Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 318 (GAU)

Kaustav Gogoi v. Bharati Gogoi

2018-02-20

KALYAN RAI SURANA

body2018
JUDGMENT : Kalyan Rai Surana, J. 1. Heard Mrs. P. Bhattacharya, the learned counsel for the appellants as well as R. Goswami, the learned counsel appearing for the respondent No. 3. None appears on call for the respondents No. 1 and 2, i.e. the owner and driver of the offending vehicle, although notices have been duly served on them, as such, this appeal is heard ex-parte against them. This appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "MV Act") is preferred against the judgment and award dated 31.03.2010, passed by the learned Member, Motor Accident Claims Tribunal, Sivasagar in MAC Case No. 78/2006, whereby an award of Rs. 1,00,000/- was passed in favour of the appellants/claimants on death of their father in a motor vehicular accident. 2. As per the claim petition, on 10.10.05 at about 4:00 AM, the deceased, namely, Late Dr. Thanu Gogoi was proceeding from Guwahati to Sivasagar in a Maruti Car bearing registration No. AS-03/B-7123, which was being driven by the respondent No. 2. When the car reached Dighalati Market, Nagaon, suddenly a herd of cows were crossing the road in a very haphazard manner. In order to save the cows, the driver applied sudden brake. But the car skidded and moved down from the road and hit a tree and turned upside down. The deceased, who was sitting on the front side of the car, sustained grievous injuries. After the accident, he was shifted to a private hospital (GNRC) at Guwahati. On 11.10.2005, he was shifted to New Delhi (Sir Ganga Ram Hospital) and on 1.2.2006, he was shifted to Apollo Hospital, New Delhi. Later on, he was shifted to GMC Hospital, Guwahati and on 12.07.2006, he succumbed due to the injuries sustained by him in the accident. It was stated that the deceased was 62 years of age and retired from Government Service and through his profession, he was he was earning an income of Rs. 25,000/- per month and he had left behind his wife and two sons. It was further projected that a sum of Rs. 11,02,765.56 was spent in his treatment and a total claim of Rs. 35,16,459/- was made. The offending vehicle was stated to be insured by the respondent No. 3. 3. 25,000/- per month and he had left behind his wife and two sons. It was further projected that a sum of Rs. 11,02,765.56 was spent in his treatment and a total claim of Rs. 35,16,459/- was made. The offending vehicle was stated to be insured by the respondent No. 3. 3. The respondents No. 1 and 2 had submitted their written statement, wherein it was stated that the offending vehicle was duly insured with the respondent No. 3 and, as such, the appellants/claimants were not entitled to compensation from the said respondents. A copy of the insurance policy and a copy of the registration certificate of the vehicle were enclosed with the written statement. 4. The respondent No. 3, i.e. the insurer also submitted their written statement, denying their liability and usual pleas were taken, and the appellants/claimants were put to strict proof of their claim. It was further stated that the claim was bad for non-compliance of Section 134(c) of the MV Act, which had made it mandatory for the owner and driver of the vehicle to inform their respective insurer immediately on occurrence of an accident. It was also stated that the claimants were major, who could not claim any dependency when their mother, Dr. Bharti Gogoi, who was the owner of the vehicles was alive. It was also stated that as the claim petition did not disclose for whose fault the accident took place and there was no rash and negligent driving on part of the driver and no police case was registered against the driver, as such, no compensation was payable by them. 5. On the basis of the pleading, the learned Tribunal framed the following issues for adjudication: (i) Whether the vehicle No. AS-03/B-7123 (Maruti Car) was involved in the accident occurred, on 10.10.2005, due to rash and negligent driving of the driver? (ii) Whether the deceased late (Dr.) Thanu Gogoi died in the accident arising out of the use of vehicle No. AS-03/B-7123 (Maruti Car)? (iii) Whether the claimant is entitled to get any compensation? If so, to what extent and by whom it is payable? 6. In support of their claim, the appellants/claimant examined three witnesses, viz., (i) Kaustav Gogoi (Claimant No. 1) as CW-1, (ii) Kaushik Gogoi, (claimant No. 2) as CW-2 and Dilip Gogoi (co-passenger) as CW-3. The following documents were exhibited, viz., Accident Information Report (Ext. If so, to what extent and by whom it is payable? 6. In support of their claim, the appellants/claimant examined three witnesses, viz., (i) Kaustav Gogoi (Claimant No. 1) as CW-1, (ii) Kaushik Gogoi, (claimant No. 2) as CW-2 and Dilip Gogoi (co-passenger) as CW-3. The following documents were exhibited, viz., Accident Information Report (Ext. I), Post Mortem Report (Ext. II), Medical Certificate of death (Ext. III), Certificate issued by Medical Consultant (Ext. IV and V), Copy of Registration Certificate of the Vehicle (Ext. VI), Copy of Insurance (Ext. VII), Driving License (Ext. VIII), Bills and Cash Memo (Ext. IX), Flight Tickets/Memos (Ext. X and XI), Money receipt of GLP Social Service (Ext. XII), Certificate from Gauri Medical (Ext. XIII), Certificate from A.G. Nursing Home (Ext. XIV), Certificate from K.G. Memorial (Ext. XV) and Insurance Policy (Ext. A). In his evidence, the CW-1 had stated that after retirement, his deceased father was doing private practice at Gauri Pharmacy, Thana Road, Jorhat and use to regularly visit A.G. Nursing Home and K.G. Memorial Medical Centre, Jorhat and use to earn Rs. 25,000/- per month from his profession. As per the evidence-in-chief of CW-1, his age was 32 years on the date when his affidavit was sworn i.e. on 20.09.2007. However, in his cross-examination, he had denied that he and his brother were major at the time of the accident and not dependent on his father. He had further stated that at the time of the death of his father, his pension matter was not disposed of and he did not draw his pension. He had also admitted that his mother (respondent No. 1), was the owner of the vehicle. It was stated that Indrajeet Gogoi, Respondent No. 2, who was driving the offending vehicle, was not the paid driver at the time of the accident nor employed by his mother. The CW-2, in his cross-examination, denied that he being a major person at the time of the accident was not entitled to compensation as claimed and he had also stated that at the time of the accident, he was dependant on the deceased, being un-employed. In the cross-examination of CW-3, the evidence in respect of the accident could not be demolished. 7. In support of the defence, the respondent No. 3 i.e. the insurer examined one, Prasanta Katoky, the Branch Manager of the Sivasagar Branch of the respondent No. 3. In the cross-examination of CW-3, the evidence in respect of the accident could not be demolished. 7. In support of the defence, the respondent No. 3 i.e. the insurer examined one, Prasanta Katoky, the Branch Manager of the Sivasagar Branch of the respondent No. 3. He had stated that as per the policy, personal accident liability to three un-named passengers was for Rs. 1,00,000/- each. It was stated that the deceased was a passenger of the insured car. It was also stated that there was no rash and negligent driving by the driven and it was necessary to prove negligence on part of the driver for making the insurer liable. It was stated that police had not registered any case against the driver for rash and negligent driving and, as such, the insurer was not liable to pay any compensation to the claimants. In his cross-examination, DW-1 denied that limited liability clause in Ext. A i.e. the insurance policy was illegal and inoperative in law. He had further stated that the certificate of insurance did not contain the limited liability clause contained in the policy i.e. Ext. A, where limited liability clause is there. He had also stated that the certificate of insurance contained a clause showing liability up to Rs. 7,50,000/-. He had also stated that: "it is a fact that the certificate of insurance contends various terms and conditions except personal accident to un-employed passenger up to Rs. 1,00,000/- per person liability." However, he had denied that the above mentioned clause was illegally inserted to avoid liability. 8. The learned counsel for the appellants submit that in this case the accident had occurred when suddenly a herd of cows started to cross the road and the driver of the vehicle had to apply sudden brakes for which the car after skidding on the road, fell down in a ditch after turning upside down and dashed against a road side tree. Therefore, this itself established that there was rash and negligent driving of the vehicle by the driver. Hence, as per the learned counsel for the appellant this was a case where principles of res ipsa loquitur was applicable and the appellants were entitled to compensation because they could only have stated about the accident but could not have proved the rash and negligent driving. Hence, as per the learned counsel for the appellant this was a case where principles of res ipsa loquitur was applicable and the appellants were entitled to compensation because they could only have stated about the accident but could not have proved the rash and negligent driving. It is further submitted that the deceased was traveling as the passenger in the offending vehicle and that the vehicle was duly insured by a comprehensive insurance policy/package policy for which premium for personal accident coverage for three un-named person were charged. The said policy was exhibited as Ext. A and Ext. A(1). By referring to the case of National Insurance Co. Ltd. Vs. Balakrishnan & Anr., (2013) 1 SCC 731 , it is submitted that as all the passengers were duly covered by valid insurance policy, the learned Tribunal had erred in law in limiting the quantum of compensation of Rs. 1,00,000/- only and in this connection it is submitted that instead of the awarded sum, the appellant was entitled to just and fair compensation on account of loss of income and/or on account of dependency. It is submitted that as per the claim petition, the compensation on account of loss of income was Rs. 10,02,000/-. Further relying on the recent judgment of the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi & Ors., (2017) 8 Supreme 107 , it is submitted that in addition to the compensation, the appellants are entitled to compensation under conventional heads of loss of estate, loss of consortium and funeral expenses. 9. Per contra, the learned counsel for the respondent No. 3, i.e. the insurer has submitted that the appellants are not entitled to any enhancement because as per the contents of the insurance policy, the limit for compensation was Rs. 1,00,000/- per person as per Ext. A(1). It is further submitted that the claimants were both major, having their independent income. It is submitted that they appellants were doctors by profession and therefore, not dependents on income of the deceased. Moreover, the vehicle was owned by the mother of the claimants, i.e. the wife of the deceased who herself was the doctor and that she was also entitled to inherit the estate of the deceased. Therefore, she could not be both the payer of compensation as well its receiver. Moreover, the vehicle was owned by the mother of the claimants, i.e. the wife of the deceased who herself was the doctor and that she was also entitled to inherit the estate of the deceased. Therefore, she could not be both the payer of compensation as well its receiver. Hence, the learned counsel for the respondent No. 3 disowned the liability of paying any enhanced compensation. 10. On the basis of the submissions made by the learned counsel for both sides, the following points of determination arise in this case: 1. Whether the liability arising out of the death of the passenger could be limited to Rs. 1,00,000/- in respect of the offending vehicle which was insured under a comprehensive/package policy? 2. Whether the appellants were entitled to enhancement of compensation? 3. Whether the appellants were entitled to any compensation? 11. The point of determination No. 1 is taken up first. A similar question arose for determination before the Hon'ble Supreme Court in the case of Bhagyalakshmi & Ors. Vs. United Insurance Co. Ltd. & Anr., (2009) 7 SCC 148 . The Hon'ble Apex Court approved the ratio laid down by the Hon'ble Madras High Court in the case of Royal Sundaram Insurance Co. Ltd. Vs. V.A. Meenakshi & Ors. (C.M.A. No. 312 of 2009) by which compensation was awarded to the legal representative of the deceased passenger of insured vehicle. The relevant paragraph 27 is extracted below: "27. The question as to whether gratuitous passengers travelling in a private car or pillion riders carried on two-wheelers are automatically covered under a package policy/comprehensive policy came up also before The Madras High Court recently in Royal Sundaram Insurance Co. Ltd. v. V.A. Meenakshi and Ors. (C.M.A. No. 312 of 2009). The Division Bench of the Court, after observing the judgment of this court and various High Courts on the subject, dismissing the appeal filed by the insurance company and affirming the order of the Tribunal awarding compensation of Rs. 19.10 Lakh to the legal representatives of the deceased passenger of the insured vehicle, held that: "29. Therefore it is clear from the Act itself, the words of the policy and the decision in Amrit Lal Sood case (1998) 3 SCC 744 that a Comprehensive Policy covers the risk of a gratuitous passenger to the extent of the liability incurred. 19.10 Lakh to the legal representatives of the deceased passenger of the insured vehicle, held that: "29. Therefore it is clear from the Act itself, the words of the policy and the decision in Amrit Lal Sood case (1998) 3 SCC 744 that a Comprehensive Policy covers the risk of a gratuitous passenger to the extent of the liability incurred. We may imagine what will happen in a case where the owner is driving his car covered by a Comprehensive Policy. He is accompanied by his wife and children. There is an accident as in this case. The wife and children are permanently disabled by the injuries. If we agree with the appellant Insurance Company, those pathetic claimants will not get any compensation. The law never intended this to happen. That is why the TAC explicitly came out with the clarificatory Circular in 1978. We cannot forget that the words used are "third party" and "Comprehensive", so we cannot deny this relief to the third party occupant in a car covered by a Comprehensive Policy." 12. By observing as above, the matter was referred to the Hon'ble the Chief Justice of India for consideration by a larger Bench. However, a similar question again arose subsequently in the case of Balakrishnan (supra). It would be relevant to quote paragraph 18 to 28 of the said case: "18. At this juncture, we may refer with profit to a two-Judge Bench decision in Bhagya lakshmi and others v. United Insurance Company Limited and another, (2009) 7 SCC 148 , wherein the learned Judges took note of the contention of the learned senior counsel for the claimant-appellant which was to the effect that after the deletion of the second proviso appended to Section 95(1)(b) of the Motor Vehicles Act, 1939 in the 1988 Act, the liability of a passenger in a private vehicle must also be included in the policy in terms of the provisions of the 1988 Act. The Bench reproduced the policy, referred to Section 64-B of the Insurance Act, 1938, took note of the role of the Tariff Advisory Committee and referred to the decisions in Amrit Lal Sood and Another v. Kaushalya Devi Thapar and Others, (1998) 3 SCC 744 , New India Assurance Co. Ltd. Vs. Asha Rani, (2003) 2 SCC 223 , United India Insurance Co. Ltd. Vs. Tilak Singh, (2006) 4 SCC 404 , Oriental Insurance Co. Ltd. Vs. Asha Rani, (2003) 2 SCC 223 , United India Insurance Co. Ltd. Vs. Tilak Singh, (2006) 4 SCC 404 , Oriental Insurance Co. Ltd. Vs. Jhuma Saha, (2007) 9 SCC 263 and Oriental Insurance Co. Ltd. Sudhakaran K.V. and Others, (2008) 7 SCC 428 and observed thus: (Bhagyalakshmi case, SCC p. 158, para-25) "25. Before this Court, however, the nature of policies which came up for consideration were Act policies. This Court did not deal with a package policy. If the Tariff Advisory Committee seeks to enforce its decision in regard to coverage of third party risk which would include all persons including occupants of the vehicle and the insurer having entered into a contract of insurance in relation thereto, we are of the opinion that the matter may require a deeper scrutiny." 19. On a perusal of the aforesaid paragraph, it is clear as crystal that the decisions that have been referred to in Bhagyalakshmi (supra) involved only "Act Policies". The Bench felt that the matter would be different if the Tariff Advisory Committee seeks to enforce its decision in regard to coverage of third party risk which would include an occupant in a vehicle. It is worth noting that the Bench referred to certain decisions of Delhi High Court and Madras High Court and thought it appropriate to refer the matter to a larger Bench. Be it noted, in the said case, the Court was dealing with comprehensive policy which is also called a package policy. In that context, in the earlier part of the judgment, the Bench had stated thus:- "13. The policy in question is a package policy. The contract of insurance if given its face value covers the risk not only of a third party but also of persons travelling in the car including the owner thereof. The question is as to whether the policy in question is a comprehensive policy or only an Act policy." 20. Thus, it is quite vivid that the Bench had made a distinction between the "Act policy" and "comprehensive policy/package policy". We respectfully concur with the said distinction. The crux of the matter is what would be the liability of the insurer if the policy is a "comprehensive/package policy". Thus, it is quite vivid that the Bench had made a distinction between the "Act policy" and "comprehensive policy/package policy". We respectfully concur with the said distinction. The crux of the matter is what would be the liability of the insurer if the policy is a "comprehensive/package policy". We are absolutely conscious that the matter has been referred to a larger Bench, but, as is evident, the Bench has also observed that it would depend upon the view of the Tariff Advisory Committee pertaining to enforcement of its decision to cover the liability of an occupant in a vehicle in a "comprehensive/package policy" regard being had to the contract of insurance. 21. At this stage, it is apposite to note that when the decision in Bhagyalakshmi (supra) was rendered, a decision of High Court of Delhi dealing with the view of the Tariff Advisory Committee in respect of "comprehensive/package policy" had not come into the field. We think it apt to refer to the same as it deals with certain factual position which can be of assistance. The High Court of Delhi in Yashpal Luthra and Anr. v. United India Insurance Co. Ltd. and Another, 2011 ACJ 1415 (Del), after recording the evidence of the competent authority of Tariff Advisory Committee (TAC) and Insurance Regulatory and Development Authority (IRDA), reproduced a circular dated 16.11.2009 issued by IRDA to CEOs of all the Insurance Companies restating the factual 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. 22. The relevant portion of the circular which has been reproduced by the High Court is as follows: (Yashpal Luthra case, 2011 ACJ 1415 (Del), ACJ pp. 1419-20, para 20) "Insurance Regulatory Development Authority Ref: IRDA/NL/CIR/F & U/073/11/2009 Dated 16.11.2009 To CEOs of all general insurance companies Re: Liability of insurance companies in respect of occupants of a Private car and pillion rider on a two-wheeler under Standard Motor Package Policy (also called Comprehensive Policy). Insurers' attention is drawn to wordings of Section (II)1(ii) of Standard Motor Package Policy (also called Comprehensive Policy) for private car and two-wheeler under the (erstwhile) India Motor Tariff. Insurers' attention is drawn to wordings of Section (II)1(ii) of Standard Motor Package Policy (also called Comprehensive Policy) for private car and two-wheeler under the (erstwhile) India Motor Tariff. For convenience the relevant provisions are reproduced hereunder: 'Section II - Liability to Third Parties (1) Subject to the limits of liabilities as laid down in the Schedule hereto the company will indemnify the insured in the event of an accident caused by or arising out of the use of the insured vehicle against all sums which the insured shall become legally liable to pay in respect of- (i) death or bodily injury to any person including occupants carried in the vehicle (provided such occupants are not carried for hire or reward) but except so far as it is necessary to meet the requirements of Motor Vehicles Act, the Company shall not be liable where such death or injury arises out of and in the course of employment of such person by the insured.' It is further brought to the attention of insurers that the above provisions are in line with the following circulars earlier issued by the TAC on the subject: (i) Circular M.V. No. 1 of 1978 - dated 18th March, 1978 (regarding occupants carried in Private Car) effective from 25th March, 1977. (ii) MOT/GEN/10 dated 2nd June, 1986 (re-grading pillion riders in a two wheeler) effective from the date of the circular. The above circulars make it clear that the insured liability in respect of occupant(s) carried in a private car and pillion rider carried on two-wheeler is covered under the Standard Motor Package Policy. A copy each of the above circulars is enclosed for ready reference. The Authority vide circular No. 066/IRDA/F & U/Mar-08 dated March 26,2008 issued under File & Use Guidelines has reiterated that pending further orders the insurers shall not vary the coverage, terms and conditions wording, warranties, clauses and endorsements in respect of covers that were under the erstwhile tariffs. Further the Authority, vide circular No. 019/1RDA/NL/F & U/Oct-08 dated November 6, 2008 has mandated that insurers are not permitted to abridge the scope of standard covers available under the erstwhile tariffs beyond the options permitted in the erstwhile tariffs. All general insurers are advised to adhere to the aforementioned circulars and any non-compliance of the same would be viewed seriously by the Authority. This is issued with the approval of competent authority. All general insurers are advised to adhere to the aforementioned circulars and any non-compliance of the same would be viewed seriously by the Authority. This is issued with the approval of competent authority. Sd/- (Prabodh Chander) Executive Director" (emphasis supplied) 23. The High Court has also reproduced a circular issued by IRD dated 3.12.2009. It is instructive to quote the same:- "Insurance Regulatory Development Authority Ref: IRDA/NL/CIR/F & U/078/12/2009 Dated: 3.12.2009 To All CEOs of All general insurance companies (except ECGC, AIC, Staff Health, Apollo) Re: Liability of insurance companies in respect of occupant of a private car and pillion rider in a two-wheeler under Standard Motor Package Policy (also called Comprehensive Policy). Pursuant to the Order of the Delhi High Court dated 23.11.2009 in MAC APP No. 176/2009 in the case of Yashpal Luthra v. United India and Ors., the Authority convened a meeting on November 26, 2009 of the CEOs of all the general insurance companies doing motor insurance business in the presence of the counsel appearing on behalf of the Authority and the leaned amicus curie. Based on the unanimous decision taken in the meeting by the representatives of the general insurance companies to comply with the IRD A circular dated 16th November, 2009 restating the position relating to the liability of all the general insurance companies doing motor insurance business in respect of the occupants in a private car and pillion rider on a two wheeler under the comprehensive/package policies which was communicated to the court on the same day i.e. November 26, 2009 and the court was pleased to pass the order (dt. 26.11.2009) received from the Court Master, Delhi High Court, is enclosed for your ready reference and adherence. In terms of the said order and the admitted liability of all the general insurance companies doing motor insurance business in respect of the occupants in a private car and pillion rider on a two-wheeler under the comprehensive/package policies, you are advised to confirm to the Authority, strict compliance of the circular dated 16th November, 2009 and orders dt. 26.11.2009 of the High Court. 26.11.2009 of the High Court. Such compliance on your part would also involve: (i) withdrawing the plea against such a contest wherever taken in the cases pending before the MACT, and issue appropriate instructions to their respective lawyers and the operating officers within 7 days; (ii) with respect to all appeals pending before the High Courts on this point, issuing instructions within 7 days to the respective operating officers and the counsel to withdraw the contest on this ground which would require identification of the number of appeals pending before the High Courts (whether filed by the claimants or the insurers) on this issue within a period of 2 weeks and the contest on this ground being withdrawn within a period of four weeks thereafter; (iii) With respect to the appeals pending before the Hon'ble Apex Court, informing, within a period of 7 days, their respective advocates on record about the IRDA Circulars, for appropriate advice and action. Your attention is also drawn to the discussions in the CEOs meeting on 26.11.2009, when it was reiterated that insurers must take immediate steps to collect statistics about accident claims on the above subject through a central point of reference decided by them as the same has to be communicated in due course to the Honourable High Court. You are therefore advised to take up the exercise of collecting and collating the information within a period of two months to ensure necessary & effective compliance of the order of the Court. The information may be centralized with the Secretariat of the General Insurance Council and also furnished to us. IRDA requires a written confirmation from you' on the action taken by you in this regard. This has the approval of the Competent Authority. Sd/- (Prabodh Chander) Executive Director" (emphasis added) 24. It is extremely important to note here that till 31st December, 2006 the Tariff Advisory Committee and, thereafter, from 1st January, 2007, IRDA functioned as the statutory regulatory authorities and they are entitled to fix the tariff as well as the terms and conditions of the policies by all insurance companies. The High Court had issued notice to the Tariff Advisory Committee and the IRDA to explain the factual position as regards the liability of the insurance companies in respect of an occupant in a private car under the "comprehensive/package policy". The High Court had issued notice to the Tariff Advisory Committee and the IRDA to explain the factual position as regards the liability of the insurance companies in respect of an occupant in a private car under the "comprehensive/package policy". Before the High Court, the Competent Authority of IRDA had stated that on 2nd June, 1986, the Tariff Advisory Committee had issued instructions to all the insurance companies to cover the pillion rider of a scooter/motorcycle under the "comprehensive policy" and the said position continues to be in vogue till date. It had also admitted that the "comprehensive policy" is presently called a "package policy". It is the admitted position, as the decision would show, the earlier circulars dated 18th March, 1978 and 2nd June, 1986 continue to be valid and effective and all insurance companies are bound to pay the compensation in respect of the liability towards an occupant in a car under the "comprehensive/package policy" irrespective of the terms and conditions contained in the policy. The competent authority of the IRDA was also examined before the High Court who stated that the circulars dated 18th March, 1978 and 2nd June, 1986 of the Tariff Advisory Committee were incorporated in the Indian Motor Tariff effective from 1st July, 2002 and they continue to be operative and binding on the insurance companies. Because of the aforesaid factual position, the circulars dated 16th November 2009 and 3rd December, 2009, that have been reproduced hereinabove, were issued. 25. It is also worthy to note that the High Court, after referring to individual circulars issued by various insurance companies, eventually stated thus: (Yashpal Luthra case, 2011 ACJ 1415 (Del), ACJ p. 1424, para 27):- "27. 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." 26. 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." 26. 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. 27. In view of the aforesaid legal position, the question that emerges for consideration is whether in the case at hand, the policy is an "Act Policy" or "Comprehensive/Package Policy". There has been no discussion either by the tribunal or the High Court in this regard. True it is, before us, Annexure P-l has been filed which is a policy issued by the insurer. It only mentions the policy to be a "comprehensive policy" but we are inclined to think that there has to be a scanning of the terms of the entire policy to arrive at the conclusion whether it is really a "package policy" to cover the liability of an occupant in a car. 28. It only mentions the policy to be a "comprehensive policy" but we are inclined to think that there has to be a scanning of the terms of the entire policy to arrive at the conclusion whether it is really a "package policy" to cover the liability of an occupant in a car. 28. In view of the aforesaid analysis, we think it apposite to set aside the finding of the High Court and the tribunal as regards the liability of the insurer and remit the matter to the tribunal to scrutinize the policy in a proper perspective and, if necessary, by taking additional evidence and if the conclusion is arrived at that the policy in question is a "Comprehensive/Package Policy", the liability would be fastened on the insurer. As far as other findings recorded by the tribunal and affirmed by the High Court are concerned, they remain undisturbed." 13. Coming to the insurance policy (Ext. A), it is found mentioned therein that the vehicle was insured as a "Private Car Package Policy". The DW-1 has stated in his cross examination that: "The certificate of insurance does not contain the limited liability clause contained in the policy, Ext. 'A'. Limited of liability clause is that the certificate of the insurance contains a clause showing liability up to 7 lac 50 thousand. It is a fact that the certificate of insurance contains various terms and condition except personal accident to unnamed passengers up to 1 lac per person liability". 14. From the said evidence as well as the excerpts from the judgment of the case of Balakrishnan (supra), there is no doubt that the personal accident coverage would be in addition to the initial liability covering against case made by the passengers/occupants of a private car. The liability to the extent of Rs. 1,00,000/- is held to be personal accident liability and the same is in addition to the comprehensive package for the passengers/occupants of the vehicle. This view is supplemented by the circulars issued by IRDA i.e. Insurance Regulatory and Development Authority (i.e. IRDA), which is quoted by the Hon'ble Supreme Court in the case of Balakrishnan (supra). 15. In view of the discussions above, the point of determination No. 1 is decided in negative by holding that the liability arising out of the death of the passenger could not be limited to Rs. 15. In view of the discussions above, the point of determination No. 1 is decided in negative by holding that the liability arising out of the death of the passenger could not be limited to Rs. 1,00,000/- in respect of the offending vehicle which was insured under a comprehensive/package policy. Rather, the liability will be to the extent of such award as may be finally passed in the case. 16. The point of determination Nos. 2 and 3 are taken up together. In the claim petition as well as in the Evidence-on-Affidavit filed by appellant/claimant No. 1 as CW-1, he has mentioned his name as Sri Kaustav Gogoi. However, in his cross-examination, he had stated that he was a doctor by profession. As per the claim petition as well in his evidence on-affidavit sworn on 20.09.2007, the appellant No. 1 was 32 years old. Similarly, in the claim petition, the age of appellant No. 2 is mentioned as 28 years. Therefore, on 10.10.05, when the accident took place, none of the appellants were minors. But, the C.W. 1 in his cross-examination has stated: "It is not a fact that myself and another son of my father were major at the time of the accident and not dependent on my father." In their evidence-on-affidavit, both the appellants have not made any positive statement that there were dependents on the income of their father. Hence, this Court has no materials to hold that the appellant were dependents on the income of their father. 17. As per the accident information report (Ext. 1), the accident was recorded under Raha P.S. vide G.D.E. No. 238 dated 10.10.2005. On investigation, it was found that the case was accidental one. There is no allegation attributing rash and negligent driving on the driver, namely, Indrajeet Gogoi, who was related to the deceased and was admittedly not the paid driver at the time of the accident. The CW-1 had admitted in his cross examination that no police case was registered against the driver in connection with the said accident. None of the three witnesses were examined by the appellants, including themselves as CW-1 and CW-2 or a co-passenger (CW-3) had made any allegation about rash and negligent driving of the offending vehicle. The CW-1 had admitted in his cross examination that no police case was registered against the driver in connection with the said accident. None of the three witnesses were examined by the appellants, including themselves as CW-1 and CW-2 or a co-passenger (CW-3) had made any allegation about rash and negligent driving of the offending vehicle. In the opinion of this Court, the protection provided under Section 163-A of the MV Act is to the victims whose income slab is up to Rs. 40,000/- and that remedy is not available to the victims whose income slab is more than Rs. 40,000/- per annum. If the MAC Tribunal comes to the conclusion that the income slab of the victim is more than Rs. 40,000/-, the remedy under Section 163-A of the MV Act cannot be pressed into service and in such a case, under Sub-Section 2 of Section 163A of the MV Act, the claimant is not required to plead or establish the accident had occurred due to any wrong full act or negligence or default of the driver of the vehicle or of any other person. However, it is well settled that in a claim under Section 166 of the MV Act, the claimants are required to prove the element of rash and negligent driving of the offending vehicle, which is sine qua non for determining compensation in a claim petition under Section 166 of the MV Act. If a claim is presented under Section 166 of the MV Act, the insurer is permitted to raise all defences available to them. 18. Moreover, in the present case in hand, the wife of the deceased, who is the mother of the appellants, is the registered owner of the offending vehicle. Therefore, when the wife is alive, there is no way that only the appellants could have jointly inherited the estate of their deceased father. Hence, the owner of the vehicle, being Class-I heir under the Hindu Succession Act, cannot be payer as well as the receiver of compensation, because in fact the onus of paying compensation is the liability of the owner of the offending, but as the vehicle was duly insured, such liability was indemnified by the insurer as their contractual liability. Hence, the owner of the vehicle, being Class-I heir under the Hindu Succession Act, cannot be payer as well as the receiver of compensation, because in fact the onus of paying compensation is the liability of the owner of the offending, but as the vehicle was duly insured, such liability was indemnified by the insurer as their contractual liability. Hence, in view of the discussions above, in the considered opinion of this Court, the appellants would be legally entitled to a sum equivalent to the no fault liability. Thus, if the respondent No. 3 has discharged their liability against the head of "no fault liability", the respondent need not make such payment again. This compensation would be in addition to the PA insurance coverage of Rs. 1,00,000/- awarded by the learned Tribunal. 19. Having seen from the impugned judgment that the appellants had produced vouchers, bills etc., showing an expenditure of Rs. 11,02,765.56 towards medical treatment of the deceased. The award is liable to be enhanced by the said amount of Rs. 11,02,765.56, rounded up to the nearest rupee, i.e. Rs. 11,02,766/-. 20. As per the claim petition and as per the evidence of CW-1, he has also proved the expenses on account of a travel for treating the deceased for better treatment in New Delhi and for carrying the dead body. The expenditure towards the same are as follows: i. Flight Charges from Guwahati to New Delhi on 11.10.2005:- (a) for 4 (four) seats for the injured/deceased: Rs. 47,737/- (b) for 2 (two) attendants:- (i) Dr. Kaustav Gogoi: Rs. 12,100/- (ii) Dr. Bharati Gogoi: Rs. 12,100/- ii. Ambulance Charge (from Delhi Airport to Sir Ganga Ram Hospital) on 11.10.05: Rs. 400/- iii. Flight Charges from New Delhi to Guwahati on 07.06.2006 for:- a. 4 (four) seats for the injured/deceased Rs. 52,805/- b. 2 (two) attendants:- i. Dr. Kaustav Gogoi: Rs. 5,925/- ii. Dr. Bharati Gogoi: Rs. 5,925/- Less discount Rs. 2,137/- iv. Dead body carrying Van from GMCH to Jorhat Rs. 4,200/- Total of (i) to (iv): Rs. 1,39,055/- (Rupees One Lakh thirty nine thousand fifty five only). The compensation is liable to be enhanced by a sum of Rs. 1,39,055/- towards the said expenses, for which vouchers are available in evidence tendered by CW-1. 21. 5,925/- Less discount Rs. 2,137/- iv. Dead body carrying Van from GMCH to Jorhat Rs. 4,200/- Total of (i) to (iv): Rs. 1,39,055/- (Rupees One Lakh thirty nine thousand fifty five only). The compensation is liable to be enhanced by a sum of Rs. 1,39,055/- towards the said expenses, for which vouchers are available in evidence tendered by CW-1. 21. Coming to the issue of res ipsa loquitur, raised by the learned Counsel for the appellant, this Court is of the opinion that unless the foundation is laid to show that negligence of driver can be inferred, the principles of res ipsa loquitur cannot be applied in the present case in hand because of the fact that the driver of the offending vehicle was the close relative of the deceased and the appellants-claimants. Moreover, out of the three witnesses examined by the appellant-claimants, CW-2 (Kaushik Gogoi-appellant No. 2) and CW-3 (Dilip Gogoi), were co-passengers in the same vehicle. Both witnesses made no whisper about any rash or negligent driving by the driver, Indrajeet Gogoi, who is also one of their close relative. Moreover, no ejahar was lodged against the rash and negligent driving. When there was a direct evidence by CW-2 and CW-3, who were both co-passengers, making no allegations against the driver of any rash and negligent driving, there is no scope for this Court for inferring such negligence by applying the principles of res ipsa loquitur in a routine manner, which would not only frustrate but also enlarge the scope of filing claim petition under Section 166 of the MV Act, leading to allowing of all claims not by proving rash and negligent driving but by inferring negligence by applying the said principles of res ipsa loquitur. The principle of res ipsa loquitur is only a rule of evidence to determine the onus of proof in actions relating to negligence. It is well settled that the said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence, the accident would not have occurred. If any authority is needed on the point, the case of Mohammed Aynuddin Vs. State of A.P., (2000) 7 SCC 72 . Similarly, the principles which can be culled out from the case of (i) Pushpabai Purushottam Udeshi Vs. Ranjit Ginning and Pressing Co. If any authority is needed on the point, the case of Mohammed Aynuddin Vs. State of A.P., (2000) 7 SCC 72 . Similarly, the principles which can be culled out from the case of (i) Pushpabai Purushottam Udeshi Vs. Ranjit Ginning and Pressing Co. (P) Ltd., AIR 1977 SC 1735 , and (ii) Cholan Roadways Ltd. Vs. G. Thirugnana--sambandam, (2005) 3 SCC 241 , is that the normal rule is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of accident is not known to him but it is solely within the knowledge of the defendant who caused it, as such, the plaintiff cannot prove how the accident happened to establish negligence on part of the defendant and it is to overcome such hardship that the exception to the rule is carved out by applying the principles of res ipsa loquitur. Hence, in view of the discussions above, in the considered opinion of this Court, this is not a fit case for applying the principles of res ipsa loquitur and in the absence of allegation of rash and negligent driving by the respondent No. 2. 22. That in terms of the decision rendered in the case of Pranay Sethi (supra), the appellants are entitled to compensation of Rs. 15,000/- towards loss of estate and a further sum of Rs. 15,000/- on account of funeral expenses. The compensation is liable to be enhanced by the said sum of Rs. 30,000/-. 23. The further conclusions of the above discussion are as follows:- a. The appellants i.e. the claimants are not found to be dependents on the income of the deceased. b. There is no averment of rash and negligent driving against the driver of the offending vehicle. c. The principle of res ipsa loquitur is not found to apply in this case in hand. d. Therefore, the appellants are not found to be entitled to award of any compensation on other heads of claim. 24. Accordingly, in view of the discussions above, the Points of Determination No. 1, 2 and 3 are summarized and answered as follows:- a. The Point of Determination No. 1 is answered by holding that the liability arising out of the death of the passenger could not be limited to Rs. 1,00,000/- in respect of the offending vehicle which was insured under a comprehensive/package policy. 1,00,000/- in respect of the offending vehicle which was insured under a comprehensive/package policy. b. The Point of Determination No. 2 is answered in the affirmative and in favour of the appellant by holding that the appellants are entitled to enhancement of the award of compensation. c. The Point of Determination No. 3 is answered by holding that the appellants are entitled to enhancement of the award of compensation in the following manner:- i. On account of medical expenses Rs. 11,02,766/-. ii. The appellants are entitled for the amount of no fault liability'. iii. On account of expenses for travelling and for transportation of dead body-Rs. 1,39,055/- iv. On account of loss of estate and funeral expenses-Rs. 30,000/- v. Award stands enhanced by Rs. 12,71,821/-, excluding no fault liability, which is in addition to the enhanced award. vi. Enhanced award would entail interest at the rate of 9% p.a. as per the award w.e.f. 05.12.2006. 25. The appeal stands allowed by enhancing the award by a further sum of Rs. 12,71,821/-, which is in addition to award under 'no fault liability', as well as the sum of Rs. 1,00,000/- already awarded as PA benefit. The said enhanced award along with interest @ 9% from 05.12.2006 would be deposited by the respondent No. 3, i.e. United India Insurance Co. Ltd., within a period of 2 months, failing which the award would be liable to be enforced in according to law. 26. The parties shall bear their own cost. Let the LCR be returned.