RandB FALCON A PTY LTD vs. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE I

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Appeal From Order No. 59 of 2008

National Insurance Company Limited

-Appellant

Versus Smt. Indu Suri W/o Late Sri Ravi Suri

- Respondent

Sri D.S. Patni, Advocate for the appellant. Sri Pramod Belwal, counsel for respondent.

Hon’ble B.S. Verma, J. (Oral)

This appeal, by insurance company, is directed against the judgment and award dated 4-1-2008, passed by MACT/ District Judge, Rudraprayag, in MACT Case No. 24/2007, whereby a sum of Rs. 8,39,104- has been awarded compensation payable by National Insurance Company along with interest @ 6% per annum.

Brief facts of the case giving rise to this appeal are that on 1.9.2006 at about 8.00 a.m. deceased Ravi Suri was coming Rudraprayag from Khakra in Maruti Car No. U.B.P.A. 8655 and when they reached near Narkot P.S. Rudraprayag, the Maruti Car met with accident due to the negligence of the driver, due to which Ravi Suri died at the spot. According to the claimant the deceased was doing the business of Hardware at Rudraprayag and his annual income was Rs. 1,50,000/- and due to his death the claimant had suffered a huge loss. Therefore, the claim petition has been filed for a sum of Rs. 20,00,000/-.

The National Insurance Company filed the W.S. and denied the averments made in the claim petition. It was alleged that the driver of the car was not having a valid driving license and the deceased/owner of the car was not insured. Therefore the claim petition is liable to be dismissed.

The tribunal, on the basis of pleadings of parties framed following issues- (1) Whether on 1.9.2006 at about 8.00am Maruti Car No. UBPA- 8655, met with accident at Khakra-Narkota, P.S. and District Rudraprayag, due to the rash and negligence of driver, in which Ravi Suri had died?.

(2) Whether on the above date, time and place the vehicle Mauti Car No. U.B.P.A was insured with O.P.No.1 National Insurance Company with all liabilities?. If so, its effect?. (3) Whether at the time of accident the owner of the vehicle deceased Ravi Suri was not insured as per insurance policy and the insurance company is not liable to pay the compensation?. (4) To what amount of compensation the claimant is entitled to get and from whom?.

The claimant examined herself as P.W.1 and per list 8-C fled copies of insurance policy, Pariwar Register, F.I.R., driving license, post mortem, death certificate, income tax returm etc.

The tribunal on issue No.1, gave a finding that there was no other person to witness the accident and applying the maxim of ‘res ipsa loquitor’ has held that the accident had occurred due to rash and negligence of the driver. On the point of valid driving license and valid insurance cover, the tribunal has given the finding that the driver was possessing valid driving license and the vehicle was also having valid insurance and it was insured with National Insurance Company. Accordingly the compensation has been awarded against the insurance company.

Feeling aggrieved, t he insurance company has filed this appeal.

I have heard learned counsel for the parties and perused the record.

The learned counsel appearing on behalf of the appellant has contended that the deceased, who was owner of the Maruti Car, was insured under package policy and the owner has paid a sum of Rs. 100/- towards premium and the liability of insurance company cannot be more than Rs. two lacs.

On the other hand learned counsel for the claimant/respondent has contended that the deceased was occupant of the car and in view of National Insurance Company Ltd. Vs. Balakrishnan & another, reported in 2013 (1) U.D. 08, the comprehensive/package policy would cover the liability of insurer for payment of compensation for occupant of the car.

I have gone through the above cited case. In the cited case the Managing Director of the Company was occupant in the car. The High Court in the cited case has held that the Company and the Managing Director are two difference persons. The Managing Director had signed the registration application on behalf of the Company, therefore, he has been treated occupant of the car and the package policy was treated comprehensive in his case.

In the case at hand the owner of the Maruti Car was himself occupant in the car. This fact has not been disputed. In the case of Dhanraj versus New India Assurance Co. Ltd. and another, reported in (2004)8 SCC 553, it has been held that the owner could only claim from insurance company provided a personal accident insurance had been taken. In the case at hand as per insurance policy it appears that it was package policy and Rs. 100/- had been taken as premium from the owner and the risk was covered to Rs. two lacs. Therefore the claimant is entitled to get a sum of Rs. 2,00,000/- as compensation in lieu of death of her husband, Ravi Suri, who was owner of offending car. The tribunal also awarded a sum of Rs. 2,000/- towards love and affection and a sum of Rs. 5,000/- towards funeral expenses and the claimants are entitled to get these sums. In this way the total compensation comes to Rs. 2,07,000/-.

Therefore the appeal is partly allowed and the impugned award is modified to the extent that the claimant is entitled to get a sum of Rs. 2,07,000/- as compensation from the National Insurance Company along with interest @ 6% per annum from the date of filing the claim petition till the date of actual payment, instead of Rs. 8,39,104/-, as has been awarded by the tribunal.

The awarded amount shall be payable to the widow, mother and son of the deceased in equal share. The amount payable to the Sahil minor son shall be deposited in fixed deposit in some nationalized bank and shall be payable on attaining his majority.

ISB

(B.S. Verma, J.) 13-05-2013