Madhya Pradesh High Court
The Oriental Inusrance Company ... vs Rampyare Devgadhe on 20 June, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 20 th OF JUNE, 2023
MISC. APPEAL No. 1190 of 2017
BETWEEN:-
THE ORIENTAL INSURANCE COMPANY LIMITED
THROUGH THE DEPUTY MANAGER ORIENTAL
INSURANCE COMPANY LIMITED TP HUB 1561 NAPIER
TOWN DR. BARAT ROAD JABALPUR (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI AJIT KUMAR AGRAWAL - ADVOCATE)
AND
1. RAMPYARE DEVGADHE S/O NATTHULAL, AGED
ABOUT 42 YEARS, VILLAGE MANDAL TOLA
BISONI P.S. AND TEHSIL LANJI (MADHYA
PRADESH)
2. SHRIRAM BISNOI S/O SAWALRAM, AGED ABOUT
21 YEARS, SAKIL DOLIKALA, TAH. PACHPADRA,
DISTT. BADMER PS KALYANPUR RAJASTHAN AT
PRESENT IN THE HOUSE OF PALIWAL BUS STAND
LANJI TAH. LANJI (RAJASTHAN)
3. OMPRAKASH S/O NAINARAM, AGED ABOUT 45
YEARS, LONAWAS TAH. LUNI DISTT. JODHPUR
(RAJASTHAN)
4. HDFC GENERAL INSURANCE CO. LTD. JODHPUR
RAJaSTHAN TAH. JODHPUR (RAJASTHAN)
.....RESPONDENTS
(RESPONDENT NO.3 BY MS.RASHI DUA - ADVOCATE)
(RESPONDENT NO.4 BY MS.ANUSHREE CHOURASIA - ADVOCATE)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
Signature Not Verified
Signed by: AMIT JAIN
Signing time:
6/22/2023 6:55:00 PM
This appeal is filed by the Appellant/Oriental Insurance Company Limited
being aggrieved of award dated 28.2.2017 passed by learned Member, Motor
Accident Claims Tribunal, Balaghat in Motor Accident Claim Case No.09/2013.
Learned counsel for the Appellant/Oriental Insurance Company Limited
submits that the Claims Tribunal has not appreciated the facts in correct
perspective. After recording a finding in Paragraph No.18 of the impugned
award that the accident had taken place due to the negligence of the Driver of
the Tractor in driving the vehicle but erroneously without recording any finding
of the negligence on the part of the Driver of the Motorcycle on which the
deceased was travelling the Claims Tribunal has passed an award against the
Insurer of the Motorcycle on the pretext that the Tractor was not insured with
HDFC Agro General Insurance Company Limited. Neither the owner nor the
driver of the Motorcycle were impleaded as parties and only the Oriental
Insurance Company Limited was impleaded as party to the proceedings. In
absence of the owner and driver being impleaded as parties and proving their
negligence in the accident, no award could have been passed by the Claims
Tribunal.
The Motorcycle was insured under Two Wheelers Liability Only Policy-
Zone B vide Exhibit A-45. The number of the Motorcycle is MP50-MA-2423.
Under the Act Policy, Pillion Rider will not come within the definition of a Third
Party as per Insurance Regulatory & Development Authority (IRDA) Guideline
and the judgment of the Apex Court in National Insurance Company
Limited versus Balakrishnan & Another (2013) 1 SCC 731 is crystal clear
wherein it is held that "Act Policy" stands on a different footing from a
"Comprehensive/Package Policy". As the Insurance Regulatory & Development
Authority, which is presently the statutory regulatory authority has commanded
Signature Not Verified
Signed by: AMIT JAIN
Signing time:
6/22/2023 6:55:00 PM
the Insurance Company that a "Comprehensive/Package Policy" covers the
liability of the Insurer for payment of compensation to the occupant in a Motor
Vehicle, there cannot be any dispute in that regard. The earlier pronouncements
were rendered in respect of "Act Policy", which admittedly cannot cover a third
party risk of an occupant in a Car.
Learned counsel for the Appellant/Oriental Insurance Company Limited
points out that the Insurance Company of the Motorcycle has no liability
towards the Pillion Rider under the Limited Liability or Act Policy and,
therefore, the learned Claims Tribunal has erred in passing the award against the
Insurance Company.
Learned counsel for the respondent No.3 and learned counsel for
respondent No.4 support the impugned award.
After hearing learned counsel for the parties and going through the
record, it is evident that there is no averment in regard to the negligence of the
Driver or Owner of the Motorcycle. This averment in regard to negligence is
sine qua non to fasten liability on the Insurer. In absence of such averment, no
liability could have been fastened on the Insurer of the Motorcycle while infact,
the Owner and Driver of the Motorcycle were not impleaded as parties to the
claim petition.
Once a finding has been recorded by the Claims Tribunal that the
accident took place due to the negligence of the driver of Tractor No.RJ19-RA-
8203 then the Claims Tribunal should have passed an award against the Owner
and Driver of the Tractor and not against the Insurance Company.
In view of such facts and the law laid down by the Apex Court in
National Insurance Company Limited versus Balakrishnan & Another
Signature Not Verified
Signed by: AMIT JAIN
Signing time:
6/22/2023 6:55:00 PM
(supra), I have no investigation in setting aside the impugned award dated
28.2.2017 passed by learned Member, Motor Accident Claims Tribunal,
Balaghat in Motor Accident Claim Case No.09/2013 against the present
Appellant/Oriental Insurance Company Limited and it is so ordered. The
impugned award is modified to that extent and it is directed that the
compensation as assessed by the Claims Tribunal will be payable by the Owner
& Driver of the Offending Tractor No.RJ19-RA- 8203.
In above terms, this appeal is disposed of.
Let record of the Claims Tribunal be sent back.
(VIVEK AGARWAL)
JUDGE
amit
Signature Not Verified
Signed by: AMIT JAIN
Signing time:
6/22/2023 6:55:00 PM
