Bombay High Court
New India Assurance Co. Ltd. ... vs Padmini Ashok Kendre And Ors on 10 April, 2017
Bench: V.K. Jadhav
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37 FIRST APPEAL 333 of 2009.odt
THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
FIRST APPEAL NO. 333 OF 2009
New India Assurance Company Ltd.,
Aurangabad, Through its
Divisional Manager, Adalat Road,
Aurangabad. ... APPELLANT
(Original Respondent No.2 & 4)
V E R S U S
1. Padmini W/o Ashok Kendre,
Age: 36 years, Occu : Labour,
R/o Mulgaon Patoda, Post Kajali Hipparga,
Taluka Ahmedpur, District Latur.
At present C/o Madhav Pandharinath Rakh,
R/o CIDCO, M.A.C.P. No.-2, 21/5 Ramnagar,
Mukundwadi (Tanhaji Nagar), Aurangabad.
2. Shital D/o Ashok Kendre,
Age : 19 years, Occu : Household,
R/o As above.
3. Sandhya D/o Ashok Kendre,
Age : 17 years, Occu : Education,
R/o As above.
4. Alesh S/o Ashok Kendre,
Age : 14 years, Occu : Education,
R/o As above.
5. Balrishna S/o Ashok Kendre,
Age : 11 years, Occu : Education,
R/o As above.
6. Smt. Vithabai W/o Vyankatrao Kendre,
Age : 62 years, Occu : Labour,
R/o As above.
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37 FIRST APPEAL 333 of 2009.odt
7. Shobha Dnyanoba Rachmate, R/7 is dismissed as per
Age : Major, Occu : Business, Court order dt. 27/4/2010.
R/o Waygaon, Taluka Ahmedpur,
District Latur.
8. Jamalajah Ingina Narasaiah, R/8 dismissed as per
Age : Major, Occu : Business, order dt. 1/2/10.
R/o 16-4-6, RTC Colony,
Ina Vigaya Wada State Andhara Pradesh. ... RESPONDENTS
( Resp Nos.1 to 6 Org. Claimants)
(Resp Nos.7 & 8 - Org. Resp Nos.1 & 3)
...
Mr. S. G. Chapalgaonkar, Advocate for Appellant.
Mr. P. S. Tandase, Advocate for Respondent Nos.1 to 6.
...
CORAM : V. K. JADHAV, J.
DATE : 10th April, 2017.
ORAL JUDGMENT:
. Being aggrieved by the judgment and award passed by
the learned Chairman of the Motor Accident Claims Tribunal,
Aurangabad dated 22nd September, 2008 in MACP No.425 of 2004,
original Respondent No.2 / Insurer has preferred this appeal.
2 The learned counsel for the Appellant / Insurer has
challenged the judgment and award passed by the Tribunal mainly on
the ground that the policy covers the risk of the occupant of a private
jeep involved in the accident to the extent of limit of Rs.1,00,000/-.
37 FIRST APPEAL 333 of 2009.odt
3 On 8th January, 2004, deceased Ashok was travelling in a
Tata Sumo Jeep bearing registration No.MH-24/C-3142 from Matunga
Mumbai to his village Patoda. On Pune-Solapur highway, near village
Maladgaon, one truck came from the opposite direction and there was
a head on collision between the truck and the said Tata Sumo jeep.
Deceased Ashok sustained severe injuries and died on the spot. The
Claimants approached to the Motor Accident Claims Tribunal,
Aurangabad by filing MACP No.425 of 2004 for grant of compensation
under the various heads. The Appellant / Insurer has strongly
resisted the claim on the ground that the policy covers the risk of the
occupant of a private car to the limit of Rs.1,00,000/- only and beyond
that the Appellant / Insurer is not liable to pay the compensation. The
Appellant / Insurer has also challenged the judgment and award
passed by the Tribunal on other grounds, however, the same are not
relevant for the purpose of deciding this appeal.
4 The learned Member of the Tribunal has directed the
Respondents jointly and severally to pay the compensation of
Rs.4,04,000/- to the Claimants. The learned counsel for the
Respondents / original Claimants submits that in view of the
37 FIRST APPEAL 333 of 2009.odt
authoritative pronouncement of the Supreme Court in the case of
National Insurance Company Ltd. Vs Balakrishnan and another,
reported in, AIR 2013 Supreme Court 473, that the Act Policy is
distinct from the comprehensive / package policy.
5 In the case of National Insurance Company Ltd. Vs
Balakrishnan and another (supra), in paras 21, 22 and 23 of the
judgment, the Supreme Court has made the following observations:
"21. 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
37 FIRST APPEAL 333 of 2009.odt
Bhagyalakshmi (2009 AIR SCW 5325) (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.
22. 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-1 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.
23. In view of the aforesaid analysis, we think it
apposite to set aside the finding of the High Court and
the tribunal as regards the liability of the insurer and
remit the matter to the tribunal to scrutinize the policy in
a proper perspective and, if necessary, by taking
additional evidence and if the conclusion is arrived at
that the policy in question is a
"Comprehensive/Package Policy", the liability would be
37 FIRST APPEAL 333 of 2009.odt
fastened on the insurer. As far as other findings
recorded by the tribunal and affirmed by the High Court
are concerned, they remain undisturbed."
6 In the instant case, the insurance policy is placed on
record and the same is marked as Exhibit - 76. On perusal of the
same, it appears that the said policy is a private car package policy.
So, in view of the aforesaid judgment of the Supreme Court, the
Appellant / Insurer is liable to satisfy the award under the package
policy if passed against the insured under the contract of insurance.
In the instant case, the risk is covered under the package policy and
as such, the Appellant / Insurer is liable to pay the entire
compensation. The learned Member of the Tribunal accordingly held
the Appellant / Insurer liable to pay the compensation. There is no
substance in the appeal and the appeal is thus, liable to be dismissed.
In view of this, I do no find any fault in the impugned judgment and
award passed by the Tribunal. Hence, the following order:
O R D E R
I. The appeal, is hereby dismissed with costs.
II. Needless to say that if any amount is deposited
37 FIRST APPEAL 333 of 2009.odt
before this Court, the Respondents / Claimants
are permitted to withdraw the same.
III. The appeal is accordingly disposed of.
IV. Pending civil applications stand disposed of.
[ V. K. JADHAV, J. ]
ndm
