Jharkhand High Court
Oriental Insurance Co. Ltd., Ranchi vs Jashmani Kongari And Anr. on 22 February, 2001
Equivalent citations: 2003ACJ155
ORDER Guru Sharan Sharma, J.
1. Heard the parties and with their consent, this appeal is disposed of under Order 41, Rule 11 of the Code of Civil Procedure, On 22.12.1992, one Samuel Kongari, aged about 45 years, was travelling on Tata 407 Bus (BR 14-8786). He was sitting on the roof of the bus. In between Gumla and Jitutoli, at Lasiamor, on account of rash and negligent drive of the bus, he was thrown away from the roof of the bus and died. His widow filed MJC No. 11 of 1993, under Section 166 of the Motor Vehicles Act, 1988, for compensation. It was established that accident took place for the fault of driver of the bus. It was also established that out of his earnings, the deceased was spending a sum of Rs. 1,000/- every month for maintenance of his family. So, annual dependency was calculated at Rs. 12,000/- and 15 multiplier was used. Thus, total amount of compensation was calculated at Rs. 1,80,000/-. The insurance paper of the vehicle, involved in the accident, was brought on record and marked Ext. 3. On perusal of Ext. 3, it was found that a premium of Rs. 2,310/- was paid for 21 passengers against third-party risk. It is submitted that when it was found that due to rash and negligent drive, the deceased fell down from the roof of the bus, there was contributory negligence on the part of the deceased also, when negligently he had taken risk of travelling on roof of the bus. He took this risk and therefore, he definitely contributed to negligence. It is further submitted that deceased was aged about 45 years and, therefore, 15 multiplier, which was used by the Tribunal, was not the appropriate multiplier, rather it should have been maximum 12. I find force in the aforesaid submissions. In my view, the deceased also contributed at least to the extent of 25% in the accident, by travelling on roof of the bus on his own accord. Secondly, considering age of the deceased, 12 was the appropriate multiplier to be used in this case. Thus, applying 12 multiplier, total amount of compensation conies to Rs. 1,44,000/- and after deducting 25% (Rs. 36,000/-) thereof, on account of contributory negligence on the part of the deceased, the amount comes to Rs. 1,08,000/-.
2. Mr. Chatterjee, counsel for appellant-Insurance Company further submitted that Section 123 of the Motor Vehicles Act prohibits travelling on the top of a motor vehicle. Further. Rule 118 (2) (xvi) of the Bihar Motor Vehicles Rules prohibits passangers to travel on any exterior part of stage-carriage. As such, in terms of the Insurance policy, the Insurer was not liable to indemnify owner's liability, if the vehicle was being used otherwise than in accordance with the limitations as to the use. There was no permit for carriage of passangers on the roof of the Bus. The appellant-Insurance Company was, therefore, not liable to pay any compensation.
3. The Insurance Policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the Insured on account of risks covered by the Insurance Policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured can not claim anything more than what is covered by the Insurance Policy. That being so, the insured has also to act strictly in accordance with the statutory limitations or terms of the policy expressly set out therein. In the present case, the deceased passenger was not prevented, rather was allowed to travel on the roof of the bus and as such, it amounted to breach of a condition of the Insurance policy and for the tortious act on behalf of owner of the vehicle, the insurer was not liable.
4. I, therefore, hold that the entire amount of compensation, calculated above at Rs. 1,08,000/- with interest @ 12% per annum from the date the claim application was filed till payment, is payable by owner respondent No. 1 and not the insurer appellant.
5. This appeal is disposed of with aforesaid observations and directions and modification in the impugned order and awards.
6. Accordingly, statutory amount of Rs. 25,000/- deposited by appellant in this appeal, by challan No. J-93 dated 2.12.1999 is permitted to be with drawn by appellant.
on proper verification and in accordance with law.
7. Appeal disposed of.