The Divn. Manager, United India ... vs Parmalsingh Umraosingh Karmawat ...
2021 Latest Caselaw 9989 Bom

  54FA 401.2013.odt                             1



              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.

                         FIRST APPEAL NO. 401 OF 2013

  The Divisional Manger,
  United India Insurance Co. Ltd.,
  Nagpur Divisional Office-I,
  Through the Regional Manager,
  Nagpur Regional Office,
  Shankar Nagar Square, Nagpur.
                                                        ...APPELLANT
                                             ...(ORIGINAL RESP. NO. 2)

                    Versus

  1. Parmalsingh s/o Umraosingh Karmawat,
     aged about 60 years, Occ. Labour.

  2. Gulabibai w/o Parmalsingh Karmawat,
     aged about 55 years, Occ. Household.

       Both are R/o Badar, Tah. Pohari,
       District Shivpuri (M.P.).            ...ORIGINAL PETITIONERS

  3. Satish M. Bhujade,
     age Major, Occ. Business,
     R/o Plot No. 47, Hiwarinagar,
     Nagpur.                                  ...ORIGINAL RESP. NO. 1

                                                        ...RESPONDENTS

  Smt. Mrunal Naik, Advocate for the appellant.
  None for the respondents.
                    .....

                     CORAM : PUSHPA V. GANEDIWALA, J.
    ARGUMENTS WERE HEARD ON : JULY 14, 2021.
  JUDGMENT IS PRONOUNCED ON : JULY 30, 2021.




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   54FA 401.2013.odt                                  2



  JUDGMENT :

The challenge in this appeal is to the judgment and

award dated 04/12/2007 passed by the Member, Motor

Accident Claims Tribunal, Nagpur in Claim Petition No.

96/2003, whereby the Tribunal has granted compensation of

Rs.57,500/- to the claimants along with interest @ 7.5% per

annum from the date of filing of the Claim Petition till

realisation. While passing the said award, the Tribunal has

fastened the liability of payment of compensation jointly and

severally upon the appellant - Insurance Company and the

owner of the offending vehicle.

The facts of the case may be stated as under :

2. The appellant is the Insurance Company with which

the motorcycle bearing No. MH31/X-8222, owned by

respondent No.3 herein, was insured. Respondent Nos.1 and 2

- the original claimants are the parents of the deceased Ajay.

Respondent No. 3 - the owner of the motorcycle proceeded ex-

partee throughout the proceedings.

3. On 03/10/2002, at about 11:00 pm, while the

deceased Ajay, who was pillion riding and his friend Birju, who

was riding the motorcycle, were proceeding from Bhandara

Road towards Chhapru Nagar, one unknown truck gave a

violent dash to the motorcycle, as a result of which, both of

them fell down and sustained grievous injuries. They were

hospitalized, and ultimately both of them succumbed to the

injuries.

4. Lakadganj Police registered an offence against the

driver of the said unknown truck. The parents of the deceased

Ajay filed a Claim Petition under Section 166 of the Motor

Vehicles Act, 1988 ("MV Act") before the Chairman, Motor

Accident Claims Tribunal, Nagpur against the owner and the

insurer of the motorcycle. The owner, driver and the insurer of

the offending vehicle, i.e., unknown truck were not joined as

party respondents in the Claim Petition. At the time of incident,

the age of the deceased was 20 years, and he was unmarried. It

is stated that he was working as a Labourer and was earning

Rs.15,000/- annually. The claimants, being the parents of the

deceased, claimed compensation of Rs.2,00,000/- towards loss

of dependency.

5. During the pendency of the petition, the claimants

converted their petition filed under Section 166 into the

petition under Section 163-A of the MV Act.

6. In response to the Claim Petition, the appellant

herein/ original respondent No.2 - the Insurance Company

adopted its reply (Exh.16) to the application under Section 140

of the MV Act as its written statement vide Pursis at Exh.28.

While denying its liability to pay any compensation, the

appellant - Insurance Company, in its specific pleading, stated

that the claimants have deliberately avoided to give proper

details of the Insurance Policy, particularly the date of booking

of Insurance Policy, the terms of the Insurance Policy, the

nature/ type of the Insurance Policy, i.e., whether it was a first

party insurance, comprehensive insurance or third party

insurance.

7. The Tribunal framed the following issues :

"1. Whether deceased Ajay died in accident while proceeding on Motorcycle No. MH-31/X-8222 in collusion with unidentified truck ?

2. Whether Motorcycle No.MH-31/X-8222 was insured with Res.No. 2 ?

3. Are petitioners entitled to compensation u/s. 163-A of M.V. Act ? If yes, to what extent and from whom ?"

8. The Tribunal recorded evidence as adduced by the

parties. The father of the deceased, by name Parmalsingh,

examined himself at Exh.21 and also brought on record form

AA at Exh.22, F.I.R. at Exh.23, Spot Panchanama at Exh.24,

Inquest Panchanama at Exh.25 and P.M. note at Exh.26. On the

other hand, the Insurance Company examined one Smt. Sudha

Maheshkar, Asstt. Manager as RW1 at Exh.29.

9. The Tribunal, on considering the material on

record, recorded the finding that the deceased Ajay died in the

accident involving motorcycle bearing No.MH-31/X-8222

which was insured with the appellant/ Insurance Company, in

collision with an unidentified truck. The Tribunal further held

that as the issue of negligence is not to be examined while

considering the petition under 163-A of the MV Act, the insurer

and the owner of the motorcycle are jointly and severally liable

to pay compensation to the legal heirs of the deceased. The

Tribunal granted compensation under the following heads :

    Sr. No.                    Particulars                        Amount

       1      Annual income of the deceased                       14,400
              (1200 X 12)

       2      1/3rd deduction for personal expenses                4,800

       3      Proper multiplier applicable is 5                    9,600
                                                                    X 5

                                                                  48,000

       4      Loss of love and affection                           5,000

       5      Loss of estate                                       2,500

       6      Funeral expenses                                     2,000

                                    Total Compensation            57,500

This judgment of the Tribunal is impugned in this

appeal.

10. Smt. Naik, learned counsel for the appellant/

Insurance Company, argued on the following three aspects :

i) That the learned Tribunal was in error in not

appreciating that the risk in respect of the deceased who was a

pillion rider on the motorcycle No. MH31/X-8222 was neither

required to be covered statutorily nor was the same covered

contractually and therefore, no liability whatsoever could arise

against the appellant in respect of his death.

ii) That the learned Tribunal was in error in not

appreciating that the deceased could never be said to be a third

party vis-a-vis the respondent no.3 herein and consequently,

the claim under Section 163-A itself was not maintainable.

iii) That the learned Tribunal was in error in not

appreciating that even if, it were to be held that the vehicle in

question was insured with the appellant, the learned Tribunal

was required to proceed on the basis that it was an Act only

policy, in the absence of positive proof and evidence on behalf

of the respondent no.1 or the respondent no.2 that the policy

was a comprehensive risk policy or that it covered wider legal

liability.

In support of her submissions, she placed reliance

on the following Authorities :

1) National Insurance Company Limited Vs. Balakrishnan And Another, reported in (2013) 1 SCC 731 wherein it is held that a "comprehensive/ package policy" would cover the liability of the insurer for payment of compensation for the occupant of the vehicle.

2) Oriental Insurance Company Limited Vs. Sudhakaran K.V. and others, reported in (2008) 7 SCC 428 wherein it is held that the liability of the insurance company is not extended to a pillion rider of the motor vehicle unless the requisite amount of premium is paid for covering his/ her risk as the liability under Section 147 is strictly confined to third party risk and the pillion rider in a two wheeler was not to be treated as a third party when the accident has taken place owing to rash and negligent riding of the scooter and not on the part of the driver of another vehicle.

11. No one put in appearance on behalf of the

respondents, despite due service. On the basis of material on

record and the submissions advanced by Smt. Naik, learned

counsel for the appellant/ Insurance Company, the following

point arose for the determination of this Court :

"Whether the legal heirs of the deceased - pillion rider are entitled for compensation from the insurer, in the absence of policy document on record ?"

12. First and foremost, the death of the deceased due

to motor accident involving motorcycle which was insured with

the appellant has been clearly established by the claimants. The

same is also not seriously disputed by the learned counsel

appearing on behalf of the appellant - insurer. It is also not

disputed that the accident occurred due to the negligence of

the unknown truck driver who gave violent dash to the

motorcycle on which the deceased Ajay was riding as a pillion

rider. The only question which needs consideration in this

appeal is whether the legal heirs of the deceased - pillion rider

are entitled for compensation from the insurer, in the absence

of policy document on record.

13. In this context, the Hon'ble Apex Court, in the case

of Balakrishnan (supra), relied on by the learned Counsel for

the appellant Smt. Naik, considered the question as to whether

the "comprehensive/ package policy" would cover the liability

of the insurer for payment of compensation for the occupant in

a car or pillion rider on a motorcycle? The Hon'ble Apex Court

considered the various circulars issued by the IRDA - the

statutory authority, and held that 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 or pillion rider in case of motorcycle. The

relevant para, i.e., para 26 in the said judgment is reproduced

below:

"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 v. United Insurance Co. Ltd., (2009) 7 SCC 148 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.

14. Considering the aforesaid judgment relied on by the

learned Counsel Smt. Naik, there is no substance in her own

submission that as the deceased Ajay was pillion riding the

motorcycle, he is not a third party qua its owner. It is

worthwhile to note that neither the claimants nor the

appellant/ insurer has brought on record the Insurance Policy

in order to examine the nature of contract of the insurer with

the insured. For fixing the liability upon the Insurance

Company to pay compensation to the heirs of the pillion rider

in the accident, it is necessary to examine whether the policy is

an 'Act only policy' or 'Comprehensive policy'. The appellant/

Insurance Company, in its reply, disputed the existence of the

contract of insurance, so also the nature of the policy. The

witness, who was examined in support of the stand of the

appellant/ Insurance Company, however, admitted that the

motorcycle was insured with the appellant/ insurer. The

learned Counsel Smt. Naik submitted that the learned Tribunal

was required to proceed on the basis that it was an Act only

policy, in the absence of positive proof and evidence on behalf

of the respondents that the policy was a comprehensive risk

policy or that it covered wider legal liability. It is difficult to

concede with the submissions of learned Counsel for the

appellant. The deceased Ajay was neither the owner of the

vehicle nor the driver, and therefore, the claimants/ the parents

of the deceased were not expected to produce on record the

documents of policy. As the appellant - insurer is disputing the

nature of contract of insurance as to whether it is an Act policy

or Comprehensive policy, it is its duty to place on record the

policy document. In this context, the Hon'ble Apex Court in the

case of National Insurance Co. Ltd. New Delhi Vs. Jugal Kishore

And Others, reported in (1988) 1 SCC 626 expressed

disapproval against the conduct of the Insurance Company, and

observed that in all such cases where the Insurance Company

concerned wishes to take a defence in a claim petition that its

liability is not in excess of the statutory liability it should file a

copy of the insurance policy along with its defence. For ready

reference, the relevant para, i.e., para 10 of the said judgment

is reproduced below :

"10. Before parting with the case, we consider it necessary to refer to the attitude often adopted by the Insurance Companies, as was adopted even in this case, of not filing a copy of the policy before the Tribunal and even before the High Court in appeal. In this connection what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. This Court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. In many cases even the owner of the vehicle for reasons known to him does not choose to produce the policy or a copy thereof. We accordingly wish to emphasise that in all such cases where the Insurance Company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance

policy along with its defence. Even in the instant case had it been done so at the appropriate stage necessity of approaching this Court in civil appeal would in all probability have been avoided. Filing a copy of the policy, therefore, not only cuts short avoidable litigation but also helps the Court in doing justice between the parties. The obligation on the part of the State or its instrumentalities to act fairly can never be over-emphasised."

15. The ratio as laid down in the case of Jugal Kishore

(supra) has further been referred to by the High Court of

Judicature At Patna, Ranchi Bench in the case of Dilip Kumar

Saha Vs. Runnu Sarkar and another, reported in 1995 ACJ 353,

wherein in para 6, it has been held as under :

"6. On hearing the rival contentions, I am constrained to observe that in this case the insurance company is trying to defeat the claim of an insured policy holder by pleading procedural technicalities and withholding the primary document like the insurance policy and thereby dragging genuine claimants into prolonged, unwarranted and multiple litigation. It seems that the officers functioning the insurance companies have taken the frivolous litigations as a part of their official duties and they seem to be deriving some pleasure in adopting such process, causing harassment and inconvenience to public having least care about wasteful expenditures of public money involved in such litigations and wastage of court hours which needs to be

consumed in more fruitful pursuits. In recent times this tendency of the insurance companies has been repeatedly deprecated by several High Courts as also the Supreme Court as is evident from the observation of the Apex Court in the case of National Insurance Co. Ltd. v. Jugal Kishore, 1988 ACJ 270 (SC) XXXX"

16. Now, the question before this Court is whether at

this stage, the appellant would be permitted to place on record

the policy by way of an additional evidence? Considering the

nature of issue involved in this case, the production of policy is

essential to decide the real controversy between the parties.

Had it been produced, this Court would have remanded the

case back to the Tribunal to examine the policy by way of

additional evidence and decide the liability. However, during

hearing, the learned counsel Smt. Naik appearing on behalf of

the appellant expressed error on the part of the Insurance

Company for not producing the same during trial and showed

its inability to produce the same on record. It is the stand of

the claimants before the Tribunal that in order to avoid the

liability to pay compensation, the policy has not been placed on

record by the appellant - Insurance Company. The nature of

policy was the specific defence of the Insurance Company

before the Tribunal. It was incumbent upon the Insurance

Company to place the same on record. As held by the Hon'ble

Apex Court in the case of Jugal Kishore (supra) where the

Insurance Company wishes to take a defence that its liability is

not in excess of the statutory liability, it should file a copy of

the Insurance Policy along with its defence. The appellant -

Insurance Company has failed to bring on record the Insurance

Policy of the motorcycle. Consequently, I am constrained to

draw an adverse inference against the appellant and that the

appellant is to be held liable to pay compensation to the

claimants, especially, the quantum awarded by the Tribunal is

Rs.57,500/- only to the aged parents of the deceased Ajay.

17. In these circumstances, so also in view of the ratio

laid down by the Hon'ble Apex Court in the case of

Balakrishnan (supra) so also in the case of Jugal Kishore

(supra), I answer the question in favour of the claimants, and

therefore, no interference is warranted in the impugned

judgment, even though the same was delivered on somewhat

different footing. Resultantly, the appeal needs to be dismissed,

and the same is accordingly dismissed with costs.

JUDGE **** Sumit