United India Insurance Co. Ltd vs Smti Gitimoni Gogoi And 4 Ors
2022 Latest Caselaw 4468 Gua

                                                                Page No.# 1/7

GAHC010005102013




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : MACApp./87/2013

         UNITED INDIA INSURANCE CO. LTD.,
         A COMPANY REGISTERED AND INCORPORATED UNDER THE COMPANIES
         ACT, 1956 AND HAVING ITS HEAD OFFICE AT 24 WHITES ROAD, MADRAS
         AND A REGIONAL OFFICE AT DISPUR, GUWAHATI 5 BEING REPRESENTED
         BY ITS CHIEF REGIONAL MANAGER.



         VERSUS

         SMTI GITIMONI GOGOI and 4 ORS,
         W/O LATE PUTUL GOGOI @ CHANDRA GOGOI, R/O BAHANIPATHER, P.O.
         KHOWANG, DIST. DIBRUGARH, ASSAM, PIN 785675

         2:BHUBAN CHANGMAI

          S/O SRI GERENG CHANGMAI
          R/O RANIPATHER
          P.S MORAN
          DIST. DIBRUGARH ASSAM
          PIN 785669

         3:JIBAN HAZARIKA

          S/O SHRI PUNARAM HAZARIKA
          C/O M.P. SAHU
          KUSHAL NAGAR
          P.S. MORAN
          DIST DIBRUGARH
          ASSAM
          PIN 785669

         4:JINTU CHETIA
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             C/O SHRI NUMAL CHETIA
             VILL.KARDAIGURI VIA KHOWANG
             PO. KOTHALGURI
             DIST. DIBRUGARH
             ASSAM
             PIN 785670

            5:THE NEW INDIA ASSURANCE CO. LTD.

             R.K. BORDOLOI PATH
             DIBRUGARH
             PIN 78600

Advocate for the Petitioner   : MR.S DUTTA

Advocate for the Respondent : MR A SAIKIA




                                   BEFORE
                  HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

                                         ORDER

15.11.2022

1. Heard Ms. I. Das, learned counsel for the appellant - United India Insurance Company Limited. Also heard Shri D. Baruah, learned counsel appearing on behalf of the respondent - claimant.

2. As regard the service upon the respondents, there was a paper publication in terms of an order of this Court which was made and supported by an affidavit as reflected in the Office Note dated 15.03.2018.

3. The present appeal has been preferred under Section 173 of the Motor Vehicles Act, 1988 against the judgment and award dated 29.11.2012 passed by the learned MACT, Dibrugarh in MAC Case No. 95/2005. By the impugned judgment, a sum of Rs. 5,04,320/- (Rupees Five Lakh Four Thousand Three Page No.# 3/7

Hundred Twenty) has been directed to be paid with simple interest at the rate of 6 % per annum with effect from date of filing of the claim petition, i.e., 14.09.2005. The liability has been divided amongst the present appellant and the driver and owner of another offending vehicle namely a truck.

4. Before dealing with the grounds of appeal, the bare facts are required to be noted which are as follows.

5. The claimant is the widow of the deceased Putul Gogoi, who was a Grade

-IV employee of Bahanipather M.V. School in the district of Dibrugarh. On 21.02.2003, the deceased was coming in a Motor Cycle as a pillion rider which had dashed with a truck bearing No. ARD-136 causing grievous injuries as a result of which he had succumbed. The claim petition was accordingly filed before the learned Tribunal seeking compensation.

6. While the claimant in support of her claim petition had adduced evidence as claimant witness and had adduced four numbers of documents namely the Death Certificate, the PM Report, the Salary Certificate and the Police Report, the O.P. No. 1 namely, New India Assurance Company Limited i.e., the Insurance Company of the truck had filed written statement and had adduced evidence and had exhibited two documents. The O.P. party nos. 2 & 3 had filed written statement but did not cross examine or adduce any evidence. It is the case of the present appellant that it was impleaded at a later stage whereafter, it had filed the written statement. The materials before this Court would show that the Charge Sheet was filed in the connected police case being Moran P.S. Case No. 26/2003 under Section 279, 338,304A and 427 of the IPC against the Page No.# 4/7

driver of the Truck. However, the opposite party no. 1 namely, the New India Assurance Company Limited had a categorical stand that as on the date of the accident, there was no valid insurance cover of the truck and therefore, it was not liable and in this regard, the Insurance Policy was also exhibited.

7. Ms. Das, the learned counsel for the appellant has argued that the liability in the criminal case being towards the truck, the appellant - Insurance Company who was the insurer of the Motor Cycle should not have been settled with any liability as the cause of accident was because of the negligence of the truck. The learned counsel has further submitted that apart from the fact that the appellant is not liable to pay any compensation, the further fact which is required to be considered is that the appellant was not even made a party in the claim petition and was impleaded at a later stage and therefore, the direction to pay interest from the date of filing is otherwise erroneous and would be unnecessarily onerous.

8. Ms. Das, the learned counsel accordingly submits that due interference should be made by this Court in exercise of its appellate powers by holding that the appellant is not liable to pay the compensation or any part thereof.

9. On the other hand, Shri D. Baruah, learned counsel for the contesting claimant has submitted that the amount in question is not a huge amount considering that the same is awarded in a death case of a Government Employee who was working in an M.V. School.

10. The learned counsel has submitted that the grounds taken in the present Page No.# 5/7

appeal are not tenable legally. Shri Baruah, the learned counsel has specifically argued that the deceased was a pillion rider and not a third party is not a correct ground and in view of the Insurance Policy covered in the Motor Cycle in question. The learned counsel submits that the Insurance Policy in question of the Motor Cycle was a Package Policy in which a pillion rider is regarded as a third party. In support of his submission, the learned counsel has relied upon a decision reported in [2013) 1 SCC 731 [National Insurance Co. Ltd vs. Balakrishnan & Anr.].

11. Ms. Das, the learned counsel for the appellant while referring to the observation of the learned Tribunal in the impugned judgment that the pillion rider of the Motor Cycle who died was not a third party has fairly submitted that the said observation may not be correct in view of the fact that the policy governing the Motor Cycle was a Package Policy. The learned counsel has also submitted that though the policy was not exhibited before the learned Tribunal, by placing a copy of the same before this Court, the learned counsel has submitted that there is no manner of doubt that the policy in question was a Package Policy. The learned counsel further submits that in view of the law settled by the Hon'ble Supreme Court in the case of Balakrishnan (supra) she would not like to join issue on this point.

12. The learned Tribunal had framed the following issues for determination.

1. Whether there is cause of action?

2. Whether the claim petition is maintainable?

3. Whether the claimant is entitled to get compensation and if so, from whom and to what extent?

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13. Issue no. 3 is the relevant issue which is required to be considered in this Appeal. There is no manner of doubt that the accident had involved two vehicles namely a Motor Cycle in which the deceased was a pillion rider and one truck which unfortunately did not have a valid Insurance Cover.

14. Though, as stated above, the Insurance Policy of the Motor Cycle was not exhibited before the Tribunal, there is no manner of doubt to which the parties are also in agreement that the policy covering the Motor Cycle was a Package Policy.

15. The Hon'ble Supreme Court in the case of Balakrishnan (supra) while interpreting the law relating to this aspect has laid down as follows:

"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 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."

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16. Ms. Das, the learned counsel for the appellant has strenuously argued that when there was no negligence proved on the part of the driver of the Motor Cycle leading to the accident, the question of saddling an Insurance Company of the Motor Cycle should not arise.

17. Though negligence of the driver of the Motor Cycle has not been specifically proved, taking into consideration the nature of the policy and the fact that the amount of the award is a reasonable one that too in a death case, this Court would not like to interfere with the award on that point.

18. Accordingly, the present appeal is disposed of by upholding the award dated 29.11.2012 passed by the learned MACT, Dibrugarh. This Court has been informed that till now nothing has been released to the claimant in spite of the fact that the accident was of the year 2003 and almost two decades have passed.

19. Consequently, the compensation amount as awarded by the Tribunal is required to be released without any further delay and within an outer limit of 45 days from today. The payment may be made in the Tribunal which is to be released to the claimant on proper identification.

20. It is needless to state that the statutory deposit of Rs. 25,000/- be refunded to the appellant within a period of 45 days from today.

JUDGE

Comparing Assistant