependency, loss of love and affection and loss of consortium besides funeral expenses and loss of estates. Although it may be stated that the compensation of loss of love and affection has not been approved by the Supreme Court in the case of National Insurance Co. Ltd. V. Pranay Sethi[4]. However, considering that there were six dependents of the deceased including father, if the loss of consortium/loss of love and affection is assumed @ Rs.14,000/- p.m., the total amount comes to Rs.[2] lacs only.