Rita Das vs Raj Kishore Choudhari Son Of Bhim ...
2022 Latest Caselaw 1873 Jhar

                    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                     M.A. No.622 of 2016
                                               ----

1. Rita Das W/o Late Rasbihari Das, Resident of Village Tilabad, P.O. Latehar, P.S. Maslia, District Dumka.

2. Rohit Das son of Late Rasbihari Das, Minor represented through his natural mother and guardian Rita Das, resident of Village Tilabad, P.O. Latehar, P.S. Maslia, District Dumka.

                                                          ...       Appellant
                                            -versus-

1. Raj Kishore Choudhari son of Bhim Choudhary, Resident of Village Bhatudih, P.O. and P.S. Kundahit, District Jamtara.

2. New India Assurance Co. Ltd., Branch Office at Andheri West, Mumbai, having its branch office at VIP Chowk, Deoghar, P.O. and P.S. Deoghar, District Deoghar.

3. Gouribala Dasi W/o Late Madhusudan Das, Resident of Village Tilabad, P.O. Latehar, P.S. Maslia, District Dumka.

... Respondents WITH M.A. No.34 of 2016

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Branch Manager, New India Assurance Co. Ltd., Branch Office at Andheri West Mumbai having its Branch Office at VIP Chowk, P.O., P.S. & District Deoghar.

... Appellant

-versus-

1. Rita Das wife of Late Rashbihari Das

2. Rohit Das son of Late Rashbihari Das

3. Gauri Bala Dasi wife of Late Madhu Sudan Das (Respondent No.2 being minor is being represented through his mother natural guardian as his next friend) All residing at Village Tilabad, P.O. Latabar, P.S. Masila, District Dumka.

4. Rajkishore Choudhari son of Bhim Choudhri permanent resident of and presently residing at Village Batudih, P.O. Dhasaniya, P.S. Kunahit Sub division & District Jamtara (Owner-Driver).

... Respondents

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CORAM : HON'BLE MR. JUSTICE ANANDA SEN

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For the Appellants: Mr. Bibhash Sinha, Advocate Mr. Durga Charan Mishra, Advocate [in M.A. No.622 of 2016] Mr. Alok Lal, Advocate [in M.A. No.34 of 2016] For the Respondents: Mr. Alok Lal, Advocate Mr. Arvind Kumar Lall, Advocate [in M.A. No.622 of 2016] Mr. Bibhash Sinha, Advocate Mr. Durga Charan Mishra, Advocate Mr. Arvind Kumar Lall, Advocate [in M.A. No.34 of 2016]

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10/ 09.05.2022 Heard counsel for the parties in both these cases. Counsel for the owner of the vehicle is also present

2. M.A. No.622 of 2016 has been filed by the claimants, praying for enhancement of the compensation amount whereas M.A. No.34 of 2016 has been filed by the Insurance Company challenging their liability to pay the amount of compensation. Both these appeals arise out of the same award and judgment dated 22nd day of September, 2015 passed by the District Judge II- cum-Presiding Officer, Motor Accident Claims Tribunal, Dumka in Motor Accident Claim Case No.73 of 2009.

3. After hearing the arguments of respective parties, this Court feels that the matter should be remanded to the Tribunal for deciding two vital issues, which have not been decided by the Tribunal.

4. Counsel appearing on behalf of the appellant-Insurance Company in M.A. No.34 of 2016 submits that the policy by which the vehicle was covered is an "act only policy" and was not a comprehensive policy. It is his contention that since the policy is not comprehensive, the occupant of the vehicle is not covered by the policy. In support of his contention, he relies upon the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Limited versus Balakrishnan and Another reported in (2013) 1 SCC 731 and in the case of Jagtar Singh alias Jagdev Singh versus Sanjeev Kumar and Others reported in (2018) 15 SCC 189.

5. Learned Counsel appearing for the claimants submits that in the written statement filed by the Insurance Company before the Tribunal, no where any plea has been taken that the policy was an act only policy. As per him, it is the case of the Insurance Company that the vehicle was being used for hire and reward, but surprisingly, in support of their contention, the Insurance Company has not led any evidence. He submits that now the Insurance Company cannot take a plea that the policy was an "act only policy".

6. To appreciate this issue, I have gone through the Exhibit 2, which is the only document on record. Exhibit 2 is not the policy. The said document is Certificate of Insurance. From the said Certificate of Insurance, one cannot decipher whether it was an "act only policy" or a "comprehensive package policy". Whether passengers were covered or not is also not mentioned in the Certificate. It only mentions as under: -

Private Car Policy A Liability Only Who at all were covered and whether passengers were covered or not has not been mentioned in the Certificate of Insurance.

7. In paragraph 27 of the judgment in the case of National Insurance Company Limited versus Balakrishnan and Another reported in

(2013) 1 SCC 731, on the facts of that case, which the Hon'ble Supreme Court was considering, the Hon'ble Supreme Court has held as under: -

27. In view of the aforesaid legal position, the question that emerges for consideration is: whether in the case at hand, the policy is an "Act policy" or "comprehensive/package policy"? There has been no discussion either by the Tribunal or the High Court in this regard. True it is, before us, Annexure P-1 has been filed which is a policy issued by the insurer. It only mentions the policy to be a "comprehensive policy" but we are inclined to think that there has to be a scanning of the terms of the entire policy to arrive at the conclusion whether it is really a "package policy" to cover the liability of an occupant in a car.

8. In this case also I find that there is no discussion in the judgment and award of the Tribunal with regard to the policy whether it is an "act only policy" or a "comprehensive policy". Even if specific plea is not taken as to whether the policy is an "act only policy" or "comprehensive policy" it is the duty of the Court to come to a finding after going through the policy as to whether the policy is an "act only policy" or a "comprehensive policy", because the same will have huge impact on the judgment.

9. A pleading cannot be contrary to the terms of contract. Insurance is a contract. Thus, ultimately, the terms of the contract will govern the issues and not the pleadings.

In this type of cases, terms of contract will be the guiding factor in the judgment, no matter whatever is pleaded in the pleadings. Pleadings will not govern or override the terms of the contract. Even if in the pleadings nothing has been mentioned as to whether it is an "act only policy" or a "comprehensive policy", it is the duty of the Tribunal to find out as to whether the policy is an "act only policy" or a "comprehensive policy" from the policy document.

10. Tribunal in the instant case has not discussed the aforesaid fact nor arrived at any finding. Be it noted that to arrive at such finding, policy must be on record. Surprisingly, the policy was not on record in this case. Thus, I think it to be proper to remand this matter before the Tribunal to decide the issue as to whether the policy was an "act only policy" or a "comprehensive policy" and whether the same covers passengers of the vehicle or not.

11. In this appeal preferred by the claimants, they are challenging the quantum. One aspect is apparent that claim application was filed claiming compensation for the death of the father and son. Tribunal assessed compensation for the death of the father, but has not awarded any amount for

the death of the son nor discussed as to what would be the compensation in case of the son.

12. Considering the aforesaid fact and also since this case is being remanded, the Tribunal is also directed to consider the compensation, which should be granted to the claimants as a result of death of the son. Further, it is the case of the claimants that in view of the judgment of the Hon'ble Supreme Court in the case of Smt. Sarla Verma & Others versus Delhi Transport Corporation & Another reported in (2009) 6 SCC 121 and the judgment in the case of National Insurance Company Limited versus Pranay Sethi & Others reported in (2017) 16 SCC 680, compensation assessed in respect of death of father is also to be enhanced.

13. In view of the aforesaid, this Court is remanding this case to the Tribunal. The Tribunal will also decide amount of compensation, which needs to be paid in respect of death of father and son. Thus, the parties will be at liberty to adduce fresh evidence, but, it is made clear that the Insurance Company will bring on record the entire policy document. Since all the parties have appeared, they will cooperate in early disposal of the case before the Tribunal. It is expected that within four months of receipt of a copy of this order, the Tribunal will dispose of the claim application in terms of the remand. Since the appeal filed by the Insurance Company is limited to their liability, which they are denying, and the appeal preferred by the claimants is in respect of enhancing the compensation, I am of the opinion that the quantum, which has been assessed in the award dated 22nd September, 2015 passed in Motor Accident Claim Case No.73 of 2009 is the least which the claimants can get. Further, if the submission of the Insurance Company is accepted, then, at best they can get right to recover the amount of compensation from the owner, by applying the theory of "pay and recover". In that view, I also direct the Tribunal to disburse the entire amount which has already been deposited by the Insurance Company in favour of the claimants. The statutory amount deposited by the appellant-Insurance Company at the time of filing M.A. No.34 of 2016 is directed to be returned to the appellant-Insurance Company. The Lower Court Records be also sent back.

14. Both these appeals are, thus, disposed of.

15. In view of the disposal of the appeals, I.A. No. 8406 of 2018 in M.A. No.34 of 2016 also stands disposed of.

(Ananda Sen, J.) Kumar/Cp-02