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2022 DIGILAW 126 (KAR)

Oriental Insurance Co. Ltd. v. Ganesh Devadiga S/o Shri Sheshappa Devadiga

2022-02-02

P.KRISHNA BHAT

body2022
JUDGMENT : P. KRISHNA BHAT, J. 1. This appeal is at the instance of insurance company calling in question the correctness of the judgment and award dated 26.07.2010 passed in MVC No. 1423/2004 by the II Addl. District Judge and Member, MACT-III, Dakshina Kannada, Mangalore, to the extent of fastening the liability to pay the compensation on it. 2. A claim petition seeking compensation was filed on the allegation that on 31.07.2004 at about 8.45 p.m. when claimant was proceeding in Bajaj Chetak Scooter No. CTA 8277 as a pillion rider and the scooter reached near Petrol pump at Padupanambur Village, on account of rash and negligent riding of the scooter by its rider, scooter fell on the road and claimant suffered fracture of his left leg. 3. Before the learned Claims Tribunal owner of the offending scooter remained absent and he was placed ex-parte. The appellant-insurance company contested the proceedings by filing detailed written statement denying the material averments made in the claim petition. 4. Subsequently, one Ashok S/o Late Sundara Poojary was brought in as respondent No. 3 and even though he entered appearance through a learned counsel, did not choose to file any written statement. 5. During the trial claimant examined himself as PW-1 and Exs.P-1 to P-9 were marked. Respondents did not examine any witness and policy of insurance was marked as Ex.R-1. 6. Learned counsel for the appellant-insurance company candidly submits that he does not dispute occurrence of accident and injuries suffered by the claimant as a pillion rider and his only grievance is that even though offending scooter was covered with an Act policy and no additional premium was paid to cover the risk of pillion rider, learned Tribunal merely on account of the fact that there was policy coverage for the scooter, has proceeded to fasten the liability on the insurance company. Therefore, he submits that in view of the series of decisions of Hon’ble Supreme Court, more importantly the one in Oriental Insurance Co. Ltd. vs. Sudhakaran K.V. 2008 ACJ 2045 (SC) and National Insurance Co. Ltd. vs. Balakrishnan and Another, (2013) 1 SCC 731 , the direction in the award to the extent of fastening liability on the insurance company is required to be set aside and the appeal is entitled to be allowed to the said extent. 7. Learned counsel appearing for respondent No. 3 has remained absent. 8. Ltd. vs. Balakrishnan and Another, (2013) 1 SCC 731 , the direction in the award to the extent of fastening liability on the insurance company is required to be set aside and the appeal is entitled to be allowed to the said extent. 7. Learned counsel appearing for respondent No. 3 has remained absent. 8. I have given anxious consideration to the submissions made by the learned counsel for the appellant and I have carefully perused the records. 9. Ex.R-1 is the policy of insurance issued by the appellant-insurance company in respect of the offending scooter bearing Registration No. CTA 8277. Case of the claimant is that on 31.07.2004 while he was a pillion rider of the scooter, on account of rash and negligent riding of the scooter he fell on the road and suffered certain injuries. 10. Perusal of Ex.R-1 shows that no additional premium was paid by the owner of the scooter to cover the risk of pillion rider. Hon’ble Supreme Court in the case of Oriental Insurance Co. Ltd. vs. Sudhakaran K.V. 2008 ACJ 2045 (SC), has observed as follows: “19. The law which emerges from the said decisions is: (i) the liability of the insurance company in a case this nature is not extended to a pillion rider of the motor vehicle unless the requisite amount of premium is paid for covering his/her risk; (ii) the legal obligation arises under section 147 of the Act cannot be extended to an injury or death of the owner of vehicle or the pillion rider and (iii) the pillion rider on a two-wheeler was not to be treated as a third party when the accident has taken place owing to rash and negligent riding of the scooter and not on the part of the driver of another vehicle.” 11. Similarly Hon’ble Supreme Court in the case of National Insurance Co. Ltd. vs. Balakrishnan and Another, (2013) 1 SCC 731 has observed as follows: “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. Similarly Hon’ble Supreme Court in the case of National Insurance Co. Ltd. vs. Balakrishnan and Another, (2013) 1 SCC 731 has observed as follows: “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.” 12. Above decisions of Hon’ble Supreme Court are explicit to the effect that unless additional premium is paid covering the risk of a pillion rider/occupant of a car an Act policy issued will not make the insurance company liable to pay the compensation awarded for the personal injury or death of a pillion rider/occupant of a car arising out of accident involving the insured two wheeler/car. 13. Learned Member of the MACT without taking note of the above position of law has merely observed that respondent No. 2 has admitted that offending scooter was insured with it at the time of accident as per Ex.R-1 and proceeded to fasten liability on the insurance company overlooking the fact that there was no additional premium paid to cover the risk of a pillion rider. In that view of the matter, appellant-insurance company should not have been held liable to reimburse the compensation. In that view of the matter, appellant-insurance company should not have been held liable to reimburse the compensation. Accordingly, impugned award to the extent it directs the appellant-insurance company to pay the compensation is concerned, is liable to be set aside. Hence, the following: JUDGMENT: (1) Appeal is allowed. (2) Direction in the impugned judgment and award dated 26.07.2010 passed in MVC No. 1423/2004 by the II Addl. District Judge and Member, MACT-III, Dakshina Kannada, Mangalore, to the extent of fastening liability on appellant-insurance company to pay the compensation is concerned, is set aside. (3) Amount in deposit, if any, shall be refunded to the appellant-insurance company and records shall be transmitted to the learned MACT forthwith.