Jharkhand High Court
Surendra Nath Sahay vs Smt. Chanchal Lata Devi on 2 August, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No.187 of 2010
------
1. Surendra Nath Sahay
2. Sunil Kumar Sahay .... .... .... Appellants
Versus
1. Smt. Chanchal Lata Devi
2. Nagmani Kumar
3. Chandramani Kumar
4. Smt. Siyawati Devi
5. New India Assurance Co. Ltd., Giridih .... .... .... Respondents
WITH
M.A. No.186 of 2010
------
1. Surendra Nath Sahay
2. Sunil Kumar Sahay .... .... .... Appellants
Versus
1. Anil Kumar Varshney
2. New India Assurance Co. Ltd. .... .... .... Respondents
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
For the Appellants : Mr. Bibhash Sinha, Advocate
For the Respondents : Mr. Manish Kumar, Advocate
Mr. Arvind Kumar Lall, Advocate
C.A.V. ON: 06.04.2022 PRONOUNCED ON: 02.08.2022
1. Both these appeals have been preferred by the owner and driver of the
offending vehicle against the award of compensation in Claim Case No.46 of
2002 and Claim Case No.06 of 2002 in which the liability to pay the
compensation amount has been fixed on the appellants. They arise out of the same
accident and have been heard together and disposed of by the common judgment.
2. On 27.04.2001, the deceased-Digvijay Singh along with his friends were
going from Giridih to Ranchi in Ambassador car bearing registration number
BHR - 966 which met with an accident when it dashed against a tree. Digvijay
Singh sustained fatal injuries and died during course of his treatment.
3. Indisputably the offending vehicle was under the insurance cover of O.P.
No.5 at the relevant time of accident. The learned Tribunal held that it was an act
only policy and not a comprehensive policy and therefore the Insurance Company
was not liable to pay the compensation amount and it was the owner and driver
who were liable to pay the same. It has dealt at length different judgments and
held that in case of act only policy, the Insurance Company was not liable as the
deceased was travelling as gratuitous passenger.
4. Factum of accident and death of the deceased in the motor vehicle accident
caused due to rash and negligent driving by its driver is not in dispute.
5. Short question that falls for consideration is whether the owner or insurer
shall be liable to pay the compensation amount?
6. In order to answer this question, it will be necessary to look into the policy
of insurance which has been adduced into evidence and marked as Exhibit 3
which is an act only policy and as per Exhibit E, the liability was limited to third
party and to the driver of the vehicle. The matter for consideration is whether the
occupants of the vehicle will come within the meaning of occupant or not. The
New India Assurance Company Ltd. was impleaded as O.P. No.5 before the
learned Tribunal. The Insurance Company appeared and filed a 27 paragraph
written statement wherein there is an evasive and general denial of all the
averments made in the claim application.
7. The appellant has relied on the decision of the High Court of Gujarat at
Ahmedabad in Hemendrasinh Mansinh Jadav Versus Sanjaybhai Govindbhai
Dabhi & Others; 2019 ACJ 600 wherein it has been held that Insurance Company
is liable to compensate occupant of private vehicle irrespective of nature of policy.
The third party insurance coverage does not cover injuries to the insured itself but
to the rest of the world who is injured by the insured.
8. Law is settled by Hon'ble the Apex Court that a comprehensive policy
stands on a different footing than Act policy. While in the case of former the
policy covers the occupant but in the later it does not. It has been held in Jagtar
Singh v. Sanjeev Kumar, (2018) 15 SCC 189 in which it has been reiterated that
act only policy does not cover the risk of the occupants of vehicle. Their lordships
followed National Insurance Co. Ltd. v. Balakrishnan [National Insurance Co.
Ltd. v. Balakrishnan, (2013) 1 SCC 731 : (2013) 1 SCC (Civ) 771 : (2013) 1 SCC
(Cri) 677] , wherein the Court has held thus: (SCC pp. 743-44, paras 24-26)
"27. In view of the aforesaid, it is clear that the comprehensive/package policy of a two-wheeler
covers a pillion rider and comprehensive/package policy of a private car covers the occupants
and where the vehicle is covered under a comprehensive/package policy, there is no need for the
Motor Accidents Claims Tribunal to go into the question whether the insurance company is
liable to compensate for the death or injury of a pillion rider on a two-wheeler or the occupants
in a private car. In fact, in view of the TAC's directives and those of IRDA, such a plea was not
permissible and ought not to have been raised as, for instance, it was done in the present case.'
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.
9. Under the circumstance, in view of the fact that the insurance policy was act
only therefore, the occupants of the vehicle were not covered under the policy. I
do not find any infirmity in the Judgment of the Court below on this count.
However, since the vehicle was ensured therefore, the Insurance Company is
directed to pay the compensation amount and it will be at liberty to recover the
amount so paid from the owner of the vehicle.
Both the appeals are accordingly dismissed.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated the 2nd August, 2022
AFR / Anit
