Telangana High Court
The Future General India Insurance Co. ... vs S. Narender Reddy on 5 November, 2024
THE HON'BLE SRI JUSTICE SUJOY PAUL
AND
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
M.A.C.M.A.No.524 of 2022
and
Cross Objections No.21 of 2023
COMMON JUDGMENT:
(per Hon'ble Sri Justice Namavarapu Rajeshwar Rao) The present M.A.C.M.A. and Cross Objections are being disposed of by this common judgment since M.A.C.M.A. filed by the Insurance Company and Cross Objections filed by the petitioner/claimant are directed against the very same order and decree dated 18.05.2022 passed in M.V.O.P.No.2621 of 2015 on the file of the IX Additional Chief Judge, City Civil Court, Hyderabad (for short 'the Tribunal').
2. Heard Sri Rama Krishna Reddy, learned counsel for the appellant-Insurance Company, Sri Jagathpal Reddy, learned counsel for respondent No.1 and Sri R.Anurag, learned counsel for respondent No.2.
3. For the sake of convenience, the parties hereinafter will be referred to as they are arrayed before the Tribunal.
2 SP,J & RRN,J M.A.C.M.A.No.524 of 2022 & Cross Objections No.21 of 2023
4. Brief facts of the case are as follows:-
(i) On 29-3-2015 at about 10.00 p.m., the petitioner and his family members were proceeding towards Hyderabad from Bodhan in the Hyundai Santro EGO GLS Car bearing No.AP-09-CH-6920, and while on the way to Hyderabad, when they reached the outskirts of Station Masaipet Village, the driver of the Car drove at high speed, rashly and negligently and while overtaking DCM van bearing No.HR-38Q 9300, which was proceeding in front of the Car, hit the DCM from the back side.
Due to the said accident, all the inmates of the car, including the petitioner, who was on the left side of the driver seat, sustained multiple fractures and grievous head injuries. As a result, both the vehicles were damaged. The accident occurred due to the rash and negligent driving of the driver of the Hyundai Santro ECO GLS Car bearing No.AP 09-CH 6920, as well as DCM Van bearing No.HR 38Q 9300.
(ii) The petitioner sustained injuries of 1) Severe Traumatic Brain injury 2) Left Fronto-Temporo-Parietal SDH with mass effect on ½ ventricle, 3) Left occipital contusion 4) Right Zygoma fracture, 5) Right maxilla fracture, and 6) Right side frontal bone fracture and other injuries all over the body.
3 SP,J & RRN,J M.A.C.M.A.No.524 of 2022 & Cross Objections No.21 of 2023 Immediately after the accident, all the injured were shifted to Balaji Hospital, Kompally, in 108 ambulance. After immediate necessary treatment, the petitioner was shifted to Yashoda Hospital, Secunderabad, and he was admitted as an inpatient from 30-03-2015 to 06-05-2015. After admission, he was sent for all medical examinations, including a CT scan of the brain, and the examination reports revealed that the petitioner suffered multiple fractures. Immediately, a team of doctors gave the treatment to the petitioner, where the CT brain plain revealed left front temporoparietal SDH with left occipital contusion with mass effect on left temporal born and obliterated quadrigerminal cistern. CT 3D face reconstruction revealed right zygoma fracture, right maxilla fracture, right supraorbital ridge fracture with right frontal bone fracture. A plastic surgeon's consultation was taken for multiple facial bone fracture and advised for fixation. Chest and abdominal internal organ injuries were ruled out by general surgeon. An orthopedician ruled out long bone injuries. His attendants were explained about the critical condition of the petitioner and advised for immediate surgery i.e., decompressive cranietomy. After pre operative work up and pre anesthetic checkup, he was 4 SP,J & RRN,J M.A.C.M.A.No.524 of 2022 & Cross Objections No.21 of 2023 taken up for emergency left fronto temporoparietal decompressive craniectomy+ left anterior temporal lobectomy along with ORIF right maxilla and right zygoma with debridement + soft tissue repair under general anesthesia on 30-03-2015. Intra and immediate post operative periods were uneventful. Repeat CT brain plain revealed cistern clearly visible, midline shift decrease and preoperative contusion. As the condition of the petitioner was neurologically the same, with no significant improvement, the petitioner needed ventilator support.
(iii) The petitioner was about 33 years old and healthy at the time of the accident. Before the accident, the petitioner worked as a Senior Software Engineer in Hash Technoligies Private Limited, and earning Rs.13,00,000/- per annum. The petitioner is a permanent income tax payee. Due to the accident, the petitioner was totally bed ridden and unable to attend his duties. Therefore, the petitioner filed the claim petition under Section 166 of Motor Vehicles Act, 1988 (for short 'the Act') and Rule 455 of M.V.Rules read with Section 140 of the Act seeking compensation of Rs.4,00,00,000/-.
5. Respondent Nos.1 and 3 remained ex-parte.
5 SP,J & RRN,J M.A.C.M.A.No.524 of 2022 & Cross Objections No.21 of 2023
6. Respondent No.2 filed a counter affidavit before the Tribunal denying the averments made in the claim petition and stated that the petition is not valid in the eye of the law, since Smt. D. Sindhu Rani, wife of the petitioner, is not competent to sign the application on behalf of the petitioner. The owner and insurer of DCM Van bearing No.HR-38Q-9300 are proper and necessary parties for the complete adjudication of the claim, otherwise the petition is liable to be dismissed for non-joinder of necessary parties. The petitioner clearly admitted in the petition that there was negligence on the part of the driver of the DCM Van bearing No.HR 38Q 9300, as such, the owner and insurer of the said vehicle are to be impleaded. The petitioner did not implead the owner and insurer of the DCM Van bearing No. HR 38 Q 9300 intentionally, even though he admitted the negligence of the driver of the said vehicle.
7. It is further stated that the allegation of the petitioner that he cannot identify his own family members, and there is no eye contact and sensation to the limbs is not correct, since the police recorded the statement of the petitioner. The examination of the petitioner by the police itself clearly 6 SP,J & RRN,J M.A.C.M.A.No.524 of 2022 & Cross Objections No.21 of 2023 establishes that the petitioner is competent to sign and he is not in agitate state. The 2nd respondent has issued policy bearing No.2015-W0009242-FPV covering the risk of the accident subject to Section 64 VB of the Insurance Act, 1938, compliance and terms and conditions of the policy from 02.01.2015 to 01.01.2016 concerning Car bearing No.AP 09 CH 6920. As per Section 134(c) of the Act, it is the mandatory duty of the insured/first respondent to furnish the particulars of policy, date, time and place of accident, details of driving license and the name of the driver and particulars of the driving licence, but the insured/first respondent has not complied with the statutory demand. Hence, the 2nd respondent is not liable to pay any compensation and the case is liable to be dismissed against the respondent for non- compliance of the statutory demand. The driver of the Car was not holding a valid and effective driving licence at the time of the accident. Therefore, the 2nd respondent is not liable to compensate the petitioner.
8. Based on the above pleadings, the trial Court framed the following issues :-
7 SP,J & RRN,J M.A.C.M.A.No.524 of 2022 & Cross Objections No.21 of 2023
1. Whether the accident occurred on 29.03.2015 was due to rash and negligent driving of Car bearing No.AP-09-CH-6920 by its driver ?
2. Whether the petitioner is entitled for compensation, if so against whom ? To what quantum ?
3. To what relief ?
9. On behalf of the petitioner, examined P.Ws.1 to 16 and Exs.A1 to A53 were marked. On behalf of the 2nd respondent- Insurance Company, none examined, but marked Ex.B-1 Copy of the Insurance Policy.
10. After considering the oral and documentary evidence available on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the offending vehicle's driver and accordingly awarded an amount of Rs.4,17,05,962/- without any interest. Challenging the same, M.A.C.M.A.No.524 of 2022 is filed by the Insurance Company and Cross Objections No.21 of 2023 is filed by the petitioner.
11. Learned counsel for the 2nd respondent-Insurance Company contended that the trial Court grossly erred in fixing the liability on the 2nd respondent. It ought to have seen that the present claim petition itself is not maintainable 8 SP,J & RRN,J M.A.C.M.A.No.524 of 2022 & Cross Objections No.21 of 2023 under the provisions of the Act for the reason that the claim petitioner/injured is none other than the son of the owner/insured of the crime vehicle. He does not fall under the category of "third party".
12. Learned counsel for the 2nd respondent-Insurance Company further contended that the the trial Court ought to have seen that the petitioner/injured was travelling in the capacity of son of the owner of the car and he does not come under the meaning of third party as per the M.V.Act. The judgment of the Hon'ble Court in New India Assurance Co Ltd, Vs. Sadanand Mukhi and others (Civil Appeal No.7402 OF 2008) squarely covers the subject matter of the present case. Wherein the Apex Court held that the relationship between the owner and deceased i.e., father and son, is not a third party relationship as contemplated under section 165 of the Act. In view of the said judgment, since the petitioner/injured is none other than the son of the owner of the crime vehicle, the petitioner is not entitled to any compensation from the 2nd respondent.
13. Learned counsel for the 2nd respondent-Insurance Company, further contended that the trial Court ought to 9 SP,J & RRN,J M.A.C.M.A.No.524 of 2022 & Cross Objections No.21 of 2023 have seen that Chapter XI of the Act relates to the Insurance of Motor Vehicles against third party risks and Section 149 of the Act clearly mentions about the duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks and it does not include about the claims made by the owner/Insured or his legal heirs.
14. Learned counsel for the 2nd respondent-Insurance Company further contended that the trial Court while calculating the compensation erroneously did not deduct the TDS and failed to note that the salary of the petitioner was only Rs.8,50,008/- per annum, out of which, the Professional Tax and Income Tax shall be deducted, but the trial Court in the absence of any salary certificate erroneously relied on Ex.A53- Form No.16 and took the salary at Rs.89,780/- Per month and calculated the compensation on that amount, which is highly excessive and contrary to the settled principles of law.
15. Learned counsel for the 2nd respondent-Insurance Company further contended that the trial Court failed to note that as per the Income Tax slab for the A.Y 2015-16 i.e., for Financial Year 2014-2015 upto Rs.2,50,000, the Income Tax is Nil and from Rs.2,50,001 to Rs.5,00,000 it is 20%. As per the 10 SP,J & RRN,J M.A.C.M.A.No.524 of 2022 & Cross Objections No.21 of 2023 said slab, after deducting the TDS and Professional tax, the loss of dependency shall not be more than Rs.1,68,58,416/-. But the learned judge, in the absence of any disability certificate by the medical board or any authority only relying on the self- interested witnesses, treated the petitioner's disability at 100% and erroneously arrived at Rs.2,41,32,864/- which is highly excessive and contrary to the settled principles of the Apex Court. Under all heads, the trial Court erroneously granted an amount of Rs.4,17,05,962/-, which is excessive. Accordingly, the respondent prayed to set aside the order and decree passed by the trial Court and allow the present appeal.
16. Sri R.Anurag, learned counsel for the 2nd respondent relied upon the judgment of the Apex Court in SANKARANARAYANAN POTTI Vs. K.SREEDEVI AND OTHERS 1 and the judgment of the High Court of Andhra Pradesh at Hyderabad in UNITED INDIA INSURANCE COMPANY LIMITED Vs. GANGISETTI NAGA LAKSHMI 2 with regard to the comprehensive policy and its effects and who are 1 (1998) 3 Supreme Court Cases 751 2 MACMA 2411 OF 2008 AND CROSS OBJECTIONS (SR) 33730 OF 2007 DATED 05.03.2014 11 SP,J & RRN,J M.A.C.M.A.No.524 of 2022 & Cross Objections No.21 of 2023 eligible for compensation when the accident takes place and also with regard to the guidelines issued by I.R.D.A.
17. On the other hand, learned counsel appearing for the petitioner contended that the trial Court ought to have awarded interest @ 7.5% per annum and the trial Court failed to discuss with regard to non-awarding of interest. The trial Court failed to consider the income of the petitioner at Rs.1,49,743/- for the month of March 2015. The Tribunal erred in considering the petitioner's income at Rs.89,780/- per month. Therefore, it may modify the impugned order passed by the Tribunal and enhance the compensation accordingly.
18. Insofar as the 1st issue is concerned, the trial Court held as follows :-
"..... On the contrary, the respondents No.1 and 3 remained exparte and respondent No.2 filed counter that the driver of the DCM drove the vehicle in Zig Zag manner due to which the accident occurred. The insured and insurer of the DCM are proper and necessary parties to the proceeding to decide the case as per law. Without prejudice to either parties, mere filing of the charge sheet on the driver of the car in which the petitioner was travelling does not mean that the entire cause of the 12 SP,J & RRN,J M.A.C.M.A.No.524 of 2022 & Cross Objections No.21 of 2023 accident was due to the negligence of the driver of the car only. As per the averments of the police records, the cause of the accident was due to negligence of the driver of the DCM also. When two vehicles are involved in the accident and there was negligence on the part of the both drivers for the cause of the accident, the compensation should be imposed on the both vehicles. In order to rebut the case of the petitioner, no oral evidence adduced and marked Ex.B1 attested copy of insurance policy.
From the evidence present on record and on the back ground of rival contentions raised by both parties, it is to be seen whether there is any substance in the claim made by the petitioner or to the contra whether the stand taken by the respondent No.2 has been vindicated. On behalf of the petitioner, the mother of the petitioner was examined as PW1 as the petitioner was not in a position to give evidence and she elicited during cross examination that she is not eye witness to the accident. She cannot say due to the negligence, the accident occurred and DCM van dashed the car. She admitted that she had not filed documents to show that they incurred a sum of Rs.5,00,000/- towards transportation, Rs 20,00,000 towards physiotherapy, Rs.15,000/- per month towards private attendant charges, Rs.6000/- per month towards ward boy expenditure, Rs.3000/- per month towards nursing charges, Rs. 12,00,000/- towards damages to the clothes and mobile phone. She further admits that the medical bills are reimbursed by CM Relief Fund and insurance through employment."
............
13 SP,J & RRN,J M.A.C.M.A.No.524 of 2022 & Cross Objections No.21 of 2023 "...... When the contesting respondent had taken various pleas, the burden of proving some of them is on the opposite party. But as noticed, no evidence is forthcoming in support of his version except placing relevancy on Ex.B1 policy which in fact is in-force as on date of accident. Except mere and vague denials nothing could be elicited from oral testimony of PWs 1 to 16. Unless contrary is proved, the petitioner cannot be non-suited. As noticed, the accident occurred due to sole negligence of the driver of the car bearing No. AP 09 CH 6920, which hit the DCM vehicle bearing No.HR 38Q9300. So the decision relied on by the learned counsel for respondent No.2 MACMA No.3074/2007 and 2007 (6) ALD 261 with regard to rash and negligence is not applicable to the facts of the present case. So, the case of the petitioner was established positively with regard to issue No.1 and, thus answered in favour of the petitioner."
19. In our view, in issue No.1, the trial Court admitted that the crime car hit the DCM van and also mentioned the DCM vehicle number. Then, who prevented the petitioner to make the owner and insurer of the DCM Van as party respondents. With regard to the said aspect, there is no discussion by the trial Court while deciding the issue.
20. Coming to issue No.2, the trial Court fixed the monthly income of the petitioner at Rs.89,780/- as per Ex.A-53 and awarded a sum of Rs.2,41,32,864/- towards future prospects.
14 SP,J & RRN,J M.A.C.M.A.No.524 of 2022 & Cross Objections No.21 of 2023 The trial Court awarded a sum of Rs.20,10,715/- towards medical bills, Rs.7,75,900/- towards physiotherapy bill, Rs.75,000/- towards speech trophy, Rs.29,400/- towards house maid, Rs.4,67,200/- towards maid servant, Rs.6,700/- towards house rent, Rs.5,00,000/- towards extra nourishment, Rs.90,000/- towards transport bills, Rs.5,00,000/- towards pain and suffering, Rs.10,00,000/- towards loss of amenities in life and Rs.10,00,000/- towards marital life under the head of loss of future earning and disability. In total, it comes to Rs.64,54,915/-, but the trial Court wrongly calculated the total as Rs.64,94,318/- instead of Rs.64,54,915/-. Further, the trial Court granted an amount of Rs.25,000/- towards future medical expenses, Rs.10,00,000/- towards future physiotherapy, Rs.2,00,000/- towards future speech, Rs.2,00,000/- towards future housemaid, Rs.10,00,000/- towards future maidservant, Rs.10,00,000/- towards future extra nourishment and Rs.6,00,000/- towards future transport i.e., in total a sum of Rs.65,00,000/-. The trial Court also awarded an amount of Rs.45,78,780/- towards loss of earnings. The total would come to Rs.4,16,66,559/-, but the Tribunal made a wrong calculation and awarded a sum of 15 SP,J & RRN,J M.A.C.M.A.No.524 of 2022 & Cross Objections No.21 of 2023 Rs.4,17,05,962/-. While awarding the said compensation amount, the trial Court has not awarded any interest.
The findings of this Court are as follows :-
21. Before the Tribunal, in the counter filed by the Insurance Company, raised some preliminary objections i.e., the petition is not valid in the eye of law, since Smt. D. Sindhu Rani, wife of the petitioner, is not competent to sign the application on behalf of the petitioner. The owner and insurer of DCM Van bearing No.HR-38Q-9300 are proper and necessary parties for the complete adjudication of the claim.
Otherwise the petition is liable to be dismissed for non-joinder of necessary parties. The petitioner clearly admitted in the petition that there was negligence on the part of the driver of the DCM Van bearing No.HR-38Q-9300, as such, the owner and insurer of the said vehicle are to be impleaded. The petitioner did not implead the owner and insurer of the DCM Van bearing No.HR-38Q-9300 intentionally, even though he admitted the negligence of the vehicle's driver. The contention of the petitioner that he cannot identify his own family members and there is no eye contact and sensation to the limbs is not correct, since the police recorded the statement of 16 SP,J & RRN,J M.A.C.M.A.No.524 of 2022 & Cross Objections No.21 of 2023 the petitioner. The examination of the petitioner by the police clearly establishes that the petitioner is competent to sign and he is not in an agitated state. The other preliminary objections are not elaborately discussed in the order passed by the Tribunal and huge amounts were granted to the petitioner under various heads without any proper examination or any evidence and only based on the oral submissions made by the witnesses, granted the amounts. May be, some doctors state that some treatments are required for a lifetime, but there are no particulars and proof as to which type of treatments are life long required, and there is no examination to that effect. One of the doctors examined as PW.11 and in his cross-examination he said that injuries sustained by the patient are healed and he did not suffer any fix after 2017 and there is partial improvement. With regard to the disability certificate-Ex-30, PW.12-Doctor was examined and he said that petitioner cannot perform his daily activities as prior to the accident. In his cross- examination, he stated that the percentage of disability access in Ex.A-30 may be reduced after three years in reassessment.
17 SP,J & RRN,J M.A.C.M.A.No.524 of 2022 & Cross Objections No.21 of 2023
22. In the evidence of PWs.11 and 12, they have not clarified how much disability the petitioner has sustained whereas as per Ex.A-30-Disability Certificate, the petitioner sustained 73% disability and there is no 100% disability. Moreover, under the impugned order, there is no discussion with regard to the disability sustained by the petitioner and the trial Court also did not fix the disability basing on the Disability Certificate.
23. The main contention of the respondent Insurance Company is that the petitioner is none other than the son of the owner/insured of the crime vehicle, and therefore, he does not fall under the meaning of 'third party' as per the Act.
24. As per the Motor Vehicles Act, 1988, Section 145 deals with the definitions and under Clause (i) "third party"
includes the Government, the driver and any other co-worker on a transport vehicle.
25. Learned counsel for the 2nd respondent contended that the subject matter of the present case is squarely covered by the judgment of the Apex Court in NEW INDIA ASSURANCE COMPANY LIMITED Vs. SADANAND MUKHI (Civil Appeal 18 SP,J & RRN,J M.A.C.M.A.No.524 of 2022 & Cross Objections No.21 of 2023 No.7402 of 2008), wherein the Apex Court held that the relationship between the owner and the deceased i.e., father and son is not a third party relationship as contemplated under Section 165 of the Act as such, in view of the said judgment of the Apex Court, since the petitioner is none other than the son of the owner of the crime vehicle i.e., Car, the petitioner is not entitled for compensation from the Insurance Company.
26. Though the Insurance Company has not raised the above ground mentioned before the Tribunal, the Tribunal has to examine the policy, such as, whether the petitioner has any legal right to claim any amount under the policy and whether the claimant comes under third party or not and without impleading the driver and owner of DCM Van bearing No.HR-38Q-9300 and how he is entitled to get compensation for his own negligence on Ex.B1-insurance policy,. The Tribunal without doing any exercise, granted a huge amounts under different heads.
27. Though the Motor Vehicles Act itself is a beneficial legislation and under the guise of that, without doing any exercise or without any proper examination cannot grant 19 SP,J & RRN,J M.A.C.M.A.No.524 of 2022 & Cross Objections No.21 of 2023 such a huge amounts under the beneficial legislation. The Courts can give the excess amount basing on the injuries sustained, loss of amenities in life etc., whereas in the present case, there is no dispute that the injuries sustained by the petitioner are serious in nature. The Tribunal without examining the policy and without impleading the owner and driver of DCM Van, who are also responsible for the said accident, cannot come to a conclusion that the accident occurred only due to the rash and negligent driving of the driver of the crime vehicle and cannot grant such a huge amounts.
28. Sri Jagathpal Reddy, learned counsel for the petitioner relied upon the judgment in NATIONAL INSURANCE COMPANY LIMITED Vs. BALAKRISHNAN AND ANOTHER 3, with regard to the liability of the Insurance Company in respect of third party risk. The Apex Court allowed the Insurance Company appeal and remanded the matter to the Tribunal for the purpose of fresh adjudication. In the said case, whether the policy is a comprehensive policy or Act policy, there is no discussion in the impugned order. 3 2013 ACJ 199 20 SP,J & RRN,J M.A.C.M.A.No.524 of 2022 & Cross Objections No.21 of 2023 Therefore, the Apex Court remanded the matter for adjudication.
29. In the present case, the Tribunal did not discuss whether the policy is a comprehensive policy or a Third party.. Under Ex.B1-Insurnace Policy, the policy holder paid an amount of Rs.100/- towards compulsory P.A. to owner-cum- driver to a tune of Rs.2,00,000/- and he also paid a sum of Rs.50/- towards legal liability to be paid to the driver/cleaner/employee (number of persons 1).
30. Learned counsel for the 2nd respondent relied upon the decision in NEW INDIA ASSURANCE COMPANY LIMITED Vs. SADANAND MUKHI AND OTHERS 4, wherein the Hon'ble Apex Court held as follows :-
"The first respondent was owner of a motor cycle which was insured with the appellant Company. The son of the insured, while driving the motor cycle met with an accident and died. The respondents herein filed a claim petition. The appellant herein raised the specific contention that keeping in view the relationship between the deceased and the owner of the motor vehicle i.e., father and son, he was not a third party and the claimants could not seek compensation on the basis of the provisions of the 4 (2009) 2 Supreme Court Cases 417 21 SP,J & RRN,J M.A.C.M.A.No.524 of 2022 & Cross Objections No.21 of 2023 Act. The Tribunal held the insurer liable to pay compensation to the claimants. An appeal filed against the order of the Tribunal was dismissed by the High Court."
31. With regard to third party, the Apex Court observed as follows :-
"Before the High Court the appellant raised specific contentions in its memorandum of appeal, which are as under :-
"C. For that the learned court below ought to have considered that as in the present case the deceased was not a third party rather he was the son of the insured at the relevant time of accident who was driving the vehicle rashly and negligently, the insured cannot claim compensation until and unless negligence on the part of the insured is established and proved. D. For that the learned counsel ought to have considered that the Motor Vehicles Act provides provisions for compensation for the death of the third party from the insured vis-à-vis the insurance company but there is no provision in the Act wherein an insured may claim himself compensation from himself."
"..... on a plain reading of Section 147 of the Act, it appears to be clear that the Insurance Company is not liable to indemnify the insured in the case on hand."
22 SP,J & RRN,J M.A.C.M.A.No.524 of 2022 & Cross Objections No.21 of 2023
32. With the above observations, the Apex Court allowed the Appeal.
33. In the present case, there is no discussion with regard to policy and how owner will claim on his own policy is in question?
34. The trial Court ought to have discussed the FIR and charge-sheet with regard to the manner of the accident. When the 2nd respondent and the petitioner has specifically pleaded about the involvement of DCM, the trial Court ought to have discussed the said aspect to come to a conclusion about the manner of the accident, but without such an exercise, the trial Court came to a conclusion that the accident occurred only due to the rash and negligent driving of the driver of the Car. The trial Court also erred in not deducting the income tax payable by the petitioner. The Tribunal ought to have deducted the income tax from the petitioner's income, but failed to do so. A perusal of the impugned order with respect to calculation shows that a mistake was made while calculating the amounts as stated 23 SP,J & RRN,J M.A.C.M.A.No.524 of 2022 & Cross Objections No.21 of 2023 supra. The trial Court failed to assign any reason whether the petitioner is a third party or not.
35. In AMRIT LAL SOOD's case (1 Supra), which is relied on by the learned counsel for the 2nd respondent, the Apex Court held as follows :-
"The statutory insurance does not cover injury suffered by occupants of the vehicle who are not carried for hire or reward and the insurer cannot be held liable under the Act. But that does not prevent an insurer from entering into a contract of insurance covering a risk wider than the minimum requirement of the statute whereby the risk to gratuitous passengers could also be covered. In such cases where the policy is not merely a statutory policy, the terms of the policy have to be considered to determine the liability of the insurer.
5. In the present case, the policy is admittedly a ' comprehensive Policy'. comprehensive insurance' has been defined in Black's Law Dictionary 5th edition as 'All risk insurance' which in turn is defined as follows:-
" Type of insurance policy which ordinarily covers every loss that may happen, except by fraudulent acts of the insured. Miller v. Boston Ins. Co. 218 A. 2d 275, 278, 420 Pa. 566. Type of policy which protects against all risks and perils except those specifically enumerated."
24 SP,J & RRN,J M.A.C.M.A.No.524 of 2022 & Cross Objections No.21 of 2023
36. In GANGISETTI NAGA LAKSHMI's case (2 Supra), which is relied on by the learned counsel for the 2nd respondent, the High Court of Andhra Pradesh held as follows :-
42. In the recent judgment of the Apex Court in National Insurance Company Limited v. Balakrishna and another MANU/SC/0987/2012 : 2012(8)SCJ 492: 2013 ACJ 199, the Apex Court discussed various guidelines issued by I.R.D.A., which are extracted as follows:
The above circulars make it clear that the insured liability in respect of the occupant(s) carried in a private car and pillion rider carried on two-wheeler is covered under the Standard Motor Package Police. A copy of each of the above circulars is enclosed for read reference."
37. In the above two cases, the Apex Court as well as the High Court of Andhra Pradesh discussed about the comprehensive policy and also the guidelines issued by I.R.D.A.
38. The 2nd respondent has not discussed about the comprehensive policy and also with regard to the guidelines issued by I.R.D.A. before the trial Court. Moreover, before the trial Court, the 2nd respondent did not contest the matter and 25 SP,J & RRN,J M.A.C.M.A.No.524 of 2022 & Cross Objections No.21 of 2023 did not file counter affidavit and he remained ex-parte. In the present appeal only, the 2nd respondent relied upon the said two judgments with regard to comprehensive policy and also the guidelines issued by I.R.D.A. In the instant case, the Insurance Company or the petitioner did not raise any issue with regard to comprehensive policy and also with regard to the guidelines issued by I.R.D.A. Therefore, the said two judgments relied on by the learned counsel for the 2nd respondent are not applicable to the case on hand.
39. For all the aforesaid reasons, this Court feels that it is appropriate to remand the matter to the trial Court for fresh adjudication.
40. Accordingly, M.A.C.M.A.No.524 of 2022 is allowed by setting aside the order dated 18.05.2022 passed in M.V.O.P.No.2621 of 2015 on the file of the IX Additional Chief Judge, City Civil Court, Hyderabad, and the matter is remanded to the trial Court for fresh adjudication. The trial court is directed to dispose of the matter within a period of twelve months from the date of receipt of a copy of this order.
26 SP,J & RRN,J M.A.C.M.A.No.524 of 2022 & Cross Objections No.21 of 2023 Cross Objections No.21 of 2023
41. Since the main appeal itself is allowed by setting aside the impugned order, the question of interference in the cross objections does not arise. Therefore, the cross objections are dismissed. No order as to costs.
As a sequel, miscellaneous petitions, if any are pending, shall stand closed.
________________ SUJOY PAUL, J _____________________________________ NAMAVARAPU RAJESHWAR RAO, J 05th day of November, 2024 Prv