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Himachal Pradesh High Court · body

2017 DIGILAW 700 (HP)

Prashant Kapoor v. Tulesh Kumar

2017-06-21

AJAY MOHAN GOEL

body2017
JUDGMENT : Ajay Mohan Goel, J. By way of this appeal, the appellant has challenged the award passed by the learned Motor Accident Claims Tribunal II, Mandi in MACT No. 70 of 2008 dated 16.01.2012, vide which, learned Tribunal while allowing the claim petition of the claimants before it, further held that the liability to pay the compensation to the petitioners before it shall be that of respondent No. 1 therein, i.e. the present appellant. 2. A perusal of the award under challenge demonstrates that learned Tribunal below awarded an amount of Rs. 17,07,760/- in favour of the claimants alongwith interest @ 7.5% per annum from the date of filing of the petition till the date of award. It further held that the policy which was taken out by the present appellant with regard to the vehicle in question with the respondent-Company was an ‘Act Only Policy’, which policy covers the risk of only third person, i.e. the person other than those trevelling in the vehicle and, therefore, Insurance Company could not be held liable to pay compensation to the passengers travelling in the vehicle unless extra premium stood paid to the Insurance Company for covering the said risk. While arriving at the said conclusion, learned Tribunal relied upon various judgments, which find mention in the impugned award. Besides this, it further fastened the liability upon respondent No. 1 on the ground also that driver of the vehicle was not possessing a valid driving licence on the date of accident. During the pendency of appeal, as far as the factum of the driver having a valid licence has attained quietus, as on an application so filed by the applicant/appellant under Order 41 Rule 27 of the Code of Civil Procedure and on report in this regard being sought by this Court from Motor Registering & Licensing Authority, Mandi, it stands proved that the driver was having a valid driving licence as on the date when the accident took place. 3. Now, the moot issue which has to be adjudicated by this Court is only as to whether the findings returned by the learned Tribunal to the effect that the liability to pay the award amount was upon the owner is sustainable in law or not. 4. Mr. 3. Now, the moot issue which has to be adjudicated by this Court is only as to whether the findings returned by the learned Tribunal to the effect that the liability to pay the award amount was upon the owner is sustainable in law or not. 4. Mr. G.R. Palsra, learned counsel for the appellant has vehemently argued that the findings so returned by the learned Tribunal are perverse, as learned Tribunal erred in not appreciating the terms of the Insurance Policy in totality. According to him, the terms of the policy have been totally misread and misconstrued by the learned Tribunal. 5. On the other hand, Mr. Ashwani K. Sharma, learned Senior Counsel appearing for the Insurance Company has submitted that there is no merit in the present appeal as the findings returned by the learned Tribunal were duly borne out from the records of the case and there was neither any mis-reading nor any mis-appreciation of the terms of the Insurance Policy, as alleged. It was submitted by Mr. Sharma that the policy in issue was ‘Private Car Liability Policy’ only and the same did not cover the passengers who were travelling in the car and therefore, findings returned to this effect by the learned Tribunal that the compensation amount had to be paid by the owner, could not be faulted with. In support of his contention, Mr. Sharma has also relied upon a judgment passed by this Court in Oriental Insurance Company Ltd. Vs. Sudershna Devi and others, FAO (MVA) No. 403 of 2010, dated 8th September, 2016. 6. Mr. Neel Kamal Sharma, learned counsel appearing for the claimants/respondents has also supported the judgment passed by the learned Tribunal. 7. I have heard the learned counsel for the parties and have also gone through the records of the case as well as the award passed by the learned Tribunal. 8. Insurance Policy is on record as Ex.-RX. A perusal of the same demonstrates that it is a ‘Private Car Liability Only Policy’. The contention of Mr. G.R. Palsra that the conditions contemplated in the same under heading ‘Limitations as to use’ permitting the owner of the vehicle to ply the vehicle for any purpose other than those mentioned in this clause have not been taken into consideration by the learned Tribunal while arriving at its finding, in my considered view, is totally misplaced. G.R. Palsra that the conditions contemplated in the same under heading ‘Limitations as to use’ permitting the owner of the vehicle to ply the vehicle for any purpose other than those mentioned in this clause have not been taken into consideration by the learned Tribunal while arriving at its finding, in my considered view, is totally misplaced. This particular clause has nothing to do with the adjudication which has been done by the learned Tribunal as to upon whom the onus was to indemnify the claimants. Further, it is not the case of any of the parties that the vehicle at the time when the accident took place was being driven in violation of the terms of the Insurance Policy. The contention of the Insurance Company to this effect that the driver was not having a valid driving licence also stands negated. The findings in issue now which have been returned by the learned Tribunal are to this effect that because it was a ‘Private Car Liability Only Policy’, therefore, Insurance Company was not bound to indemnify the claimants as premium in this regard was not paid to the Insurance Company as it was not a comprehensive policy. 9. The factum of the policy not being a comprehensive policy is duly borne out from the terms of the policy. According to Mr. Palsra, because premium stood paid by the owner, therefore, liability, if any, affixed upon the owner has to be indemnified by the Insurance Company. In my considered view, the contention of Mr. Palsra to this effect cannot be accepted because the policy in issue is not a comprehensive policy and the Insurance Company has not covered the risk which now Mr. Palsra wants Insurance Company to pay and in this view of the matter, findings to the contrary returned by the learned Tribunal cannot be faulted with. 10. This Court in Oriental Insurance Company Ltd. Vs. Sudershna Devi and others, FAO (MVA) No. 403 of 2010, decided on 8th September, 2016, while dealing with a similar situation has held that where policy is a ‘Liability Only Policy’ and is not a ‘Comprehensive/Package Policy’ pertaining to a private car, then the Insurance Company cannot be asked to indemnify the insured for those components which are not covered under the policy. 11. 11. While arriving at the said conclusion, this Court has relied upon a judgment of the Hon’ble Supreme Court in National Insurance Co. Ltd. Vs. Balakrishnan and another, 2013 ACJ 199 . Para-21 of the judgment of the Hon’ble Supreme Court which was relied upon by this Court in the judgment (supra) is quoted hereinbelow: “21. In view of the aforesaid factual position, there is no scintilla of doubt that a “comprehensive/package policy” would cover the liability of the insurer for payment of compensation for the occupant in a car. There is no cavil that an “Act Policy” stands on a different footing from a “Comprehensive/Package Policy”. As the circulars have made the position very clear and the IRDA, which is presently the statutory authority, has commanded the insurance companies stating that a “Comprehensive/ Package Policy” covers the liability, there cannot be any dispute in that regard. We may hasten to clarify that the earlier pronouncements were rendered in respect of the “Act Policy” which admittedly cannot cover a third party risk of an occupant in a car. But, if the policy is a “Comprehensive/Package Policy”, the liability would be covered. These aspects were not noticed in the case of Bhagyalakshmi (supra) and, therefore, the matter was referred to a larger Bench. We are disposed to think that there is no necessity to refer the present matter to a larger Bench as the IRDA, which is presently the statutory authority, has clarified the position by issuing circulars which have been reproduced in the judgment by the Delhi High Court and we have also reproduced the same.” 12. Therefore also, there is no merit in the contention of Mr. Palsra because it has been categorically held by the Hon’ble Supreme Court of India that where the policy is an ‘Act Policy’, the same admittedly cannot cover risk of an occupant of a Car and said risk can only be covered if the policy is comprehensive/package policy. 13. Accordingly, in view of the discussion held above as well as the judgments cited above, as there is no merit in the present appeal, the same is accordingly dismissed. Miscellaneous applications, if any, also stand disposed of.