(Prayer: This MFA is filed u/S 173(1) of MV Act against the judgment and award dated 20.09.2019 passed in MVC No.1962/2018 on the file of XX Additional Small Causes Judge and XVIII Additional Chief Metropolitan Magistrate and Member, MACT, Bengaluru (SCCH-22) partly allowing the claim petition for compensation and seeking enhancement of compensation.

This MFA is filed u/S 173(1) of MV Act against the judgment and award dated 20.09.2019 passed in MVC No.1962/2018 on the file of the Court of XX Additional Small Causes Judge and XVIII Additional Chief Metropolitan Magistrate and Member, M.A.C.T., Bengaluru (SCCH-22) and etc.,)

Oral Judgment

D.K. Singh, J.

1. The present appeal has been filed by the claimants impugning the award dated 20.09.2019 passed by the XX Additional Small Causes Judge and 18th Additional Chief Metropolitan Magistrate and MACT, Bengaluru (SCH-22) in MVC No.1962/2018.

2. For the sake of convenience, the parties are referred to as per their rankings before the Tribunal.

3. The grievance of the learned counsel for the appellant is that, the Tribunal while calculating the loss of dependency has not given any compensation towards future prospects of the income of the deceased. He also submits that so far as consortium is concerned, the Tribunal has not awarded just and proper compensation in view of the judgment of the Hon'ble Supreme Court in the case of Sarla Verma and Ors vs. Delhi Transport Corporation & Another 2009(6)SCC121.

4. The learned counsel for the respondents do not dispute the said assertion of the learned counsel for the appellants that the Tribunal has not properly awarded the compensation towards loss of dependency inasmuch as no future prospects have been awarded in respect of the income of the deceased. There are 5 dependants who have been left behind by the deceased and therefore, the consortium should be (40,000 x5) Rs.2,00,000/-.

5. As the accident took place in the year 2016, the notional income in absence of clear proof of the income should be taken as Rs.9,500/- per month plus 40% future prospects minus one fourth towards personal expenses multiplied by 12 and multiplied by 15 has to be applied, which would come to Rs.17,95,500/-, loss of consortium Rs.40,000/- multiplied by 5 which would come to Rs.2,00,000/-. Loss of estate Rs.15,000/- . Transportation charges of dead body and funeral expenses Rs.15,000/-.

6. Considering these undisputed facts, we recalculate the compensation as under:



7. Thus, the claimants are entitled for enhanced compensation of Rs.4,70,500/-. The enhanced compensation shall carry interest at the rate of 6% p.a from the date of the filing of the claim petition till the date of realisation.

8. The respondent's insurance company is directed to deposit the compensation and recover the same from the owner of the vehicle as the vehicle in question was insured by third party / limited liability.

The appeal is partly allowed.

In MFA No.1508/2020

9. The appellant-insurance company has filed this appeal mainly on the ground that as the insurance policy of the car in question in which the deceased was travelling was "liability only" policy, the risk of the occupants was neither covered nor such risk is required to be covered under the provisions of Section 147 of the Motor Vehicles Act, 1988.

10. The learned counsel for the appellant has submitted that no additional premium was paid for the coverage of the occupants of the car in question, and this fact was not in dispute. He, therefore, submitted that the Tribunal has erred in fastening the liability on the insurance company.

11. In support of his submissions, the learned counsel for the appellant has placed reliance on the decisions of the Supreme Court in ORIENTAL INSURANCE COMPANY LIMITED vs SUDHAKARAN K.V. AND OTHERS (CDJ 2008 SC 1040) and ORIENTAL INSURANCE COMPANY LIMITED vs SURENDRA NATH LOOMBA AND OTHERS (AIR 2013 SC 483).

12. We have considered the submissions.

13. The Tribunal has held that the insurance company, in terms of the policy (Act Policy), would not be liable to pay compensation. However, it has been directed that the insurance company should pay the compensation and recover the same from the owner of the vehicle.

14. We have considered the two judgments cited by the learned counsel for the appellant-insurance company and are of the view that under the 'Act Policy', the third party risk of an occupant in the car is not covered.

15. The Supreme Court, in paragraph 19 of the judgment in SUDHAKARAN K.V. (supra), has culled out the principles emerging from the earlier decisions in respect of the 'Act Policy' as under:-

          "(i) The liability of the insurance company in a case of this nature is not extended to a pillion rider of the motor vehicle unless the requisite amount of premium is paid for covering his/her risk;

          (ii) The legal obligation arising under Section 147 of the Act cannot be extended to an injury or death of the owner of the vehicle or the pillion rider; and

          (iii) The pillion rider in a two wheeler was not to be treated as a third party when the accident has taken place owing to rash and negligent riding of the scooter and not on the part of the driver of another vehicle."

16. In SURENDRA NATH LOOMBA (supra), the Supreme Court has held that an "Act Policy" stands on a different footing than a "Comprehensive/Package Policy". The Act Policy does not cover a third party risk of an occupant in a car. Only if the policy is a "Comprehensive/ Package Policy, the liability would be covered.

17. As the policy taken for the car in question was an Act Policy, the risk of the occupants of the car would not be covered under the said policy. The Tribunal has also agreed with the said contention, but has directed the insurance company to pay the compensation as awarded and recover the same from the owner of the vehicle. We do not think that such a direction requires an interference by this Court and therefore, we dismiss this appeal filed by the insurance company.

In view of dismissal of the appeal, pending IAs, if any, do not survive for consideration and accordingly, they stand disposed of.