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2021 DIGILAW 1885 (RAJ)

Chhailu Singh v. Abhay Kanwar

2021-09-29

VINIT KUMAR MATHUR

body2021
JUDGMENT 1. The present appeal has been filed by the owner of the vehicle aggrieved against the judgment and award dated 14.05.2009 passed by the learned Judge, Motor Accident Claims Tribunal, Bikaner in Claim case No. 160/2004 whereby, the claim-petition of the claimants was allowed and while exonerating the Insurance company the liability to pay the compensation was fastened on the present appellant. 2. Learned Tribunal after framing the issues, evaluating the evidence on record, and hearing learned counsel for the parties decided the claim petition of the claimants. Heard. 3. Learned counsel for the appellant submits that the finding recorded by the Tribunal on Issue No.3, is erroneous as it was held that the deceased was a pillion rider of the motor-cycle bearing registration No. RJ-07-5M-4589, which was being driven by the owner of the motor-cycle Chhailu Singh. He further submits that the vehicle was insured under the comprehensive/package policy and even as per the terms and conditions of the policy, the risk of the pillion rider was covered. He, therefore, submits that treating the pillion rider to be a third party, the liability to pay compensation cannot be fastened on the appellant. He submits that as per the terms and conditions of the policy, the liability to pay the compensation was squarely fastened on the Insurance Company and in these circumstances, the finding recorded by the Tribunal on Issue No.3 is incorrect. 4. In support of his contentions, learned counsel for the appellant has relied upon the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Ltd. vs. Balakrishnan and Anr. Reported in (2013) 1 SCC 731 . 5. Per contra, learned counsel for the respondent - Insurance Company submits that the finding of the Tribunal does not suffer from any infirmity as admittedly, the deceased was a pillion rider and in view of the judgment of the Hon'ble Supreme Court in the case of Oriental Insurance Company Ltd. Vs. Sudhakaran K.V. and Ors. reported in MACD 2008 (SC) 190, the pillion rider is considered to be a third party and the liability to pay the compensation in case of the injury/death suffered by the pillion rider is not covered by the insurance policy. 6. I have considered the submissions made at the Bar and have gone through the judgment and award dated 14.05.2009 as well as other relevant record of the case. 7. 6. I have considered the submissions made at the Bar and have gone through the judgment and award dated 14.05.2009 as well as other relevant record of the case. 7. The terms and conditions of the policy show that the Insurance Company had undertaken to cover the death or bodily injury of any person including the occupants carried in the insured vehicle i.e. motor-cycle in the present case and, therefore, even as per the terms and conditions of the Insurance Policy, the risk of the pillion rider was covered. It is, therefore, held that the finding of Tribunal on Issue No.3 treating the pillion rider to be a third party and his risk having been not covered under the insurance cover by the insurance policy is erroneous. The Hon'ble Supreme Court in the case of National Insurance Company Ltd. vs. Balakrishnan and Anr. (supra) clearly held that if the vehicle is insured under the comprehensive/package policy, the risk of the occupant of the vehicle in a four-wheeler and the pillion rider on a two-wheeler will be covered and the Insurance Company will be under an obligation to satisfy the compensation. The Hon'ble Supreme Court in the case of National Insurance Company Ltd. vs. Balakrishnan and Anr. (supra) held as under:- "24. It is extremely important to note here that till 31-12-2006 the Tariff Advisory Committee and, thereafter, from 1-1-2007 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 issued by all insurance companies. The High Court had issued notice to the Tariff Advisory Committee and 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 2-6-1986, 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 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 18-3-1978 and 2-6-1986 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 IRDA was also examined before the High Court who stated that the Circulars dated 18-3-1978 and 2-6-1986 of the Tariff Advisory Committee were incorporated in the Indian Motor Tariff effective from 1-7-2002 and they continue to be operative and binding on the insurance companies. Because of the aforesaid factual position, the Circulars dated 16-11-2009 and 3-12-2009, 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 the various insurance companies, eventually stated thus: (Yashpal Luthra case, 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 the Motor Accidents 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 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 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. 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 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 Bhagyalakshmi 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 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." 8. In view of the discussions made above, the present appeal is allowed and the finding recorded by the Tribunal exonerating the Insurance Company from payment of compensation in the present case is quashed and set aside. The respondent - Insurance Company is directed to pay the compensation as ordered by the Tribunal vide its judgment and award dated 14.05.2009 to the claimants in the present case.