The New India Assurance Co. Ltd. vs Mohd. Iliyas And Another
2021 Latest Caselaw 11398 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 18
 
										A.F.R.
 
Case :- FIRST APPEAL FROM ORDER No. - 163 of 2001
 

 
Appellant :- The New India Assurance Co. Ltd.
 
Respondent :- Mohd. Iliyas And Another
 
Counsel for Appellant :- Anand Mohan,Asit Srivastava
 
Counsel for Respondent :- D.K.Agarwal
 

 
Hon'ble J.J. Munir,J.

1. This is an Appeal by the Insurer from an award of the Motor Accident Claims Tribunal, Sitapur, under Section 173 of the Motor Vehicles Act, 1988. The claim petition, giving rise to this Appeal, being Motor Accident Claim Petition no.325 of 1995 was instituted on 25.12.1997 before the District Judge/ Motor Accident Claims Tribunal, Sitapur by Mohd. Iliyas, respondent no.1 to this Appeal. Pankaj Shukla, the second respondent here, and the New India Assurance Co. Limited, were arrayed as the two opposite parties to the claim petition. The New India Assurance Co. Limited is the appellant here.

2. As facts would show in greater detail, Pankaj Shukla, respondent no.2 here, was operating the motor scooter, with whom respondent no.1, Mohd. Iliyas, the claimant was a pillion rider, when the vehicle met with the accident, giving rise to this claim. The claimant-respondent no.1 sustained serious injuries in the accident and claimed compensation under various heads, which has been granted by the Tribunal vide the award impugned. Since the appellant was the Insurer, who had insured the two wheeler that the two respondents were riding, they have been ordered to indemnify and satisfy the award. That is what has led the Insurance Company to prefer the present Appeal.

3. Mohd. Iliyas, the claimant-respondent no.1, shall hereinafter be referred to as 'the claimant', whereas Pankaj Shukla, the second respondent, who was operating the scooter, that met with the accident, shall hereinafter be referred to as 'the rider'. The appellant, New India Assurance Co. Limited, shall hereinafter be called 'the Insurer'.

4. Shorn of unnecessary details, on May the 4th, 1997 the claimant was riding pillion with the rider on the latter's scooter, bearing registration no. UP 34A 5623. Both these men are employees of the District Court, Sitapur. At about 9:45 a.m. as the scooter, carrying the two, approached the Bus Stand at Sitapur, the scooter swerved, to prevent a collision with a rickshaw that suddenly appeared from the left hand side. In consequence, the scooter hit a truck on its backside, causing both the rider and the claimant to be thrown to the ground. The scooter, of course, had tripped. In consequence, the claimant sustained serious injuries, that are indicated to be four fractures in the pelvis and rupture of the urethra. He had a long and repeat stay in hospitals, in a non-ambulatory condition for three months and suffered extreme physical pain. He had to attend the call of nature while being on his bed. The claimant had to undergo prolonged treatment and multiple surgical procedures, involving substantial expenditure in the treatment. The accident, according to the medical certification, has left the claimant permanently impotent. The claimant instituted the claim petition, as already detailed hereinbefore, asking the rider and the Insurer to pay him compensation in the sum of Rs.5,75,150/-. These expenses have been claimed under thirteen different heads, set out in paragraph no.22 of the claim petition. There is a detailed statement of the medical management, hospitalization, non-ambulatory period when the claimant was bed ridden and the repeat surgery that the claimant had to undergo, besides a future darkened by impotency and a prolonged medical supervision; may be life long.

5. The rider put in a written statement, saying that the accident did not take place due to his negligence. It happened because of the sudden appearance of the rickshaw on the wrong side, and a collision with it had to be prevented. It was pleaded that he held a valid driving licence and his vehicle was duly insured with the Insurer. The compensation, if any payable, had to be borne by the Insurer.

6. The Insurer put in their written statement, traversing the claim. It was pleaded that the claim was not verifiable, inasmuch as there was no site-plan. No cause of action had arisen against the Insurer. The rider had not intimated the Insurer of the accident. The claim petition was based on false and concocted facts in order to wrench compensation from the Insurer. It was also said that they would have been liable, if the vehicle was insured and that the policy had not been disclosed. It was also said that if the rider did not have a valid driving licence, they would not be liable. The further case was that the claimant had to establish his case by documentary evidence. An objection was also taken that the truck owner and the driver were not impleaded, and, therefore, the claim was bad for non-joinder of necessary parties. It was also the Insurer's case that the scooter was not being operated according to the terms and conditions of the Insurance Policy.

7. On the pleadings of parties, the following issues were framed by the Tribunal (translated into English from Hindi):

"(1) Whether on 04.05.1997 at 9:45 a.m. near the Bus Stand at Sitapur, the scooter bearing Registration No. UP 34A 5623 met with an accident involving a truck and the claimant received injuries in the accident?

(2) Whether the accident happened because of both the drivers driving the vehicles at high speed and negligently? If yes, its effect?

(3) Whether on account of non-joinder of the truck owner, driver and the truck insurer, the claim is bad for non-joinder?

(4) Whether the two vehicles were insured and operated according to the terms of the insurance policy?

(5) Whether the drivers of the two vehicles had valid and effective driving licences at the time of the accident? If yes, its effect?

(6) To what amount of compensation is the claimant entitled?"

8. The claimant examined himself in support of his claim as PW-1, besides another Raja Bux Sngh as PW-2. On behalf of the opposite parties to the claim petition, the rider examined himself as OPW-1. The claimant filed voluminous documentary evidence, which includes X-ray reports, treatment cards of various doctors and specialist doctors, discharge slips from hospitals, nursing home discharge slips, case-sheets from hospitals, nursing home bills and cash memos of the medicines purchased, ambulance bills and receipts, bills and payment receipts relating to surgeries undergone at the Blue Cross Hospital, Lucknow, the information given to the Civil Judge (Sr. Div.), with whom the claimant was working as a Munsarim, the order of the District Judge, sanctioning him an advance from the GPF, the claimant's salary certificate and report of the Medical Board, recommending special medical leave for the claimant. There is a very detailed description of all this documentary evidence set out in the impugned award, which need not be further listed, except where the relevant document is required to be referred to. The Insurance Company, as part of their documentary evidence, filed their surveyor's report, the rider's driving licence, the insurance cover note/ policy. The rider, for his part, filed his driving licence, the scooter's registration certificate and the insurance policy/ cover note.

9. On issues nos.1 and 2, the Tribunal, after an extensive review of evidence and the law applicable, held that the accident took place on the date, time and place alleged, involving the scooter and the truck. Both the drivers were rash and negligent, but the rider of the scooter was largely guilty of negligent driving. The Tribunal found contributory negligence on the part of the driver of the truck and the rider of the scooter, apportioning the liability between them as 20% and 80% respectively. The truck driver, its owner or insurer could not be found, and, therefore, issue no.3 was also answered in favour of the claimant by holding that to the extent of contributory negligence found for the driver of the truck, the claimant would be deprived of the compensation that he could recover from the owner, the driver or the insurer of the truck.

10. Issue no.4 was decided in the manner that it was held that the truck having escaped traceless with no identity about its owner, driver or insurer known, it would be assumed that it was insured.

11. The fifth issue was decided in the manner that the rider had filed his driving licence, which was found to be valid on the date of the accident and the Insurer could not dispel the validity of the licence. About the truck, it was said that there was no licence lodged on behalf of the truck driver or the owner, and, therefore, it would be assumed that he had no valid driving licence at the time of the accident.

12. On the sixth issue, the Tribunal did a minute examination of the compensation claimed under various heads, with reference to the documentary evidence and held, under different heads, that the claimant was entitled to a total compensation of Rs.1,98,300/-. Of this amount, 80% would be payable to the claimant because he would lose 20% that was the apportioned share of the negligent truck driver, who could not be located or brought before the Tribunal. Thus, the liability of the Insurer would be 80% of Rs.1,98,300/- payable with interest at the rate of 12% per annum reckoned from the date of presentation of the claim.

13. Heard Mr. Asit Srivastava, learned Counsel for the appellant in support of this Appeal. No on appears on behalf of the respondents.

14. It must be remarked that the claimant has not raised any issue about the finding on the point of contributory negligence and apportionment of liability between the two vehicles, to wit, the scooter and the fugitive truck. In substance, therefore, whatever be the law about the right of the claimant to recover compensation, where one of the vehicles cannot be identified, and there is contributory negligence held with apportionment, the case here is limited to judging the validity of the award made by the Tribunal, for whatever it is.

15. So far as the factum of accident, its date, time and place is concerned, it has been sought to be assailed on the basis of the claimant's failure to lodge an information with the Police or to summon the GD Entry from Police Station, Kotwali, Sitapur about the accident. It has been emphasized that the claimant's father was a Munsarim in the Civil Court, and so is the claimant. They are men well acquainted with legal procedures and ought to have lodged a First Information Report. The suggestion is that the claimant received the injuries in question in some other motor accident or under different circumstances, not involving the insured vehicle. The claimant has entered the witness-box and proved his case. The rider, who was examined as OPW-1, has also proved the factum of accident. The mere absence of an FIR would not shroud an accident of this magnitude under any kind of doubt. After the claimant and the rider, both testified to the factum of accident, its time, place and the manner of occurrence, burden lay upon the Insurer to rebut by cogent evidence that the accident never happened in the manner described.

16. The Insurer has not led any evidence to dispel the factum of accident or its time, place and manner of occurrence. In the absence of any evidence produced by the Insurer, the findings of the Tribunal about the accident have to be upheld. It is well-nigh settled that mere non-registration of an FIR concerning the accident, would not be decisive about the accident ever happening. It was a non-fatal accident, where the claimant was severely injured and the rider was rash and negligent. Both are employees of the Civil Court, Sitapur. If they have chosen not to lodge an FIR about the accident, where the rider dashed against the truck from the backside, there is nothing so unnatural about their failure that may detract from the truth of the accident or its time, place and manner of occurrence.

17. There is some evidence that information was given to the police station by the claimant's brother, who serves in a foreign country, on account of which, a copy of that information could not be produced. The fact that the Police did not register that information is also not of much consequence, inasmuch as invariably informations about accidents, where one party is not out to prosecute the other, are often not registered as crimes. The Tribunal, in the opinion of this Court, has rightly believed the accident to have happened in the manner and on the date, time and place as alleged by the claimant; and not disputed by the rider. The finding about the rider being negligent and rash while operating his scooter is also far from exceptionable. Learned Counsel for the appellant has not raised much issue about the said finding, though he says that the truck driver ought to have been held liable for more contribution to the negligence, because he was operating the larger vehicle. We do not think so. The manner, in which the accident took place, is not a very complex episode. It appears that some rickshaw suddenly appeared on the scene when the scooter operated by the rider and pillion ridden by the claimant was moving towards the Sitapur Bus Stand. In order to save the rickshaw from being hit by the scooter, the rider swerved to one side. That sent the vehicle on the path of accident, leading it to dash on to the rear side of the unknown truck.

18. From these facts, the Tribunal has inferred that the rider was driving rashly and negligently. This finding appears to be unexceptionable. The reason is that careful driving envisages the foresight of another's foolishness or incompetence on the road. A careful driver has to operate his vehicle in the manner that he can avert an accident, notwithstanding another's mistake or negligence. This is, particularly, true of the road conditions in small towns, where rule of the road and other niceties of traffic management do not come to the aid of a disciplined driver or check the recalcitrant one. The road conditions in small towns, unregulated by traffic signals, are a multi-dimensional movement of vehicles or traffic, with a mix of all kinds of mobile entities on the same pathway. It could include pedestrians, very slow moving vehicles and the presence of animals as well. A driver who chooses to operate his vehicle in this kind of traffic has to condition his driving instincts, and, particularly, regulate his speed to a degree where an unexpected movement by another may be negotiated to avert an accident.

19. What would be careful driving in the regulated conditions of a metropolis may not be so in a small mofassil town. The rider in this case, assessing from what appears in evidence, seems to have committed the mistake of moving at a speed that prevented him from bringing his vehicle to a halt or negotiate to safety, when the rickshaw suddenly appeared on the wrong side. The speed of the scooter was certainly so much, that the sudden appearance of the rickshaw caused the driver to swerve and dash his two-wheeler on the rear side of the truck. This is certainly a case, where the rider was largely negligent and responsible for the accident. There is no case that the accident occurred because the truck had suddenly applied brakes, bringing the bigger vehicle to a halt. The accident was perpetuated by the unforeseen intrusion of the rickshaw. Therefore, the learned Counsel for the Insurer, Mr. Srivastava is not right in his submission that the bigger vehicle ought to have been apportioned with more liability towards contributory negligence.

20. So far as the quantum of compensation is concerned, this Court has gone through the documents relating to the treatment that the claimant received. No doubt, he has suffered debilitating fracture to his pelvic bone and rupture of the urethra. He has undergone multiple surgical operations in various hospitals at Lucknow. He has turned impotent in consequence of the accident, of which there is a certificate on record from Dr. Rajeshwar Krishnan of Blue Cross Hospital, Faizabad Road, Maha Nagar, Lucknow, paper no. 17ग/30. There is no reason to disbelieve the said certificate. Quite apart, there are consistent records about the repeat surgical procedures undergone by the claimant at the Blue Cross Hospital, Lucknow and the treatment that he had received at Neera Nursing Home, Mahanagar Extension, Lucknow. The case-sheets relating to that treatment and the medicines administered, while an indoor, are there. Of foremost importance is Paper No. 60ग, which is a copy of the report of the Divisional Medical Board, Lucknow, comprising three Senior Government Doctors. The report certifies that the claimant was examined and found to be a case of urethral dispersion with fracture in the pelvis. The aforesaid Medical Board, by their report dated 27.08.1997 (paper no.60ग) recommended sanction of special medical leave to the claimant. There is also on record paper no.16ग1/59 and 16ग/60, which are orders dated 05.07.1997 and 17.07.1997 passed by the District Judge of Sitapur, sanctioning Earned Leave and Medical Leave to the claimant. By the order dated 05.07.1997, the learned District Judge sanctioned Earned Leave from 01.07.1997 to 31.07.1997 and by the order dated 17.09.1997, medical leave on full average pay was sanctioned, from 01.08.1997 to 31.10.1997. There are tomes of medical bills and receipts, apart from medical reports, that go to show the extensive nature of injuries and the consequent pain and suffering the claimant has evidently suffered. The Insurer has not brought on record any evidence to dispel the truth of these well connected and sequenced documents, evidencing the medical procedures and treatment undergone by the claimant. The Insurer cannot, therefore, dispute the validity of the various medical records by insisting that these records have not been proved by examining the various doctors, who have been involved in treating the claimant across a protracted period of time.

21. The Tribunal, in our opinion, has awarded him compensation, marshalled into different heads, on a modest scale. It is by no means extravagant, as the learned Counsel for the Insurer urges.

22. There is one point that was, particularly, argued with much emphasis by Mr. Asit Srivastava, learned Counsel for the Insurer. He submitted that the Insurance Policy did not cover the risk of the pillion rider. Evidently, this point was not urged before the Tribunal and no issue was framed about it. Nevertheless, this Court has looked into the xerox copy of the Insurance Policy, that is on record as Paper No. 18ग/28. The Insurance Policy covers the risk of any person, including the insurer. The policy is clearly a comprehensive policy or what is called, in current times, as package policy. A policy of this kind, in our opinion, covers the risk of the pillion rider as much as it does of the rider/ insured. It was not disputed before this Court that the policy involved in this case is a comprehensive policy/ package policy. It is not a mere Act policy or a third party policy. The position about the occupants in a car or a pillion rider on a two wheeler, where the policy is a comprehensive/ package policy, is well settled in view of the decision of the Supreme Court in National Insurance Company v. Balakrishnan & another, (2013) (1) SCC 731. In National Insurance Company v. Balakrishnan & another, it has been held:

"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 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 various insurance companies, eventually stated [2011 ACJ 1415 (Del)] 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 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 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 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 [(2009) 7 SCC 148 : (2009) 3 SCC (Civ) 87 : (2009) 3 SCC (Cri) 321] 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."

23. In this view of the matter, the Insurer can hardly wriggle out of their liability to satisfy the award.

24. In the result, the appeal fails and is dismissed with costs. The interim order dated 19.09.2001 is hereby vacated.

25. It is further directed that in case accounts of the Motor Accident Claims Tribunal have been assigned to the newly established Motor Accident Claims Tribunal, the learned District Judge, Sitapur and the learned Presiding Officer, Motor Accident Claims Tribunal, Sitapur shall together take necessary steps for disbursement of compensation to the claimant.

26. Let a copy of this order be communicated to the Motor Accident Claims Tribunal/ Additional District Judge, Sitapur through the learned District Judge, Sitapur and to the Presiding Officer, Motor Accident Claims Tribunal, Sitapur by the Senior Registrar.

Order Date :- 29.11.2021

Anoop

(J.J. Munir, J.)