(Prayer: This appeal is filed under Section 173(1) of the Motor Vehicles Act, against the judgment and award dated 7.8.2007 passed in M.V.C. No.2546/2005 on the file of the Addl. Civil Judge (Sr.Dn.) and MACT, Gokak.
This appeal is filed under Section 173(1) of the Motor Vehicles Act, against the judgment and award dated 7.8.2007 passed in M.V.C. No.2547/2005 on the file of the Addl. Civil Judge (Sr.Dn.) and MACT, Gokak.
This appeal is filed under Section 173(1) of the Motor Vehicles Act, against the judgment and award dated 7.8.2007 passed in M.V.C. No.2548/2005 on the file of the Addl. Civil Judge (Sr.Dn.) and MACT, Gokak.)
1. These appeals are filed by the Oriental Insurance Co. as well as the claimant challenging the common judgment and award dated 7.8.2007 made in MVC Nos.2546 to 2548 of 2005 by the Additional Civil Judge (Sr.Dn.) and MACT, Gokak (for short `MACT').
2. MFA Nos.14730 to 14732 of 2007 have been filed by the Oriental Insurance Co. questioning the liability fastened on it to compensate the claimants, whereas MFA No.20540/2008 has been filed by the claimant being not satisfied with the quantum of compensation.
3. Since the common question of law is involved in these appeals and the common judgment and award passed by the MACT is challenged, all these appeals are clubbed together and disposed of by this common judgment.
4. The respondents in MFA Nos.14730 to 14732 of 2007 filed claim petitions contending that on 14.6.2005 at about 5.00 p.m, they alongwith a daughter of the claimant in MFA No.20540/2008, Kumari Nikhita were travelling as gratuitous passengers in a jeep bearing Regn. No.KA-23/M 3009 from Mudalagi to Gurlapur. The said vehicle was driven by its driver in a rash and negligent manner and dashed against a motor cycle, as a result of which, the claimants sustained injuries and a minor child by name Nikhita, aged 1½ years of the claimant in MFA No.20540/2008 died at the spot. In the claimant petitions, it was contended that prior to the accident, they were doing coolie work, tailoring and vegetal vending and earning Rs.3,000/- and Rs.4,500/- p.m. respectively. In view of the said road traffic accident, they have become permanently disabled persons and sought for compensation from the respondents.
5. The 1st respondent in the claim petitions entered appearance i.e. owner of Jeep and filed written statements denying the averments made in the claim petitions with regard to the rash and negligent driving of the offending vehicle. He, however, contended that the offending vehicle is covered by insurance policy and the driver of the offending vehicle was having valid and effective driving license. Hence, the 2nd respondent is to compensate the claimants and sought for dismissal of the claim petitions as against him.
6. The 2nd respondent/Insurance Co. in the claim petition filed written statements denying the averments made in the claim petitions and also contended that the offending vehicle was insured with it as a private car inmates is not covered by the insurance policy. Further, the driver of the offending vehicle was not having valid driving license. Hence, the 1st respondent has violated the policy of the conditions. Therefore, the insurer is not liable to compensate the claimants and sought for dismissal of the claim petitions.
7. On the basis of the pleadings of the parties, the MACT framed necessary issues. The claimants in order prove their case examined themselves as PWs.1 and 2 and examined the treated doctor as PW3 and got marked the documents as Exs.P1 to P51. On behalf of respondents, no witnesses has been examined. However, the insurance policy of the vehicle was marked as Ex.RW1.
8. The MACT after considering the oral and documentary evidence let in by the parties and taking into consideration the spot panchanama, MVI report, charge sheet etc. held that due to the rash and negligent driving of the offending vehicle, the accident had occurred and three claimants sustained injuries and a minor child aged 1½ years by name, Nikhita died in the accident and they are entitled for compensation. The MACT taking into consideration the injuries sustained and suffering undergone awarded a sum of Rs.3,000/- in respect of the first claimant and sum of Rs.6,000/- in respect of the 2nd claimant with interest at 6% p.a. in MVC No.2546/2005. Further, the MACT taking into consideration the injuries sustained and fracture of right radius, right pubis and 3rd to 8th ribs of left side awarded Rs.2,15,600/- in respect of the claimant in MVC No.2547/2005 with interest at 6% p.a. The MACT relying upon the judgment of this Court reported in ILR 2003 Kar. 1521 awarded global compensation of Rs.1,50,000/- in respect of the death of minor child of the claimant in MVC No.2548/2005 with interest at 6% p.a.
9. With regard to the liability is concerned, though the insurer taken a contention that the insurance policy is not covered the risk of inmates, it is only a private car, the MACT on verification of Ex.R1, insurance policy of the offending vehicle found that the said policy was valid from 5.5.2005 to 04.05.2006. The offending vehicle has got seating capacity of 9 persons. The premium amount of Rs.700/- was paid to cover additional loading apart from the regular premium of Rs.700/-. The policy issued by the insurer in respect of the offending vehicle covers the risk of 9 passengers. Taking into consideration of the additional premium paid for extra loading, the MACT held that even though the claimants are gratuitous passengers, the risk is covered by the policy issued by the insurer and the insurer is liable to compensate the claimants. Being aggrieved by the judgment and award passed by the MACT fastening the liability on the insurer to compensate the claimants, the insurer has preferred MFA Nos.14730 to 14732 of 2007.
10. The claimant in MVC No.2548/2005 being not satisfied with the global compensation of Rs.1,50,000/- in respect of the death of a minor child aged 1½ years has filed MFA No.20540/2008 seeking for enhancement of the same.
11. I have carefully considered the arguments addressed by the Advocates appearing for the parties and perused the judgment and award and oral and documentary evidence.
12. The insurer having not challenged the quantum of compensation, however, confined the relief only with regard to the liability fastened on it. The main contention of the insurer is that the policy issued by it as a private car inmates of the offending vehicle is not covered. Hence, the insurer is not liable to compensate the claimants as the 1st respondent allowed the claimants as gratuitous passengers to travel in the said jeep in violation of the conditions of the policy.
13. On careful verification of Ex.R1 i.e. insurance policy, it is found that though the policy issued as a private car, additional premium has been collected for extra loading. Apart from the premium amount of Rs.700/-, another sum of Rs.700/- has been collected. The seating capacity of the Jeep is 9 persons. The extra premium of Rs.700/- covers the risk of 9 passengers travelling in the said jeep. Even though the claimants are the gratuitous passengers or paid passengers, they were covered by policy issued by the insurer. Hence, the appellants cannot disown the liability to compensate the claimants. The judgment reported in 2013 ACJ 321 (Oriental Insurance Co. Ltd. - vs- Surendra Nath Loomba and others) relied upon by the Advocate appearing for the appellants in MFA Nos.14730 to 14732/2007 is not applicable to the facts of the present case. The Hon'ble Supreme Court while dealing with the nature of policy held that the vehicle having act policy, liability of insurer is limited, whereas in the present case, the policy issued by the insurer covers the risk of 9 passengers in the jeep. Hence, the contention of the insurer cannot be acceptable and the insurer has to compensate the claimants.
14. Insofar as the quantum of compensation questioned in MFA No.20540/2008 is concerned, in the road traffic accident occurred on 14.6.2005 due to the rash and negligent driving of the offending vehicle by its driver, the minor child aged about 1½ years of the claimant died in the spot. The global compensation of Rs.1,50,000/- awarded is on the lower side. The Hon'ble Supreme Court relying upon Wadhwa's case in 2001 ACJ 1735, the accident occurred on 3.3.1989, awarded compensation of Rs.4,01,000/- to the parents of the deceased child, who were students of 4th standard to 10th standard. At the young age, the mother has lost her 1½ year old child, a sum of Rs.1,50,000/- awarded as global compensation is on the lower side.
15. Taking into consideration of various judgments of the Supreme Court, I am of the opinion that it is a fit case to enhance the global compensation by another sum of Rs.2,00,000/- in addition to the global compensation of Rs.1,50,000/- awarded by the MACT in MVC No.2548/2005. Accordingly, I pass the following:
ORDER
MFA Nos.14730 to 14732 of 2007 filed by the Insurance Co. are dismissed.
MFA No.20540/2008 filed by the claimant in MVC No.2548/2005 is allowed in part entitling for global compensation of Rs.2,00,000/- in addition to the global compensation of Rs.1,50,000/- awarded by the MACT. Out of the enhanced global compensation, Rs.1,50,000/- shall be deposited in fixed deposit in the name of the claimant for a period of five years in any Nationalised or Schedule Bank of her choice.