THE HONOURABLE Dr.JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.No.2078 of 2007
JUDGMENT:
The insurer of the M.V.O.P.No.72 of 2003
claim petition 3rd respondent on the file of the
learned Chairman of the Motor Accidents Claims Tribunal–cum–I Additional
District Judge, East Godavari at Rajahmundry (for short, ’Tribunal’) among
the three respondents including the driver and owner of the car bearing No.AP
9F 4455, preferred the appeal impugning the award dated 30.10.2006 of the
tribunal fastening liability on the insurer of the claim awarded of Rs.60,800/-
with interest at 7.5% p.a. out of the claim originally made of Rs.1,00,000/-
from the injured died pending O.P. and later amended to Rs.4,00,000/- as per
the order in I.A.No.2215 of 2005 dated 01.02.2006, with the contentions in the
grounds of appeal filed against the major son of injured claimant (since died)
who is the sufferer came as sole legal representative as 2nd
respondent and the driver and the owner of the crime vehicle i.e. car as
respondent Nos. 3 and 4 of the appeal with the contentions that the policy
Ex.B.1 is only an Act policy and there is no coverage of risk of the inmates of
the car and the insurer cannot be made liable and tribunal gravely erred in not
considering the fact though otherwise quantum may not be much in dispute from
what is the deceased as injured made the claim but after his death the 2nd
claimant being the son entitled only to the loss of estate and not pain and
sufferance to the injuries on the principle of personal action dies with a
person i.e. Actio personalis moritor cum
persona, hence to exonerate the
insurer from liability.
2. Whereas, it is the contention of
the learned counsel for the claimant that the award of the tribunal holds good
and for this court while sitting in the appeal there is nothing to interfere
with the said reasoned award, hence, to dismiss the appeal.
3.
The parties hereinafter are referred to as arrayed before the Tribunal for the
sake of convenience in the appeal.
4. Now
the points that arise for consideration are:-
1) Whether the Order/Award of the learned Chairman of the
Motor Accidents Claims Tribunal–cum-I Additional District Judge, East Godavari in
M.V.O.P.No.72 of 2003 dated 30.10.2006 in fixing liability on the Insurer along
with owner(1st respondent) and driver (2nd respondent) of
the crime vehicle, is not sustainable and requires interference by this Court
while sitting in appeal, if so, with what observations?
2) To what result?
Point No.1:
5. There is no dispute about the manner
of accident but for liability of the insurer. As per the IRDA regulations dated
16.11.2009 (referring to Circular dated 18.03.1978 issued by Tariff Advisory
Committee and further as per the Circular of IRDA dated 03.12.2009 unless the
policy is a package policy covering risk of the inmates of the private car or
pillion rider of the two wheeler by payments of contractual liability as
additional coverage to undertake the Act policy will not cover said risk. For
that the Apex Court
in NIC Vs. Balakrishnan[1]
referring to further expressions so concluded.
Even the Apex Court in Sanjeev
kumar Samrat Vs.NIC[2] and Divisional Manager, National
Insurance Co. Ltd. v. Saju P. Paul[3] hold
that unless there an additional coverage of risk by any package policy, the Act
policy will not cover the risk other than those enumerated in Sub-clauses (a), (b) and (c)
of proviso (i) to Section 147 (1) of the M.V.Act. From this, a perusal of Ex.B.1 also shows it
is only an Act policy and not covers the risk by payment of any additional
premium for the inmates of the car and the sole claimant-injured was inmate of
the car from the admitted case of the claimant even after his death the son
major son came on record as legal representative for entitlement to the loss of
estate from death of his father as death is not proved outcome of the injuries
sustained in the accident but otherwise. As such, the tribunal went wrong in
fixing joint liability instead of exonerating the Insurer. Accordingly, Point
No.1 is answered.
POINT
No.2:
6. In the result, the appeal is allowed
exonerating the Insurer-3rd respondent of claim petition-the
appellant herein) from joint liability. There
is no order as to costs. Rest of the award of the tribunal holds good. Consequently,
miscellaneous petitions, if any, pending in this appeal shall stand closed.
_______________________
Dr. B. SIVA SANKARA RAO, J
Date: 23.12.2014
VVR
