Gujarat High Court

Mustak Sakur Sumara vs Attaulla Sidik Sama on 31 January, 2024

Author: Gita Gopi

Bench: Gita Gopi

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     C/FA/3818/2023                               JUDGMENT DATED: 31/01/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 3818 of 2023


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

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1    Whether Reporters of Local Papers may be allowed                    No
     to see the judgment ?

2    To be referred to the Reporter or not ?                             No

3    Whether their Lordships wish to see the fair copy                   No
     of the judgment ?

4    Whether this case involves a substantial question                   No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                          MUSTAK SAKUR SUMARA
                                 Versus
                           ATTAULLA SIDIK SAMA
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
RULE SERVED for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 1,2
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 31/01/2024

                             ORAL JUDGMENT

1. The challenge by the injured claimant is

to the judgment dated 03.03.2022 by the Motor

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Accident Claims Tribunal (Auxi.), Bhuj-Kachchh.

2. Mr. Nishit A.Bhalodi, learned advocate

for the injured claimant submitted that the Court

though had observed in the impugned judgment that

the policy was a package/comprehensive policy

covering the risk of the pillion rider, which was

supported by the communication/letter produced by

the Divisional Manager of the insurance company

dated 26.08.2021 at Exh.51 and 52, has failed to

justify the same.

2.1 Advocate Mr. Bhalodi stated that no

further evidence would be requires, and, thus,

stated that probably that is the reason that

though served no Advocate from the panel has

preferred to appear, in the present appeal.

3. The record shows that the notice was

served to the insurance company on 10.10.2023,

and thereafter had come up on Board on numerous

occasions, but none has filed appearance for the

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insurance company.

4. By way of the operative order, the

Tribunal has granted compensation of

Rs.6,60,700/- to be recovered from opponent nos.1

and 2 jointly and severely at the rate of 9%;

while the insurance company - opponent no.3 was

exonerated from the liability to pay the

compensation to the claimant.

4.1 The insurance company had filed the

written arguments at Exh.47 before the Tribunal,

and it was contended that the owner of the

vehicle had not paid any premium to cover the

risk of the pillion rider, and further the policy

of the motorcycle was "act only", and, therefore

the insurance company was not liable to pay the

compensation to the claimant, who was pillion

rider on the motorcycle. The learned Tribunal has

referred to the application, Exh.46, filed by the

claimant, where it was prayed to the insurance

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company to clarify, whether the insurance policy

of the motorcycle was 'act only policy' or

comprehensive. Thereafter, as per the record, the

learned advocate for the insurance company

produced the letter dated 26.08.2021 addressed to

Divisional Manager of the insurance company vide

Exh.51 and 52 seeking clarification about the

nature of policy, and also further clarification

whether the risk of pillion rider gets covered in

the policy or not?

5. The Tribunal on consideration of the

letter, Exh.51 and 52, has reckoned that in the

bottom of the said letter, the officer of the

company had made an endorsement that the policy

of motorcycle is package/comprehensive policy and

covered risk of pillion rider, and insurance

company also had sent terms and conditions of

policy with the said endorsement, to the learned

advocate of the insurance company. The learned

Tribunal doubted Exh.51 and 52 only on the ground

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that the endorsement on the letter about the

nature of policy being package or comprehensive

policy does not bear the name and details of the

officer, who had made the endorsement, and

further it weighed in the mind of the Tribunal

that the insurance company has not produced

certified copy of the insurance policy vide mark

50/1, and the terms and conditions of the

insurance policy was not on record.

5.1 In that circumstance, the Tribunal

merely on the basis of endorsement made by the

office of the insurance company on the bottom of

the letter addressed by learned advocate of the

insurance company, was wary to believe that the

insurance policy of the motorcycle as

package/comprehensive, and, therefore the

Tribunal concluded that, it cannot held liable

the insurance company to pay the compensation to

the claimant.

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6. The insurance policy on record, Exh.36,

suggested that it was two wheeler certificate-

cum-policy schedule. The Court thereupon has

referred that the premium are recovered, and had

concluded that the insurance company had not

taken extra or additional premium to cover the

risk of pillion rider. The clarification was

required to be brought on record by the insurance

company by examining the officer of the insurance

company, and when a communication has been

produced by way of letter addressed to the

Divisional Manager of National Insurance Company

Ltd., which bears the endorsement of having

'received', and further the communication on the

very same document with the seal and signature

with date of the concerned officer, and when the

document has been produced by the Advocate of the

insurance company, the Court ought not to have

doubted the document. In absence of any

examination of the witness from the insurance

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company, the document Exh.51 and 52, would

prevail, and the endorsement contained therein

would be self explanatory to come to the

conclusion that the risk of the pillion rider

gets covered in the policy.

7. The endorsement of the officer could be

relied upon even by following the judgment of

National Insurance Company Ltd. Vs. Balakrishnan

And Anr., reported in (2013) 1 SCC 731, where it

was found on record that if the policy is

comprehensive/package policy, then it would cover

the third party risk of the occupant, as IRDA has

clarified the position by issuing the Circulars

dated 16.11.2009 and 03.12.2009. Therefore,

comprehensive/package policy would cover the

liability of the insurer for the payment of

compensation to the occupants. The circular for

comprehensive/package policy would consider the

occupant of the vehicle as a third party. In the

referred Balkrishnan case, the matter was

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remitted to the Tribunal to scrutinize the policy

in proper prospective, and if necessary, it was

directed to take additional evidence; and it was

observed that if the conclusion is arrived at

that the policy in question is

comprehensive/package policy, the liability would

be fastened on the insurer.

7.1 Here, in the present matter, the

clarification had come by way of Exh.51 and 52,

which was placed by the learned advocate of the

insurance company that the policy of the

motorcycle is package/comprehensive policy,

hence, in terms of the circular of IRDA, the risk

of pillion rider would be covered.

7.2 The relevant observation of the Apex

Court is at para-26, which reads as under:

"26. In view of the aforesaid factual position, there is no scintilla of doubt that a

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"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 (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

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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."

8. Learned advocate Mr. Bhalodi submitted

that the claimant had also raised a ground for

enhancement of the compensation amount, but

stated that when the insurance company has not

appointed an advocate from the panel to defend

the appeal, at the instructions of the claimant,

Mr. Bhalodi, thus, waives other grounds raised,

and state that claimant is satisfied with the

compensation amount ordered by the Tribunal.

9. In the result, the operative order of

paragraph nos.2 and 3 dated 03.03.2022 passed in

MACP No.146 of 2018, be modified with direction