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Rajasthan High Court · body

2011 DIGILAW 2716 (RAJ)

Vishambhar Dayal v. Deen Dayal Halwai

2011-12-09

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—The defect pointed out in the cross-objection is waived. 2. These two matters, one - SBCMA No.2143/2007 has been filed by the claimant-appellant for enhancement of compensation and for setting aside the finding of the Motor Accident Claims Tribunal, Hindaun City, District Karauli in award dated 1/3/2007, whereby it has exonerated respondent No.2-The United India Insurance Co.Ltd. from its liability to pay compensation to the claimant and another – SB Civil Cross Objection No.98/2011 has been filed by the owner seeking similar direction to the insurance company to make payment of compensation jointly and severally. 3. Contention of Shri Vinay Mathur, learned counsel appearing for the claimant-appellant is that amount of compensation is towards the lower side and finding of the learned Tribunal exonerating the respondent insurance company from its liability to pay compensation is liable to be set-aside. 4. Somewhat similar contention of Shri Ajay Shukla, learned counsel appearing for the cross-objector owner is that the learned Tribunal has erred in law while absolving the respondent-Insurance Company from the liability of making payment of compensation to the claimant. In support of his contention, learned counsel for the appellant-owner cited the judgment of Supreme Court in General Manager, United Insurance Co.Ltd. (The) vs. M.Laxmi & Ors. : MACD 2008 (SC) 418 to argue that policy in the present case being the package policy therefore, in view of aforesaid judgment of Supreme Court, the respondent-insurance company has to be held liable to indemnify the owner for payment of compensation. 5. I have heard heard learned counsel for the parties, perused the award and the case law cited on the subject. 6. The Supreme Court in Amrit Lal Sood And Another vs. Kaushalya Devi Thapar And Others : (1998) 3 SCC 744 = RLW 1998(2) SC 229 held that in a case of comprehensive insurance policy, the terms of the contract of insurance can be wider than prescribed by the statute. If under the policy insurer agreeing to indemnify the insured against all sums, which the insured shall become legally liable to pay in respect of death of or bodily injury to "any person", the words 'any person' would include gratuitous passenger. If under the policy insurer agreeing to indemnify the insured against all sums, which the insured shall become legally liable to pay in respect of death of or bodily injury to "any person", the words 'any person' would include gratuitous passenger. In part 8 of the report, Supreme Court held, as under:- "Thus under Section II(1)(a) of the policy the insurer has agreed to indemnify the insured against all sums which the insured shall become legally liable to pay in respect of death of or bodily injury to "any person". The expression "any person" would undoubtedly include an occupant of the car who is gratuitously travelling in the car. The remaining part of clause (a) relates to cases of death or injury arising out of and in the course of employment of such person by the insured. In such cases the liability of the insurer is only to the extent necessary to meet the requirements of Section 95 of the Act. Insofar as gratuitous passengers are concerned there is no limitation in the policy as such. Hence under the terms of the policy, the insurer is liable to satisfy the award passed in favour of the claimant. We are unable to agree with the view expressed by the High Court in this case as the terms of the policy are unambiguous." 7. This issue cropped up before the Delhi High Court in Yashpal Luthra and Anr. vs. United India Insur. Co.Ltd. and Anr. arising out of Mac.App.No.176/2009 decided on 9/12/2009, wherein it was noted by the High Court that tariff as well as terms and conditions of the Insurance Policy was regulated by Tariff Advisory Committee (for short, "TAC") till 31/12/2006 and thereafter by the Insurance Regulatory and Development Authority (for short, "IRDA") under the Insurance Act, 1938. TAC issued a Circular dated 18/3/1978 to all the Insurance Companies to cover the risk of occupants in a private car under comprehensive policy w.e.f. 25/3/1977. TAC vide then subsequent Circular dated 2/6/1986 directed all the Insurance Companies to cover the risk of a pillion rider on a two-wheeler under the comprehensive policy. Comprehensive policy was later styled as "package policy". The Delhi High Court in the aforesaid case summoned all the insurance companies, which admitted their liability to indemnify the owner for payment of compensation to the claimant in respect of the bodily injury or death in a motor accident. Comprehensive policy was later styled as "package policy". The Delhi High Court in the aforesaid case summoned all the insurance companies, which admitted their liability to indemnify the owner for payment of compensation to the claimant in respect of the bodily injury or death in a motor accident. In fact, the IRDA issued a circular dated 6/11/2009 to all the Chief Executive Officers of the Insurance Companies clarifying the position relating to the liability of Insurance Companies in respect of a pillion rider on a two-wheeler and occupants in a private car under the comprehensive/package policy. IRDA convened the meeting of all the Chief Executive Officers on 26/11/2009, who admitted their liability in respect of occupants in that respect and insurance companies agreed to comply with the Circular dated 16/11/2009 issued by the IRDA and further to withdraw the contrary plea wherever taken before the Motor Accident Claims Tribunals and accordingly to issue instructions to their respective lawyers. In those facts, it was held by the Delhi High Court in para 27 of the report, as under:- "In view of the aforesaid, it is clear that the comprehensive/ package policy of a two wheeler covers a pillion rider and comprehensive/package policy of a private car covers the occupants and where the vehicle is covered under a comprehensive/package policy, there is no need for Motor Accident Claims Tribunal to go into the question whether the Insurance company is liable to compensate for the death or injury of a pillion rider on a two-wheeler or the occupants in a private car. In fact, in view of the TAC's directives and those of the IRDA, such a plea was not permissible and ought not to have been raised as, for instance, it was done in the present case." 8. In M.Laxmi supra, a reference was made to the Circular dated 2/6/1986 with regard to compensation payable to the pillion riders in case of comprehensive policy and it was held that standard form for motorcycle should cover liability to pillion passengers in case of comprehensive policy but policy in that case was an Act Policy therefore, the insurance company was held not liable. 9. 9. On consideration of material on record, however, I am not persuaded to enhance the amount of compensation and appeal filed by the claimant-appellants is liable to be dismissed but in the light of the aforesaid judgments of Supreme Court and Delhi High Court, the appeal filed by the owner deserves to be succeeded. 10. In the result, S.B. Civil Misc.Appeal No.2143/2007 (Vishambhar Dayal vs. Deen Dayal & Anr.) is allowed. The finding recorded by the Motor Accident Claims Tribunal, Hindaun City, District Karauli in award dated 1/3/2007 absolving respondent No.2-United India Insurance Co.Ltd. from its liability to pay compensation to the claimant is set-aside and it is directed that The United India Insurance Co.Ltd.-respondent No.2 shall indemnify the owner of the vehicle for full amount of compensation as awarded by the Tribunal and to make payment of compensation jointly and severally in the light of the judgments aforesaid. 11. In the light of the aforesaid direction, S.B. Civil Cross Objection No.98/2011 (Vishambhar Dayal vs. Deen Dayal & Anr.) stands disposed of. 12. Compliance of the judgment shall be made within a period of three months from the date, certified copy of this order is produced before the respondent-Insurance Company.