National Insurance Co. Ltd. vs Smt. Manju Singh And Others
2019 Latest Caselaw 3392 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved On 18.12.2018
 
 Delivered On 24.04.2019
 

 
Case :- FIRST APPEAL FROM ORDER No. - 4255 of 2012
 
Appellant :- National Insurance Co. Ltd.
 
Respondent :- Smt. Manju Singh And Others
 
Counsel for Appellant :- Arun Prakash,.
 
Counsel for Respondent :- Anoop Mishra,Ravi Prakash Singh
 

 
Hon'ble Saral Srivastava,J.

1. Heard Sri Arun Prakash, learned counsel for the appellant and Sri Anoop Mishra, learned counsel for the respondents.

2. The appellant-insurance company has preferred the present appeal challenging the judgement and award dated 23.08.2012 passed by the Motor Accident Claims Tribunal/District Judge, Etah in M.A.C.P. No. 131 of 2011 whereby, the Tribunal has awarded Rs.4,33,300/- along with 7% interest as compensation to the claimants/respondent nos.1 to 5.

3. It has been stated that one Vinod Kumar was driving the Swift D'zire Car No. RJ-14-CL-4046 (hereinafter referred to as "car") on 20.1.2011 from Etah to Jaipur along with his relative Hari Kumar Singh and when the car reached near village Kanalpura P.S. Bhusawar, District Bharatpur of National Highway No.11, due to some technical snag in the car, Vinod Kumar lost control over the car due to which car over turned on the road. In the said accident, Hari Kumar Singh and his wife Poonam suffered injuries and Vinod Kumar died due to the injuries suffered by him in the accident. It was stated that deceased was earning about Rs.3300/- per month. In the aforesaid backdrop, claimants/respondent nos.1 to 5 instituted the claim petition praying for compensation of Rs.12,15,000/- with 12% interest.

4. The claim petition was contested by the owner of the car by filing written statement denying the fact that there was no negligence of Vinod Kumar in the accident. He further stated that Car was insured with National Insurance Company Ltd. and was plied at the relevant time as per terms and conditions of the insurance policy. Thus, the liability to pay compensation, if any, is of the insurance company.

5. Insurance Company also filed written statement wherein, it denied its liability to pay compensation. It further pleaded that deceased was not employed as paid driver and insurance company had taken premium of Rs.25/- covering the risk of paid driver and, therefore, insurance company is not liable to pay compensation. It also pleaded that liability of the insurance company is subject to the terms and conditions of the insurance policy and if owner has breached any of the terms and conditions of the insurance policy, the insurance company shall not be liable to pay any compensation.

6. On the basis of the pleadings, Tribunal framed as many as four issues and learned counsel for the appellant has assailed the finding of the Tribunal on issue no.3 which has been extracted herein below:-

"क्या कथित दुर्घटना की तिथि एवं समय पर प्रश्नगत वाहन विपक्षी संख्या -2 नेशनल इन्शुरन्स कंपनी लि०. से असीमित दायित्वों को कवर करते हुए बीमाकृत था?"

7. The Tribunal in deciding the issue no.3 has held that it is not disputed that policy of the car was a comprehensive/package policy and occupants of the car are covered under the policy, therefore, deceased being occupant of the car was covered under the insurance policy and as such, insurance company is liable to pay compensation. It repelled the contention of insurance company that since deceased was not employed as paid driver on the car, therefore, insurance company is not liable to pay compensation.

8. Challenging the aforesaid finding, learned counsel for the appellant has contended that it is admitted that deceased was employed as driver on the car and insurance company has taken premium of Rs.25/- only to cover the risk of paid driver. Thus, Tribunal has acted illegally in holding that deceased being the occupant of the car is covered under the insurance policy. He contends that deceased was occupant of the car and not a third party, therefore, insurance company is not liable to pay compensation. In support of his contention, learned counsel for the appellant has placed reliance upon the following three judgements of Apex Court in the cases of Oriental Insurance Company Ltd. Vs. Jhuma Saha and Others 2007 (2) T.A.C. 12 (SC), Oriental Insurance Company Ltd. Vs. Rajni Devi and Others 2008 (2) T.A.C. 752 (SC) and New India Assurance Company Ltd. Vs. Sadanand Mukhi and Others 2009 (1) T.A.C. 425 (SC).

9. Refuting the aforesaid submission of learned counsel for the appellant, learned counsel for the respondents submits that it is not being in dispute that policy of the car was a comprehensive/package policy. He contends that deceased was driving the car and was also occupant of the car and, therefore, the risk of occupant of the car is covered under the insurance policy being a comprehensive/package policy and the insurance company is liable to pay compensation. He further submits that an act policy stands on different footing from a comprehensive/package policy and the Apex Court in the case of National Insurance Company Ltd. Vs. Balakrishnan & Another (2013) 1 SCC 731 after considering the Circular dated 16.11.2009 to Chief Executive Officers of all the insurance companies has held that occupants of a private car under the comprehensive/package policy is covered under the insurance policy. Thus, he contends that the judgement of Apex Court in the case of Balakrishnan (supra) covered the controversy in the present case and appeal of the insurance company is devoid of merit and is liable to be rejected.

10. I have considered the rival submissions of the parties and perused the record.

11. It is not in dispute that policy of the car was a comprehensive/package policy. At this juncture, it would be useful to notice paragraph 19 to 21 of the judgement of Apex Court in the case of Balakrishnan (supra) which is extracted herein below:-

"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 traveling 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". 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[13], 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."

12. The judgement of Apex Court in the case of Balakrishnan (supra) squarely covers the controversy in the present case inasmuch as, the driver of the car though was not a paid driver yet there cannot be any denial of the fact that he was occupant of the car.

13. Since, insurance company has not disputed the policy of the car was comprehensive/package policy , it had taken premium to cover the risk of the occupants of the car, therefore, judgements relied upon by the learned counsel for the appellant are not applicable in the facts of the present case.

14. The judgement of the Apex Court in the case of Jhuma Saha (supra) was rendered in the context of third party insurance and liability of the insurance company to indemnify the insured was only in case of death of third person. In the said case, claimants were heirs of the deceased and in that context, Apex Court allowed the appeal of the insurance company holding that the deceased not being a third party is not covered under the insurance policy, therefore, insurance company was not liable to pay compensation.

15. The case of Sadanand Mukhi (supra) is also rendered in the context of an act only policy, i.e., third party insurance, and after considering the said policy, Apex Court absolved the insurance company as rider of the vehicle was not a third party.

16. In the case of Rajni Devi (supra), the policy of the vehicle was also an act only policy and insurance company had taken extra premium of Rs.50/- covering the risk of the owner of the vehicle for a sum of Rs.1 lac. The Apex Court in the context of an act only policy where Rs.50/- has been charged by the insurance company covering the risk of the owner of the vehicle allowed the appeal and fixed the liability of the insurance company to the tune of Rs.1 lac after considering the terms and conditions of the insurance policy.

17. Coming to the facts of present case, as noticed earlier, it is a case where policy of the car was a comprehensive/package policy which covers the risk of occupants of the car, therefore, deceased was covered under the insurance policy. Thus, the submission of learned counsel for the appellant is devoid of merit and is rejected.

18. Thus, for the reasons given above, the appeal lacks merit and is accordingly, dismissed.

Order Date :- 24.04.2019.

Sattyarth