Bombay High Court
Dr. Deochand Dhondiba Shelke vs Vishnu Shriram Varkad & 3 Ors on 11 August, 2017
Bench: I.K. Jain
FA 28.08.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
FIRST APPEAL NO.28 OF 2008
Dr. Deochand Dhondiba Shelke,
Aged about 45 years,
Occupation - Service,
R/o. C/o. Primary Health Centre,
Tirthipuri, Tahsil-Dhansawangi,
District-Jalna. .. APPELLANT
.. VERSUS ..
1] Vishnu Shriram Varkad,
Aged about 44 years,
Occupation-Labourer.
2] Shailesh Vishnu Varkad,
Aged about 16 years.
3] Nilesh Vishnu Varkad,
Aged about 13 years.
Respondents' No.2 and 3 minor,
through guardian father Vishnu
Shriram Varkad, respondent no.1,
hereinabove, All R/o. Isoli,
Tah. Chikhali, Distt. Buldana.
4] The Oriental Insurance Company
Limited, through its Branch Manager,
Khamgaon, Tahsil and District-
Buldana. .. RESPONDENTS
..........
Shri R.L. Khapre, Advocate for Appellant,
Shri D.N. Kukday, Advocate for Respondent No.4.
........
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FA 28.08.odt 2
CORAM : KUM. INDIRA JAIN, J.
DATED : AUGUST 11, 2017.
ORAL JUDGMENT
This appeal is directed against the judgment and
award dated 4.8.2007 passed by the Motor Accident Claims
Tribunal, Buldana in Motor Accident Claims Petition
No.211/2002. By the said judgment and award, tribunal
saddled the liability of payment of compensation to the tune
of Rs.7,85,859/- on non-applicant no.1 therein/appellant
holding that the liability of pillion rider was not covered
under the policy and insurance company would not be liable
to pay compensation to claimants.
2] The facts giving rise to the appeal may be stated
in brief as under :
(i) Respondent nos.1 to 3 are the legal
representatives of deceased Chandrakala, who died in a
vehicular accident. On 28.5.2002 Chandrakala had been to
Baygavahan to attend Pulse Polio Camp. After attending
camp, she was returning home on motorcycle. Appellant
was driving motorcycle and she was pillion rider. Appellant
lost control over the vehicle due to which Chandrakala was
thrown on the road. She sustained head injury. She was
admitted to hospitals at Jalna and Aurangabad. During
treatment, she died on 9.6.2002.
(ii) Respondent nos.1 to 3, being the legal
representatives of Chandrakala, filed an application under
Section 166 of the Motor Vehicles Act claiming
compensation against the owner and insurer of offending
vehicle.
(iii) Respondent no.4/Non-Applicant No.2 filed
written statement vide Exh.19 and denied its liability to pay
compensation. The submission was that insurance policy
did not cover the liability of pillion rider and insurance
company cannot be saddled with liability to pay
compensation. Another submission on behalf of insurer was
that driver of motorcycle was not holding a valid and
effective driving licence and in view of breach of terms and
conditions of policy, insurance company is not liable.
3] On rival contentions of the parties, tribunal framed
issues. Claimants examined two witnesses PW-1 Vishnu
Shriram Varkad, husband of deceased and PW-2 Ramkishan
Limbhare, Clerk, Primary Health Centre. Reliance was
placed on several documents by applicants. Respondents
did not adduce any evidence in support of defence.
4] The tribunal, upon considering oral and
documentary evidence, came to the conclusion that
accident occurred due to rash and negligent driving of
vehicle by non-applicant no.1 and claimants are entitled to
compensation, as claimed. However, while saddling liability
inter se between non-applicant no.1 and non-applicant no.2
that is the owner and insurer, tribunal found that insurance
policy (Exh.45) did not cover risk of pillion rider and held
that owner of motorcycle alone would be liable to pay
compensation to claimants. Being aggrieved by such
findings, owner of motorcycle has preferred the present
appeal.
5] Heard Shri Khapre, learned counsel for appellant
and Shri Kukday, learned counsel for respondent no.4.
6] The learned counsel for appellant submitted that
tribunal found the policy was a comprehensive policy, still
came to the conclusion that risk of pillion rider was not
covered under policy. Learned counsel relied upon the
judgment of the Hon'ble Supreme Court in National
Insurance Company Limited .vs. Balakrishnan and another
[AIR 2013 SC 473] and submitted that controversy is
squarely covered by judgment of the Hon'ble Supreme Court
and in case of comprehensive policy, it is not necessary to
pay separate premium as what expected by tribunal in its
order.
7] Per contra, the learned counsel for respondent
no.4-insurer fairly conceded the law laid down by the
Hon'ble Supreme Court regarding the risk covered under
comprehensive policy in case of a pillion rider.
8] Referring to copy of driving licence (Exh.69),
learned counsel submitted that at the relevant time driver
was not holding valid and effective driving licence and in
view of breach of terms and conditions of policy, insurer was
not liable to pay compensation.
9] So far as second contention raised by learned
counsel for respondent no.4-insurer is concerned, it can be
seen from record that copy of driving licence was filed by
owner of motorcycle along with an application Exh.67. The
tribunal, without calling say of claimants and insurance
company, allowed copy of licence to be exhibited.
Insurance company has not adduced any evidence to
establish breach of terms and conditions of policy for want
of valid licence by driver of motorcycle. The impugned
judgment and order clearly indicates that no submissions as
such were made before tribunal and tribunal also has not
dealt with the contention raised by insurer regarding breach
of terms and conditions of policy for want of valid and
effective driving licence.
10] Needless to state that it was for insurer to prove
breach of terms and conditions of insurance policy. As the
same has not been proved, the submission made on behalf
of respondent no.4 regarding breach of terms and conditions
of policy for want of valid and effective driving licence holds
no water.
11] The next question then arises is regarding liability
of insurance company to pay compensation. Insurance
policy (Exh.45) is not disputed by claimants and insurer.
This was produced by owner of the vehicle. The validity
period of insurance was from 29.4.2002 to 28.4.2003.
Claimants have duly proved that accident occurred on
28.5.2002 that is within the valid period of insurance. It can
be seen from insurance policy that it was a comprehensive
policy. Even tribunal found that motorcycle was covered
under comprehensive policy. As separate premium to cover
risk of pillion rider was not paid, tribunal arrived at
conclusion that risk of pillion rider is not covered under the
policy. In view of judgment of the Hon'ble Supreme Court
referred by learned counsel for appellant, reasons recorded
by tribunal are not sustainable. In paragraph 21 of National
Insurance Company Limited .vs. Balakrishnan and
another (supra), the Hon'ble Supreme Court observed
thus :
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 Bhagyalakshmi (2009
AIR SCW 5325) 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] In view of the aforesaid legal position and since
policy is comprehensive policy, the risk of pillion rider is
covered under the policy (Exh.45). The impugned order
refusing to saddle liability on insurance company, therefore,
needs to be quashed and set aside. Hence, the following
order :
ORDER
(i) First Appeal No.28 of 2008 is partly allowed to the
extent indicated above and clauses 2 and 6 of the operative
order passed by tribunal are modified as follows.
(2) Non-applicant nos.1 and 2 are jointly and
severally liable to pay Rs.7,85,859/- as compensation to
applicants including amount of interim compensation
awarded towards no fault liability along with interest at the
rate of 7.5 % per annum from the date of filing of application
till its realization.
(6) Deleted
(ii) Respondent no.4-Insurance company shall pay the
costs.
(iii) Statutory deposit, if any, shall be refunded to
appellant.
(iv) No costs.
(Kum. Indira Jain, J.)
Gulande, PA
