Karnataka High Court
The Oriental Insurance Co Ltd vs Mohammed Rafi on 23 January, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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MFA No. 116 of 2015
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 116 OF 2015 (MV-I)
BETWEEN:
THE ORIENTAL INSURANCE CO LTD
DO 10, CHENNAI, DWARAKA 2ND FLOOR
NO 79, UTTAMAR GANDHI SALAI,
CHENNAI, TAMILNADU
THROUGH ITS BANGALORE REGIONAL OFFICE
LEO SHOPPING COMPLEX
NO 44/45, RESIDENCY ROAD
BANGALORE-560025.
REP BY ITS DEPUTY MANAGER
Digitally signed
by PAVITHRA B ...APPELLANT
Location: HIGH
COURT OF (BY SRI. S V HEGDE MULKHAND, ADVOCATE)
KARNATAKA
AND:
1. MOHAMMED RAFI @ CHOTU
S/O MOHAMMED USMAN
AGED ABOUT 36 YEARS
R/AT NO 460, GOWRIPET,
KOLAR-563101.
2. THE DIVISIONAL CONTROLLER,
KSRTC, KOLAR-563101.
...RESPONDENTS
(BY SRI. M R NANJUNDA GOWDA, ADVOCATE FOR R1; SMT.
ARUNA BHAT, ADVOCATE FOR SRI. G. LAKSHMEESH RAO,
ADVOCATE FOR R2)
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MFA No. 116 of 2015
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:11.09.2014 PASSED IN MVC
NO.177/2008 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE & CJM, MACT, KOLAR, AWARDING COMPENSATION OF
RS.2,93,600/- WITH INTERET @ 6% P.A FROM THE DATE OF
PETITION.
THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal is filed by the Insurance Company challenging the judgment and award dated 11.09.2014 in MVC.No.177/2008 passed by the Prl. Senior Civil Judge & MACT, Kolar, on the ground that the claim petition is not maintainable as well as on the quantum of compensation
2. Brief facts of the case are that, on 26.02.2008 at about 7.15 pm., the claimant being the driver-cum- owner of the autorickshaw bearing Reg.No.KA-07/5800 was proceeding towards Kolar from Kolaramma tank and at that time, the KSRTC bus bearing reg.No.KA-07/F-763 came in a rash and negligent manner and dashed to his -3- MFA No. 116 of 2015 autorickshaw. Due to which, the claimant sustained compound fracture to his right leg.
3. Heard arguments from both sides and perused the records.
4. Learned counsel for the appellant-Insurance Company submitted that, in the present case, the claimant being the driver of the autorickshaw bearing Reg.No.KA- 07/5800 had dashed against the KSRTC bus. Therefore, it is because of rash and negligent driving by the claimant himself the accident was caused. Therefore, the claim petition filed under Section 163-A of MV Act is not maintainable, since the owner cannot make claim against himself. Therefore, submitted that the claim petition is not maintainable. Further submitted that the quantum of compensation awarded is under the provisions of Section 166, but the claimant is not definite about his case or/ claim either he is entitled under Section 163-A or 166 of -4- MFA No. 116 of 2015 MV Act. Therefore, submitted that the Tribunal has committed error in this regard. Further submitted that the Tribunal has answered Issue No.1 regarding rash and negligent aspect by holding that the driver of KSRTC bus was not rash and negligent, but the accident was caused on account of rash and negligent act of driving by the claimant himself. When this being the fact, the claim petition either under Section 166 or under Section 163-A of MV Act is not maintainable. Therefore, prays to allow the appeal.
5. Learned counsel for the appellant-Insurance Company places reliance on the judgment of the Hon'ble Supreme Court as follows:
i. United India Insurance Co., Ltd., Vs. Harchand Rai Chandan Lal reported in 2005 ACJ 570 (hereinafter referred to as Harchand Rai's case for short);-5- MFA No. 116 of 2015
ii. New India Assurance Co., Ltd., Vs. C.M.Jaya and Others reported in (2002) 2 SCC 278 (hereinafter referred to as C.M.Jaya's case for short);
iii. Uday Achuta Kodiya Yane Mahale Vs. United India Insurance Co., Ltd., and Another reported in 2022 ACJ 800 (hereinafter referred to as Uday Achuta's case for short).
6. On the other hand, learned counsel for respondent No.1 submitted that the Tribunal is justified in awarding compensation against the Insurance Company. Therefore, prays to dismiss the appeal.
7. Learned counsel for respondent No.1 places reliance on the judgments of the Hon'ble Supreme Court and of this Court as follows:
I. C.Subramani Vs., Oriental Insurance Co., Ltd., Salem reported in AIR Online 2022 MAD 499 -6- MFA No. 116 of 2015 (hereinafter referred to as C.Subramani's case for short);
II. United India Insurance Co., Ltd., etc., Vs. Patricia Jean Mahajan and Others etc., reported in 2002 AIR SCW 2920 (hereinafter referred to as Patricia Jean's case for short);
III. Oriental Insurance Co., Ltd., Vs. Dhanbal Kanji Gadhvi and Others reported in AIR 2011 SC 1138 (hereinafter referred to as Dhanbal Kanji's case for short); and IV. National Insurance Co., Ltd., Vs. T.Ramana Reddy and Others in MFA.No.6267/2010 c/w MFA.No.5622/2010 DD.09.12.2020 (hereinafter referred to as T.Ramana Reddy's case for short).
8. Learned counsel for respondent No.2-KSRTC submitted that, in the present case, the claimant himself was rash and negligent in driving the autorickshaw and had dashed against the KSRTC bus and the Tribunal while -7- MFA No. 116 of 2015 answering Issue No.1 has held that the driver of KSRTC bus was not rash and negligent. Therefore, even under Section 163-A of MV Act, liability cannot be fastened on KSRTC. He further argued that while considering the case under Section 163-A of MV Act, the factor to be taken into consideration is that the accident is arising out of the use of the vehicle, which means the tort-feasor driver caused the accident and that vehicle only is considered, but not other vehicle. Therefore, submitted that, even though, under Section 163-A of MV Act, even though, compensation is determined, but KSRTC is not liable to pay any compensation. Therefore, prays to dismiss the appeal as against respondent No.2-KSRTC.
9. Learned counsel for respondent No.2-KSRTC places reliance on the judgments of the Hon'ble Supreme Court as follows:
I. Deepal Girishbhai Soni and Others Vs. United Insurance Co., Ltd., Baroda reported in AIR 2004 -8- MFA No. 116 of 2015 SC 2107 (hereinafter referred to as Deepal Girishbhai's case for short);
10. Upon perusing the judgment passed by the Tribunal, it is observed that the claimant has invoked both the provisions of Section 163-A and Section 166 of MV Act. Therefore, the claimant is not definite about as to which provision he has invoked for claiming compensation. The Tribunal also ought to have held and got clarified as to under which provision the claim petition is to be filed. Therefore, the Tribunal has committed error in not considering the case whether it is under Section 163-A of MV Act or under Section 166 of MV Act, but certainly, the claim petition cannot be filed both under Sections 163-A and 166 of MV Act. The Hon'ble Supreme Court has clarified the position in Deepal Girishbhai's case. Therefore, the claim petitions cannot be maintained simultaneously both under Section 163-A and under Section 166 of MV Act. The Tribunal has framed Issue -9- MFA No. 116 of 2015 No.1 regarding as to whether the driver of KSRTC bus bearing reg.No.KA-07/F-763 was rash and negligent in driving the bus and caused the accident. The Tribunal held that the driver of KSRTC bus was not rash and negligent, but it is held that the claimant himself while driving the autorickshaw had hit the KSRTC bus. Therefore, it is held that the claimant himself was rash and negligent in causing the accident. But the Tribunal had discussed and determined the compensation as if the claim petition is filed under Section 166 of MV Act. Therefore, the Tribunal is not in coherence as to under which section the claim petition is to be entertained. Even the Tribunal held Issue No.1 that the driver of KSRTC bus was not rash and negligent and claimant himself was rash and negligent and caused the accident, then the claim petition would have been dismissed by considering the case as if it is filed under Section 166 of MV Act. But without doing so, entertained the claim petition without ascertaining from the claimant as to under which provision of law the
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MFA No. 116 of 2015claimant is proceeding with the claim petition, but has discussed and determined the compensation as if the case is filed under Section 166 of MV Act. Therefore, this is to be rectified in the present appeal.
11. Upon reconsidering the finding on Issue No.1 is concerned, the Tribunal has correctly evaluated the evidence on record and has rightly come to the conclusion that the driver of KSRTC bus was not rash and negligent and the accident was caused because of rash and negligent driving of auto rickshaw by the claimant himself. The finding given by the Tribunal is that the driver of the bus was not rash and negligent and the claimant himself was rash and negligent, therefore, the claim petition would have to be dismissed, but the Tribunal proceeded to consider the case as if it is filed under Section-166 of the M.V. Act, but this approach of the Tribunal is not correct. Therefore, without remanding the case to the Tribunal, this Court inclines to rectify the judgment and award
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MFA No. 116 of 2015passed by the Tribunal. Therefore, when it is the principle of law that a claim petition cannot be maintained simultaneously both under Sections-163A and 166 of MV Act and when rash and negligence is pleaded by the claimant and when it goes against the claimant himself, then there would not be aspect to consider the case under Section-166 of MV Act. Then remaining thing is to consider the case u/s.163A of M.V.Act. Therefore, even to consider the case u/s.163A of M.V. Act., as per charge- sheet materials, it is concluded that the claimant himself was rash and negligent and caused the accident. The claimant himself is the owner of the auto-rickshaw and caused the accident. Under such circumstances, the maintainability of the claim petition u/s.163A of MV Act can be considered in the light of the judgment of the Hon'ble Apex Court in the case of Ningamma And Another Vs. United India Insurance Company
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MFA No. 116 of 2015Limited1, (hereinafter referred to as 'Ningamma's case) wherein at para-19, it was held as follows:
"19. In Oriental Insurance Co. Ltd. v. Rajni Devi [(2008) 5 SCC 736 : (2008) 3 SCC (Cri) 67] wherein one of us, namely, Hon'ble S.B. Sinha, J. was a party, it has been categorically held that in a case where third party is involved, the liability of the insurance company would be unlimited. It was also held in the said decision that where, however, compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the claimant against the insurance company would depend upon the terms thereof."
12. Further, the Hon'ble Apex Court in the case of Ramkhiladi And Another vs. United India Insurance Company And Another2 (hereinafter referred to as 'Ramkhiladi' case for brevity), has held at para Nos.9.5 and 10 as follows:
1
(2009) 13 SCC 710 2 (2020) 2 SCC 550
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"9.5. It is true that, in a claim under Section 163-A of the Act, there is no need for the claimants to plead or establish the negligence and/or that the death in respect of which the claim petition is sought to be established was due to wrongful act, neglect or default of the owner of the vehicle concerned. It is also true that the claim petition under Section 163-A of the Act is based on the principle of no-fault liability. However, at the same time, the deceased has to be a third party and cannot maintain a claim under Section 163-A of the Act against the owner/insurer of the vehicle which is borrowed by him as he will be in the shoes of the owner and he cannot maintain a claim under Section 163-A of the Act against the owner and insurer of the vehicle bearing Registration No. RJ 02 SA 7811. In the present case, the parties are governed by the contract of insurance and under the contract of insurance the liability of the insurance company would be qua third party only. In the present case, as observed hereinabove, the deceased cannot be said to be a third party with respect to the insured vehicle bearing Registration No. RJ 02 SA 7811. There cannot be any dispute that the liability of the insurance company would be as per the terms and conditions of the contract of insurance. As held by this Court in Dhanraj [Dhanraj v. New India Assurance Co. Ltd., (2004) 8 SCC 553 : 2005 SCC (Cri) 363] , an
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insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorised representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. In the said decision, it is further held by this Court that Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle.
9.6. xxxxx 9.7. xxxxx 9.8. xxxxx 9.9. xxxxx
10. In view of the above and for the reasons stated above, the present appeal is partly allowed to the aforesaid extent and it is observed and held that the original claimants shall be entitled to a sum of Rs 1 lakh only with interest @ 7.5 per cent per annum from the date of the claim petition till realisation. In the facts and circumstance of the present case, there shall be no order as to costs."
13. Therefore, as per the principle of law laid down by the Hon'ble Apex Court in the aforesaid decisions, lays
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MFA No. 116 of 2015down how far the owner can make claim against himself. In the present case, the appellant-insurance company may be the insurer of the claimant in respect of the autorickshaw bearing Reg.No.KA-07/5800, but in the claim proceedings arising out of motor vehicle accident, primarily the claim is against the insured-owner and by virtue of the contract of insurance, the insurance company will indemnify the owner. Therefore, whether the owner can make a claim against himself is permissible as per law is to be considered. In the present case, the owner himself is claiming compensation against himself and just because there is a contract of insurance between the claimant and the appellant, then he sought for indemnify the owner who is claimant himself.
14. As per the principle of law laid down by the Hon'ble Apex Court in the aforesaid judgments, the owner cannot make claim against himself even under Section- 163A of MV Act. The rashness and negligence need not be
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MFA No. 116 of 2015pleaded and established, but at the same time on no fault liability, third party can invoke Section-163A of MV Act. For example, if the driver of the vehicle met with an accident on his own rash and negligence being employee under the employment of the owner of the vehicle, he can claim compensation under Section-163A of MV Act, but that is not permissible where owner himself drives the vehicle and he himself met with an accident without involving any other vehicle.
Even if the claimant has himself dashed the KSRTC Bus, how far the KSRTC is liable to pay by invoking Section-163A of MV Act, is to be considered. Section-163A of MV Act stipulates as follows:
"[163A. Special provisions as to payment of compensation on structured formula basis -
(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorized insurer shall be liable
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to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be."
15. As per this provision, the owner of the motor vehicle or the authorized insurer are liable to pay in case of death or permanent disablement due to the accident arising out of use of motor vehicle. Therefore, the owner making claim against himself is not maintainable. As per Section-163A of M.V. Act, making the owner or the insurance company liable to pay the compensation due to the accident arising out of the use of motor vehicle means, if the driver who is driving the vehicle is the owner himself meets with an accident, on his own rash and negligence, *that vehicle only is to be considered in accident arising out of the said motor vehicle for the purpose of Sec.163-A of the Act. Even if any other vehicle is involved, but the driver of other vehicle is not tort-feaser then other vehicle
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MFA No. 116 of 2015cannot be made liable to pay compensation. Therefore, in the present case, the accident arising out of the use of the motor vehicle means fixing the liability is only on the auto- rickshaw and its insurer, but not on the other vehicle (herein KSRTC bus), just because it was involved in the accident.
*(Emphasis Supplied)
16. The involvement of the vehicle in the accident even though the driver is not rash and negligent as the present case, the claimant himself being the owner of the auto-rickshaw was driving the same and hit the KSRTC bus, therefore for the purpose of considering the aspect that accident arising out of the use of motor vehicle as per Section-163A of M.V. Act means, the claim for compensation is maintainable against the owner and insurer of the auto-rickshaw, but not against the KSRTC bus. Therefore, conclusively it can be held that the accident is occurred by use of motor vehicle means, the
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MFA No. 116 of 2015tort-feaser vehicle only when he used his vehicle only, but not any other vehicle. Therefore, under this principle of law enunciated under Section-163A of M.V.Act, even though the petition is filed under Section-163A of M.V. Act, KSRTC is not liable. Just by taking shelter that there is no need to plead and establish rash and negligence, it can not be said that KSRTC is liable. This aspect of pleading rash and negligence aspect is only concerned to the tort-feaser, but not applicable to non-tortfeaser vehicle. Therefore, the claim petition filed under Section-163A of M.V. Act is not maintainable considering the said facts and circumstances involved in the case.
17. The decision relied on by the learned counsel for the respondent-claimant as stated supra are not applicable as different factual matrix is involved in the above cited decisions and in the present case. Therefore, the purpose of enunciating the provisions of Section-163A of MV Act, is for providing compensation under structural
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MFA No. 116 of 2015formula basis, without harping much on cumbersome process. Sub-section-(2) of Section-163A of M.V. Act, is regarding that there is no need to plead and prove rash and negligence aspect, which is applicable only in respect of Tort-feaser vehicle. Hence, absolutely the non- tortfeaser vehicle at any event is not liable to pay compensation or by insurer on the guise that rash and negligence aspect need not be pleaded and proved.
18. Therefore, even upon reading the words used 'accident arising out of use of motor vehicle' enshrined under sub-section-(1) of Section-163-A of M.V. Act., is concerned, that aspect of pleading of rash and negligence is applicable only to the tort-feaser vehicle, which can be construed as arising out of the use of motor vehicle. As in the present case, even if it is held that on the guise of Section-163A of M.V. Act., KSRTC is also responsible then it may lead to absurd situation. Then if the driver of the KSRTC bus even though simply parked the vehicle in safer
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MFA No. 116 of 2015place and other vehicle hit the bus, like the auto-rickshaw in question in the present case, but making the KSRTC bus is also liable is an absurd situation. Therefore, upon considering the facts and circumstances involved in the case and application of law as discussed above, the claim under Section-163A of M.V. Act., can be made only against the autorickshaw, but not against the KSRTC bus.
19. But in the present case, the claimant himself being the owner and driver of auto-rickshaw caused the accident. Therefore, the claimant himself being the owner is tortfeaser, but he filed claim under Section-163A of MV Act, for claiming compensation against himself only. As stated above, the primary liability is on the owner and the insurance company will come into picture for indemnifying the owner by virtue of contract of insurance. Therefore, when the owner is making claim against himself is not maintainable, then there is no question of indemnifying the owner by the insurance company. Therefore, where
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MFA No. 116 of 2015the owner himself is a tortfeaser by driving the autorickshaw and caused the accident, then he cannot make claim against himself. Therefore, it is not permissible under the eye of law making claim by the owner against himself, then the insurance company is not liable to indemnify the owner. Therefore, the claim under Section- 163A of M.V. Act is not maintainable. Thus, the claim petition is dismissed as not maintainable.
20. The learned counsel for the respondent- claimant submitted that in case the claim petition under Section-163A of M.V. Act, is not maintainable as held above, then by virtue of contract of insurance between the claimant and the appellant-insurance company, the claimant has paid extra premium of Rs.100/-, then the personal accident coverage is provided to the claimant- owner. For this submission, he placed reliance on the judgment of Hon'ble Apex Court in the case of Ramkhiladi stated supra.
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MFA No. 116 of 2015
21. In Ramkhiladi's case stated supra by dismissing the claim petition filed under Section-163A of M.V. Act as not maintainable, the Hon'ble Apex Court has granted compensation under personal accident coverage as per the insurance policy. Further, in Ramkhiladi's case stated supra the owner died, therefore a compensation of Rs.1 lakh was granted as per insurance policy, as it has coverage of personal accident claim. But in the present case, no death is occurred in the accident, this makes difference in factual matrix involved in the case of Ramkhiladi and in the present case.
22. The present case is regarding at the most may be permanent partial disablement as per Doctors evidence. The claimant had sustained 14% of physical disability towards whole-body. Therefore, under these circumstances, where just because insurance policy and extra premium is paid under the personal accident
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MFA No. 116 of 2015coverage, insurance company can be made liable as per insurance policy.
23. Undisputedly, the claimant has paid extra- premium of Rs.100/- but the same is subject to General Regulation No.36A. General Regulation No.36A reads as follows:
"GR.36. Personal Accident (PA) Cover under Motor Policy (not applicable to vehicles covered under Sections E, F and G of Tariff for Commercial Vehicles) A. Compulsory Personal Accident cover for Owner-Driver Compulsory Personal Accident Cover shall be applicable under both Liability Only and Package policies. The owner of insured vehicle holding an effective driving licence is termed as Owner- Driver for the purposes of this section.
Cover is provided to the Owner-Driver whilst driving the vehicle including mounting into/dismounting from or travelling in the insured vehicle as a co-driver.
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NB: This provision deals with Personal Accident cover and only the registered owner in person is entitled to the compulsory cover where he/she holds an effective driving licence. Hence compulsory PA cover cannot be granted where a vehicle is owned by a company a partnership firm or a similar body corporate or where the owner-driver does not hold an effective driving licence. In all such cases, where compulsory P.A. cover for the owner-driver should not be charged and the compulsory P.A. cover provision in the policy should also be deleted. Where the owner-driver owns more than one vehicle, compulsory PA cover can be granted for only one vehicle as opted by him/her.
The scope of the cover, Capital Sum Insured (CSI) and the annual premium payable under this section are as under:-
TYPE OF CAPITAL PREMIUM COVER VEHICLES SUM (RS.) INSURED (RS.) Motorised Two 1 lakh 50/- i) 1005 of CSI for Death, Loss Wheelers of Two Limbs or sight of both eyes or one limb and sight of one eye.
ii) 50% of CSI for Loss of one Limb or sight of one eye.
iii) 100% for Permanent Total Disablement from injuries
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other than named above.
Private Cars 2 lakhs 100/- i) 100% of CSI for Deatyh, Loss of Two Limbs or sight of both eyes or one limb and sight of one eye.
ii) 50% of CSI for Loss of one Limb or sight of one eye.
iii) 100% for Permanent Total Disablement from injuries other than named above.
Commercial 2 lakhs 100/- i) 100% of CSI for Deatyh, Vehicles Loss of Two Limbs or sight of both eyes or one limb and sight of one eye.
ii) 50% of CSI for Loss of one Limb or sight of one eye.
iii) 100% for Permanent Total Disablement from injuries other than those named above.
24. As per above stated General Regulation, if death is caused or 100% permanent total disability from injuries or loss of one limb or sight of one eye has occurred to the insured, then, the claimant is entitled for compensation under the personal accident coverage, as per the submission made by the counsel for the Insurance Company. It is further submission that if the injured has
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sustained partial disablement even if the owner-insured has paid extra premium, but not entitled to compensation. Therefore, it is the assertion of the counsel for the insurance company that only in case of three events as stated in GR 36A only the owner/insured is entitled to compensation otherwise not. He placed reliance on the judgments of the Hon'ble Supreme Court in the cases of United India Insurance Co. Ltd. vs. Harchand Rai Chandan Lal reported in 2005 ACJ 570 and New India Assurance Co. Ltd. Vs. C M Jaya and Others reported in (2002) 2 Supreme Court Cases 278. Therefore, by placing reliance on the above cited judgments, the Learned counsel argued that the Court cannot go beyond the contract of insurance. Covering the risk of personal accident towards the owner- driver is a pure contract of insurance between the parties. Therefore, the owner-insured is liable to stick on GR-36A, hence the present case does not come under the three events. Therefore, submitted that in case of partial disablement even though the doctor stated some
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MFA No. 116 of 2015percentage of disability but not entitled to compensation in case of partial disablement occurred.
25. On the other hand, learned counsel for the claimant places reliance on the judgment of this Court in MFA.No.6267/2010 and connected matters dated 09.12.2020 in the case of National Insurance Company Limited Vs. T.Ramana Reddy that in the case of partial permanent disability of 17.5%, the Court has granted compensation of Rs.70,000/-. Accordingly, prayed in the present case also.
26. In the above stated case, there was partial permanent disability of 17.5% and granted compensation of Rs.70,000/-, but how Rs.70,000/- granted, calculation is not made. Therefore, as per General Regulation No.36A, even though, the present case is not covered under three events in General Regulation No.36A, the owner insured is entitled to compensation by virtue of contract of insurance, since premium is paid. Therefore, the above
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MFA No. 116 of 2015stated judgment is applicable on the ground that even the disability is not coming under three events stated in General Regulation No.36A, but the compensation can be granted according to the proportionate percentage of disability and the sum assured for personal accident coverage. In the present case, the claimant/owner/insured had sustained 14% of partial disablement and the sum assured is Rs.2,00,000/- under personal accident coverage. Therefore, according to this proportion, owner/claimant/insured is entitled.
27. The Supreme Court in Harchand Rai's case was pleased to observe at paragraph (6) as under :
6. The question before us is whether in terms of the policy, the repudiation of the claim of the respondent by the appellant company is justified or not. We have already reproduced the terms of the policy as also the definition of burglary and/or housebreaking as defined in the policy. The definition given in the policy is binding on both the parties.
The policy is a contract between the parties and both parties are bound by the terms of contract. As per the
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MFA No. 116 of 2015definition of the word burglary, followed with violence makes it clear that if any theft is committed it should necessarily precede with violence i.e. entry into the premises for committing theft should involve force or violence or threat to insurer or to his employees or to the members of his family. Therefore, the element of force and violence is a condition precedent for burglary and housebreaking. The term 'burglary' as defined in the English Dictionary means an illegal entry into the building with an intent to commit crime such as theft. But in absence of violence or force the insurer cannot claim indemnification against the insurance company. The terms of the policy have to be construed as it is and we cannot add or subtract something. Howsoever liberally we may construe the policy but we cannot take liberalism to the extent of substituting the words which are not intended. It is true that in common parlance the term 'burglary' would mean theft but it has to be preceded with force or violence. If the element of force and violence is not present then the insurer cannot claim compensation against theft from the insurance company. This expression appearing in the insurance policy came up for interpretation before the English Court and the English Courts in no uncertain terms laid down that burglary or theft has to be preceded with force or violence in order to be indemnified by the insurance company. In this connection reference may be made the statement of law as summarized in Halsbury's Laws of England Fourth Edition ( 203 Reissue) Para 646. It reads as under:
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"646. Forcible and violent entry. The terms of a burglary insurance may exclude liability in certain circumstances unless there is forcible and violent entry into the premises. If so, the entry must be obtained by the use of both force and violence or the definition is not satisfied and the policy does not apply. An entry obtained by turning the handle of an outside door or by using a skeleton key, though sufficient to constitute a criminal offence, is not within the policy since the element of violence is absent. However, an entry obtained by picking the lock or forcing back the catch by means of an instrument involves the use of violence and is therefore covered. The policy may be so framed as to apply only to violent entry from the outside; or the violent entry into a room within the insured premises may be sufficient. In any case, the violence must be connected with the act of entry; if the entry is obtained without violence, the subsequent use of violence to effect the theft, as for instance where a show-case is broken open, does not bring the loss within the policy. "
28. Further, in Jaya's case in paragraph (10) it is held as under :
"10. xxxx Thus, it is clear that the specific clause in the policy being wider, covering higher risk, made all the difference in Amrit Lal Sood case as to unlimited or higher liability. The Court decided that case in the light of the specific clause contained in
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the policy. The said decision cannot be read as laying down that even though the liability of the Insurance Company is limited to the statutory requirement, an unlimited or higher liability can be imposed on it. The liability could be statutory or contractual. A statutory liability cannot be more than what is required under the statute itself. However, there is nothing in Section 95 of the Act prohibiting the parties from contracting to create unlimited or higher liability to cover wider risk. In such an event, the insurer is bound by the terms of the contract as specified in the policy in regard to unlimited or higher liability as the case may be. In the absence of such a term or clause in the policy, pursuant to the contract of insurance, a limited statutory liability cannot be expanded to make it unlimited or higher. If it is so done, it amounts to rewriting the statute or the contract of insurance which is not permissible.
29. The principle of law laid down by the Hon'ble Apex Court is that the parties shall be bound by the contract of insurance and not more than that. In case it is a pure contract between the insurer and the insured, but upon considering the GR 36A regulations, only under the
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MFA No. 116 of 2015three events, the compensation can be granted under PA coverage but not in respect of the other disabilities those require any degree cannot be awarded is some what found to be not logical.
30. Upon considering GR 36 CR regulations, no doubt the capital sum insured covers for three events, it cannot be construed applicable only for those three events because in the accident it cannot be foreseen or accepted that such nature of injuries only occurs. Therefore, when contract of insurance is entered between the parties, basically the insurer has to establish the same. Same may be at fixed sum by mentioning the nature of disabilities and for other categories where it cannot be determined the exact nature of injuries and the CSI amount then, only according to the disability stated by the Doctor, the owner insured can be compensated. It does not mean it is going beyond the contract. The insurance policy either 'liability only policy' or 'comprehensive policy' but basically the
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MFA No. 116 of 2015insurer promised to the insured to pay certain sum according to the injuries sustained or death occurred. For such injuries only, the same shall have to be awarded by the Insurance Company under PA coverage is some what not sound to the practical realities and logic. Therefore, under these circumstances, even though in GR 36 A for three categories of disabilities or death, the CSI amount is covered also in other cases of partial disablement, as proved from the medical evidence, the compensation to be granted under personal accident coverage is also covered.
31. Therefore, in the present case, on the medical evidence it is proved that the claimant/owner/insured has sustained 14% partial disablement then he is entitled to that extent of Capital Sum Insured (CSI). The insured/owner has paid extra premium of Rs.100/- and capital sum mentioned as Rs.2,00,000/-. Therefore, 14% of Rs.2,00,000/-, the insured owner is entitled which comes to Rs.28,000/-. Accordingly, a sum of Rs.28,000/-
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MFA No. 116 of 2015is awarded under the personal accident coverage. Therefore, for the aforesaid reasons, the appeal filed by the Insurance Company is allowed. The judgment and award passed by the tribunal is modified holding that the claim petition filed presumably under section 163A is not maintainable. Thus, the claim petition is to be dismissed. Under the personal accident coverage, the owner insured is entitled to compensation of Rs.28,000/- as discussed above.
32. In view of the above discussion, the following is passed :
ORDER
i) Appeal is allowed;
ii) The impugned judgment and award of the Tribunal is set aside;
iii) The insured/owner of the Autorickshaw is entitled to receive a compensation of Rs.28,000/- under the personal accident coverage. The excess
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amount if any deposited by the Insurance Company, shall be refunded to the Insurance Company. The balance of Rs.28,000/- to be transferred to the jurisdictional tribunal to be disbursed to the owner of the Autorickshaw.
iv) No order as to costs.
v) Draw award accordingly.
Sd/-
JUDGE
PB - para 1 to 10
JJ - para 11 to 22
RS - para 23 to 30