Research › Search › Judgment

Jharkhand High Court · body

2008 DIGILAW 1108 (JHR)

New India Assurance v. Jahoda Devi

2008-09-10

JAYA ROY, M.Y.EQBAL

body2008
Order Heard the counsel for the appellant Insurance Company, learned counsel appearing for the owner of the motorcycle as also the learned counsel appearing on behalf of the claimants and with their consent both the appeals are disposed of at the admission stage itself. 2. The appellant-Insurance Company has assailed the impugned judgment and award passed by Motor Vehicles Accident Claims Tribunal .. Hazaribagh in Claim Case No. 96/2002 whereby the Tribunal awarded compensation for the death of the deceased who was travelling on the two wheeler as a pillion rider. 3. Undisputed facts, in brief, are that the deceased Binod Kumar Thakur alongwith one Mukesh Kumar' Sahu was returning to their village on their motorcycle bearing no. JHO 2H-1443 and when they reached near 81. Columbus College. Hazaribagh a Maruti Van dashed the motorcycle as a result of which both the occupants of the two wheeler sustained injuries and the pillion rider, Binod Kumar Thakur, ultimately died. The owner of the two wheeler, on the one hand, took defence that the two wheeler was duly insured with the Insurance Company and, therefore, whatever compensation was awarded, shall be payable by the Insurance Company. The appellant-Insurance Company took defence that the deceased who was travelling as a pillion rider was not covered under the policy inasmuch as no additional premium was paid covering the risk of the pillion rider and, therefore, the Insurance Company has no liability. 4. In support of its contention the Insurance Company produced the insurance policy which was marked Ext. A. The Tribunal, after considering insurance policy, came to the finding that since the policy covers the risk of any person who is a third party, the Insurance Company cannot disown its liability. For better appreciation para 9 of the judgment in which issue no. 5 with regard to liability has been dealt with, is reproduced herein below:- "9. From the perusal of W.S. of O.P. No. 1 and O.P. NO.2 as well as insurance policy document, it appears that motorcycle no. JHO 2H-1443 was validly insured on the date of accident with O.P. No. 2 (New India Assu. Co.). 5 with regard to liability has been dealt with, is reproduced herein below:- "9. From the perusal of W.S. of O.P. No. 1 and O.P. NO.2 as well as insurance policy document, it appears that motorcycle no. JHO 2H-1443 was validly insured on the date of accident with O.P. No. 2 (New India Assu. Co.). During course of argument, the learned lawyer for the O.P. No. 2"however submits that deceased was a patio rider of the motorcycle at the time of accident and O.P. No. 1, who is owner of motorcycle had not paid any premium to the O.P. NO.2, which cover the risk of pillion rider or driver of vehicle, as such O.P. NO.2 is not liable to pay any compensation to the claimant to indemnity the liability of C.P. NO.1. In support of his argument, the learned lawyer for the O.P. NO.2 has placed his reliance on the decision of Hon'ble High Court of Kerela reported in JCR, page-393 Maheww Joseph vs. Janaki and also place his reliance on the decision of Hon'ble Apex Court reported in JCR, page-9 S.C. United India Insu. Co. vs. Tilak Singh & ars. and submits that there must be a specific coverage and when there is no specific coverage of risk, the Insurance Co. is not liable to pay compensation. In reply, the learned lawyer for the claimant however submits that no reliance can be placed on the letter of Branch Manager, New India Assu. Co .. H. Bag, which has been marked 'Y' for identification on behalf of C.P. No. 2 and decision cited and referred by learned lawyer for the C.P. NO.2 is also not applicable in the present fact and circumstances of this case because the insurance policy viz. Ext. A is very clear on this point. In para 2 liability to third party on insurance policy document itself mentioned that "death of or bodily injury to any person including persons conveyed in or on the motorcycle provided such person is not carried for hire or reward". So it is clear that policy issued by C.P. No. 2 is also covered risk of pillion rider. From the perusal of case record and Ext. A, the submission of learned lawyer for the claimant seems to be correct. So it is clear that policy issued by C.P. No. 2 is also covered risk of pillion rider. From the perusal of case record and Ext. A, the submission of learned lawyer for the claimant seems to be correct. It is admitted case that deceased was a pillion rider and he was not being carried on the motorcycle for hire, as such from the perusal of Ext. A, it is clear that insurance policy issued by O.P. No. 2 also covers the risk of pillion rider and in this fact and circumstance, decision cited and relied upon by the learned lawyer for the O.P. No. 2 is not applicable in the present case, as such issue No. V is being decided in favour of claimant." 5. From perusal of the aforesaid finding it is evidently clear that the Tribunal proceeded on the basis that the deceased was a pillion rider and he was not being carried on the motorcycle for hire purposes. As such, from the policy it is clear that the Insurance Company also covered the risk of the pillion rider. In our considered opinion, the finding recorded by the Tribunal is contrary to the terms and conditions of the insurance policy and also the principles laid down by the Supreme Court in Talak Singh's case [ 2006(4) SCC 404 ] and the recent decision of the Supreme Court in the case of Oriental Insurance Company vs. Sudhakaran K.V. & Ors. (Civil Appeal No. 3634 of 2008). 6. Before referring to the ratio decided by the Supreme Court, we would first like to discuss the terms and conditions of the insurance policy (Ext. A). From the first page which is the schedule appended to the insurance policy, it appears that a premium of Rs. 77/- was paid for covering the public risk i.e. third party risk. A further sum of Rs. 320/- was paid against the own damage premium. From the schedule it does not appear that additional premium was paid covering the risk of pillion rider. The Tribunal referred Section-II of the policy under which the Insurance Company undertook to indemnify the insured in the event of any accident which resulted in death or bodily injury to any person including a person conveyed in or on the motorcycle. There is a IMT. The Tribunal referred Section-II of the policy under which the Insurance Company undertook to indemnify the insured in the event of any accident which resulted in death or bodily injury to any person including a person conveyed in or on the motorcycle. There is a IMT. Clause i.e. IMT 64 in the policy by which the risk of pillion rider is to be covered on payment of additional premium. From this IMT 64 clause it does not appear that the insured, by paying additional premium, also undertook coverage of pillion rider. 7. Coming back to Section-II which deals with the liability to third party, we find that the pillion rider in a motorcycle is not Included within the meaning of third party. This issue has been elaborately discussed by the Supreme Court in Talak Singh's case and Sudhakaran K.V's case (supra). In Tilak Singh's case the Supreme Court observed: "In our view, although the observations made in Asha Rani case were ~n connection with carrying passengers In a goods vehicle, the same would apply with equal force to gratuitous passengers in any other vehicle also. Thus, we must uphold the contention of the appellant-Insurance Company that it owed no liability towards the injuries suffered by the deceased Rajinder Singh who was a pillion rider, as the insurance policy was statutory policy, and hence it did not cover the risk of death of or bodily injury to a gratuitous passengers." 8. Similar view has also been taken by the Supreme Court in other cases including the cases referred to hereinabove. 9. After giving our anxious consideration to the terms and conditions of the insurance policy vis-a-vis the ratio decided by the Supreme Court we are of the definite opinion that the Tribunal has not correctly applied the law with regard to liability of the Insurance Company against a person who travels as a pillion rider. The impugned finding, therefore, cannot be sustained in law. 10. For the aforesaid reasons, this appeal is allowed and the finding with regard to liability of the Insurance Company recorded by the Tribunal is set aside. Consequently it is held that the owner of two wheeler shall be liable to pay the entire compensation amount so awarded by the Tribunal. 11. 10. For the aforesaid reasons, this appeal is allowed and the finding with regard to liability of the Insurance Company recorded by the Tribunal is set aside. Consequently it is held that the owner of two wheeler shall be liable to pay the entire compensation amount so awarded by the Tribunal. 11. So far M.A. 348/2007 is concerned which has been filed by the claimants for enhancement of compensation amount, we are of the view that having regard to the admitted fact that the deceased was traveling as a pillion rider although such pillion rider was not covered under the policy, there is no reason to enhance the amount of compensation of Rs. 2,54,000/- as awarded by the Tribunal. This appeal is, therefore dismissed.