Punjab-Haryana High Court
Iffco Tokio General Insurance Co.Ltd vs Ramesh Rani And Others on 13 January, 2014
Author: K. Kannan
Bench: K. Kannan
Archana arora
FAO No. 2697 of 2010 1 2014.01.17 17:06
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IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
FAO No. 2697 of 2010
Date of decision January 13, 2014
IFFCO TOKIO General Insurance Co.Ltd.
....... Appellant
Versus
Ramesh Rani and others
........ Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
Present:- Mr. Raghujeet Singh Madan, Advocate
for the appellant.
Mr. Dheeraj Narula, Advocate
for respondent Nos. 1 to 3 and 6.
Mr. Amandeep Singh Saini, Advocate for
Mr. P. S. Jammu, Advocate
for respondent Nos. 4 and 5.
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1. Whether reporters of local papers may be allowed to see the judgment ?
2. To be referred to the reporters or not?
3. Whether the judgment should be reported in the digest?
K. Kannan, J (oral).
1. The appeal is at the instance of the Insurance Company challenging the liability and quantum.
2. The deceased was travelling in a tractor and when he was alighting from the same he was run over by the tractor. The rashness and negligence of the driver was an established fact and the Insurance Company was made liable.
3. On an issue of liability it must be noticed that the tractor is a Light Motor Vehicle and as per the definition under Section 2 (44) of the Motor Vehicles Act, 1988 it is not constructed to carry any load other than equipment used for the purpose. A tractor FAO No. 2697 of 2010 2 cannot carry any passenger except when a trolley is attached and the persons travelling in the trolley are the load men. In such an event the Insurance Company will provide indemnity for the owner of the tractor. In this case the deceased has a gratuitous travelling in a tractor and there was no compulsion for undertaking the coverage for such a passenger. This point has been specifically dealt with by this Court in New India Asssurance Co. Ltd. Vs. Surinder Kaur in FAO NO. 635 of 2005 decided on 1.9.2010. This judgment has been rendered by making reference to the judgments of the Supreme Court in New India Assurance Co. Ltd. Vs. Vedwati 2007 (9) SCC 486 and National Insurance Co. Ltd. Vs. Chinamma and others (2004) 8 SCC 697. The Court has also dealt with in paras 2 and 7 the different situations where the labourer travelling in a trolley would have a full insurance cover, unlike an ordinary traveller on the mudguard of the tractor or elsewhere. Having regard to a specific point raised and considered by this court, I do not feel necessary to refer to the other judgments referred by the counsel of Delhi High Court and Andhra Pradesh High Court. I will choose to follow this Court's own ruling by due consideration of the relevant judgments of the Supreme Court and would find the Insurance Company could not have been made liable but liability ought to be only on the owner and driver. The indemnity provided to the owner and driver was erroneous.
4. The counsel states that the Insurance Company has already paid a portion of the award having obtained stay in excess of `3 lacs. The said amount of `3 lacs would not be FAO No. 2697 of 2010 3 required to be refunded by the claimants but the Insurance Company will exercise a right of recovery against the owner and driver.
5. As regards the quantum, I have also seen whether the assessment was proper. The deceased was said to be 17 years and 8 months and the Tribunal accepted the age as such. Counsel for the Insurance Company points out that the the postmortem report revealed that he was 15 years of age. Counsel would therefore state that only 15 multiplier must have been taken in terms of the law laid down by the Supreme Court in Reshma Kumari and others Vs. Madan Mohan 2013 9 SCC 65 . In this case even the Insurance Company has in its grounds of appeal taken the age only to be 17/18 and if the mother was stating the age of her son to be 17 ½ years (as I see) I will take that the mother knew the age better than the doctor who issued the postmortem certificate. The income has been taken as `3,000/- and the Court has adopted a multiplier of 16 which I believe again to be appropriate multiplier under the given circumstances. The total compensation of `4,24,000/- would not require to be modified. The excess amount over `3 lacs and interest which has been claimed already by the claimants shall be recovered only against the owner of the vehicle and not against the insurer.
6. The appeal is allowed to be above extent.
(K. KANNAN) JUDGE January 13, 2014 archana