MACApp./30/2013
2023 Latest Caselaw 315 Gua

                                                                         Page No.# 1/11

GAHC010003752013




                     THE GAUHATI HIGH COURT AT GUWAHATI
         (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)

                           PRINCIPAL SEAT AT GUWAHATI


                                MAC Appeal No. 30 of 2013


           SRI DUGDHA RABHA,
           S/O SRI BABU RAM RABHA,
           VILL-MANDALGRAM,P.O & P.S.- DUDHNOI,
           DISTRICT-GOALPARA, ASSAM.

                                                  .................Appellant


                     -Versus-




          1.       M/S NATIONAL INSURANCE COMPANY LTD.,
                   REGIONAL OFFICE, G.S. ROAD, BHANGAGARH, GUWAHATI-05, KAMRUP,
                   ASSAM TO BE REPRESENTED BY ITS REGIONAL MANAGER.
                   (INSURER OF VEHICLE NO. AS-18/7031)


          2:       SRI ANIL RABHA, S/O SRI MAHANDRA RABHA,
                   VILL. LELA PUKHURIPARA
                   P.O. and PS. DUDHNOI,
                   DIST. GOALPARA
                   ASSAM .
                   (DRIVER OF VEHICLE NO. AS-18/7031)
                                                                   Page No.# 2/11

             3.     SMTI. KUMPHOLI RABHA,
                    W/O LATE KILU RABHA,
                    VILL. MANDALGRAM,
                    P.O. and P.S. DUDHNOI,
                    DIST. GOALPARA,
                    ASSAM.


             4.    MISS PURABI RABHA,
                   D/O LATE KILU RABHA,
                    VILL. MANDALGRAM,
                    P.O. and P.S. DUDHNOI
                    DIST. GOALPARA,ASSAM.
             5.     SRI CHIRANJEEV RABHA,
                    S/O LATE KILU RABHA,
                    VILL. MANDALGRAM,
                    P.O. and P.S. DUDHNOI
                    DIST. GOALPARA, ASSAM.


             6.     RAKESH RABHA,
                    S/O LATE KILU RABHA,
                     VILL. MANDALGRAM,
                     P.O. and P.S. DUDHNOI,
                     DIST. GOALPARA
                     ASSAM.


             7.     SMTI. MONIBALA RABHA,
                    W/O LATE HARAKANTA RABHA,
                    VILL. MANDALGRAM,
                    P.O. and P.S. DUDHNOI,
                    DIST. GOALPARA, ASSAM.


                                                         ................Respondents.

Advocates for the appellant     :     Mr K K Dutta,
Advocate for the respondents    :     Mr R K Bhatra,
                                      Mr A Singha Roy.
                                                                                Page No.# 3/11

                                          BEFORE
                       HON'BLE MRS. JUSTICE MALASRI NANDI


 Date of Judgment       :        27.01.2023



                            JUDGEMENT AND ORDER (ORAL)

Heard Mr K K Dutta, learned counsel appearing for the appellant and Mr R K Bhatra,

learned counsel for the respondent/Insurance Company. Also heard Mr A Singha Roy, learned

counsel for the respondent/claimant.

2. The appellant in this case is the owner of the offending vehicle, who has preferred this

appeal under Section 173 of the MV Act, 1988, challenging the Judgment and Order dated

06.05.2009, passed by the learned Member, MACT, Kamrup, in MAC Case No. 2634 of 2005.

3. The brief facts of the case is that on 28.10.2005, the deceased was travelling on a bus,

bearing Registration No. AS-18-7031, as a handyman from Guwahati to Goalpara. When the

bus reached near Farm Gate under Azara Police Station, he fell down from the bus and

sustained grievous injuries on his head, as a result of which, he died on the spot. The Post-

Mortem Examination was conducted in the Gauhati Medical College and Hospital. The

deceased was the sole earning member of his family, consisting of his wife, four minor

children and old aged mother. After the accident, one case was registered vide Azara PS Case

No. 136/2005, under Sections 279/304-A IPC. It is stated in the claim petition that at the

relevant time of accident, the alleged vehicle was duly insured with the National Insurance

Company Limited.

4. Subsequently, Smt. Kumpholi Rabha, wife of the deceased filed a case before the MACT, Page No.# 4/11

Kamrup, claiming compensation for the death of her husband. Accordingly, a case was

registered vide MAC Case No. 2634/2005. After completion of trial, learned Tribunal vide

Judgment and Award dated 06.05.2009, awarded compensation amounting to Rs. 4,68,000/-

(Rupees Four Lacs and Sixty Eight Thousand) only, with interest @ 6% per annum, from the

date of filing of the claim petition till payment, in favour of the respondent No. 3/claimant,

with a direction to the present appellant/owner of the vehicle to pay the compensation.

5. Being highly aggrieved and dissatisfied with the Judgment and Award as aforesaid, the

appellant has filed this appeal.

6. It is submitted by the learned counsel for the appellant that in his written statement,

the present appellant as owner of the vehicle , bearing Registration No. AS-18-7031, clearly

submitted that the said vehicle was duly insured with the National Insurance Company

Limited, at the relevant time of accident. But these aspects were not considered by the

learned Tribunal, while passing the impugned judgment.

7. It is further submitted by the learned counsel for the appellant that since deceased was

a handyman and employee of offending vehicle, the Insurance Company cannot avoid liability

as admittedly, under the policy risk of two employees, besides driver was covered, as such,

there was no question for fixing the responsibility to satisfy the Award with the owner of the

vehicle. It is further submitted that though the Insurance Company took the plea that the

appellant put his signature on the proposal form, in fact, the signature in the declaration by

the insured was not proved and the signature found in the proposal form is not the signature

of the appellant. Hence, the impugned Judgment and Award is not sustainable in law and

liable to be set aside.

Page No.# 5/11

8. In support of his submission, learned counsel has placed reliance on the following

caselaw:-

2018 (3) TAC 709 (Gauhati); (Khudeja Khatun & Ors. Vs. Bajaj Allianz General Insurance

Company Limited & Another)

9. On the other hand, learned counsel for the Insurance Company has submitted that the

deceased was a handyman and the policy was issued for 2 (two) persons, driver and

conductor, by paying the premium of Rs. 50/-. There is nothing to show that the appellant

had paid any additional premium to cover the risk of injury to a handyman. There is no

payment of premium for a handyman. As such, the Insurance Company is not liable to pay

any compensation in favour of the claimant. In support of his submission, learned counsel for

the Insurance Company cited the following caselaws:-

1) (2002) 2 SCC 278; (New India Assurance Co. Ltd. vs- C.M. Jaya & Others)

2) (2003) 10 SCC 664; (Ramashray Singh vs. New India Assurance Co. Ltd. & Ors.)

10. I have considered the submissions of the learned counsel for the parties. I have gone

through the Judgment of the trial Court as well as the documents available on record.

11. In the case in hand, the factum of accident, the age of the deceased, the income of the

deceased have not been challenged. The only question raised by the learned counsel for the

Insurance Company is that as the policy was the package policy, covering risk of only two

employees, i.e., driver and conductor and the deceased being a handyman of the vehicle is

not the employee of the owner. As such, Insurance Company is not liable to pay any

compensation.

12. Before the Tribunal, during trial, the appellant, i.e., owner of the vehicle, bearing Page No.# 6/11

Registration No. AS-18-7031, has submitted written statement, wherein he had admitted that

the vehicle involved in the accident was a bus and he is the owner of the said bus. He

authorized respondent No. 2, Sri Anil Rabha to drive his vehicle and the vehicle was duly

insured with National Insurance Company Limited vide Policy No. 200600/31/04/630001661,

valid upto 2.12.2005. The deceased was the handyman of his vehicle and died in the course

of his employment and he was paid Rs. 3,500/- per month as his salary.

13. The Insurance Company has also submitted written statement before the Tribunal,

wherein it is specifically stated that the claim petition was not maintainable under Section 166

of the MV Act, as no premium was paid by the owner of the vehicle for covering the risk of

handyman of a public service vehicle under the policy of Insurance, issued by the Insurance

Company to the owner. It is a well settled position of law that as per Section 147 of the MV

Act, a policy of insurance is not required to cover the risk of a handyman of a public service

vehicle automatically, unless extra premium is paid by the insured/owner of the vehicle to the

insurer.

14. One witness was examined by the Insurance Company as DW-1. He deposed in his

evidence that the vehicle, bearing Registration No. AS-18-7031 (bus) was insured by the

National Insurance Company Limited under the passenger carrying, commercial package

Policy vide No. 200600/31/04/630001661, for the period from 03.12.2004 to 02.12.2005,

against the payment of total premium of Rs. 23,837/-. The owner of the vehicle had paid Rs.

1860/-, covering the basic third party risk, Rs. 6624/- against the 48 numbers of passengers

and had specifically paid premium of Rs. 50/- covering the risk of two of his employees,

engaged in the vehicle. The said two employees are the driver and the conductor of the

insured bus, inasmuch as, the premium was paid for the driver and the conductor only.

Page No.# 7/11

Therefore, there is neither any statutory obligation nor any contractual obligation of the

Insurance Company as the insurer of the vehicle No. AS-18-7031 to compensate the owner of

the vehicle for any death or bodily injury of the handyman of a bus, which is a public service

vehicle. The Insurer of the vehicle No. AS-18-7031 is not liable either under the MV Act, nor

under any contractual provision to indemnify the owner for the injuries received by the

handyman of the vehicle.

15. In his cross-examination, DW-1 replied that in the policy it is only mentioned that extra

premium has been paid for two employees. However, nothing has been mentioned, as to who

are these two employees. There is nothing in the Insurance Policy that only the risk of driver

and conductor was covered. DW-1 also admitted that signature of the proposer was not taken

in his presence. The proposal form was signed by the proposer on 03.12.2002. No fresh

proposal form was obtained, when policy was issued afresh for period 03.12.2004 to

02.12.2005. There is also no undertaking by the proposer that the policy for the aforesaid

period was issued on the same terms and conditions of the proposal form of 03.12.2002.

16. According to the appellant, i.e. owner of the vehicle, he did not put any signature in the

proposal form when it was renewed, wherein it was specifically stated that the risk was

covered for the driver and conductor of the vehicle. But DW-1 in his cross-examination clearly

admitted that in the policy it is only mentioned that extra-premium has been paid for two

employees and nothing has been mentioned, as to who are these two employees. The

appellant specifically stated that the deceased was working as a handyman in his vehicle. The

owner paid premium for two employees of his vehicle. If there is nothing in the insurance

policy that only the risk of driver and conductor are covered, it can be presumed that the

owner had paid the premium for his handyman, being the employee of his vehicle. Under Page No.# 8/11

such backdrop, the Insurance Company is liable to pay compensation.

17. In the case of National Insurance Company Limited vs. Balakrishnan; (2008) 5 SCC 736,

the Hon'ble Supreme Court had an occasion to examine the difference between act policy and

comprehensive/package policy, wherein, the respondent/claimant, being the Managing

Director of the respondent/company, met with an accident while travelling in a motor vehicle,

belonging to a Company. It was contended before the Supreme Court by the

appellant/insurer that even assuming respondent not to be the owner and the non-fare

paying passenger, he would not be covered under the policy, wherein the Supreme Court held

that the owner of the insured vehicle is not entitled to compensation under the provisions of

Section 147 of the MV Act. The Supreme Court held as under:-

"It is extremely important to note here that till 31.12.2006, the Tariff Advisory

Committee and thereafter, from 01.01.2007, 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 Company in respect of an occupant in a private car under the

comprehensive/package policy before the High Court, the competent authority of IRDA stated

that on 02.06.1986, the Tariff Advisory Committee had issued instructions to all the Insurance

Companies to cover the pillion driver of a scooter/motor cycle under the comprehensive policy

and the said position continues to be in vogue till date.

It had also submitted that the "comprehensive policy" is presently called a

"package policy". It is the admitted position as the decision would show, the earlier Page No.# 9/11

circulars dated 18.03.1978 and 02.06.1986 continued to be valid and effective and

all insurance companies are bound to pay the compensation in respect of the

liability towards the occupant in a car under the comprehensive/package policy,

irrespective of the terms & conditions contained in the policy. The competent

authority of the IRDA was also examined before the High Court, who stated that

the circulars 18.03.1978 and 02.06.1986 of the Tariff Advisory Committee were

incorporated in the Indian Motor Tariff effective from 01.07.2002 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 03.12.2009, that have been

reproduced hereinabove were issued.

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 the

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 a

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."

18. The provisions of Section 146 obligates the owner of the motor vehicle to take

insurance for use of the vehicle on the road. Section 147 of the MV Act requires an insurance Page No.# 10/11

company to cover the liability incurred by the insured in respect of death or bodily injury to

any person (including an owner of the goods or his authorized representative) carried in the

vehicle or any property, caused by the use of the vehicle. The purpose of the policy is to

indemnify the insured against liabilities incurred towards other persons (a third party) in

respect of the damages caused to him and the property.

19. In Balakrishnan & Anr. (supra) the issue involved was, as to whether Insurance

Company is liable in respect of an occupant in a private car under the

"comprehensive/package policy", wherein the Supreme Court referring to the instructions of

the Tariff Advisory Committee issued to all the Insurance Companies to cover the pillion driver

of a scooter/motor cycle under the comprehensive/package policy, held that under

"comprehensive/package policy" all the occupants, namely, pillion rider of a scooter/motor

cycle and/or an occupant of a car being a gratuitous passenger or a non-fare occupant are

covered under the policy.

20. In the case in hand, the deceased was the handyman of the motor vehicle and the

compensation was claimed by his wife, sons, daughter and mother. Admittedly, the deceased

was travelling in the vehicle as handyman or otherwise as a non-paying passenger. In such a

scenario, the ratio laid down in Balakrishnan (supra) is applicable to the fact of the present

case.

21. No other point has been raised at the time of hearing of the appeal.

22. In the result, the appeal is allowed to the extent of paying the compensation to the

claimant, by the Insurance Company, instead of the appellant/owner of the vehicle.

23. Insurance Company is directed to discharge the liability for payment of compensation to Page No.# 11/11

the claimant, as per order of the Tribunal dated 06.05.2009.

24. Send down the LCR.

25. Statutory amount in deposit, if any, be refunded to the appellant.

                                                           JUDGE      JUDGE



Comparing Assistant