The Oriental Insurance Co. Ltd vs Om Prakash
2022 Latest Caselaw 8124 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 715/2022

The Oriental Insurance Co. Ltd., Through Incharge, T.p. Claims Hub, 637-B, 4Rth Floor, Bhansali Tower, Residency Road, Jodhpur. (Insurer Of Car No. Rj-22-Ca-1226)

----Appellant Versus

1. Om Prakash S/o Girdhari Ji, Aged About 53 Years, B/c Jaat, R/o 8, Bichla Chowk, Budhvari Kalla, Khakhoti Nandbai, Bharatpur (Raj.).

2. Kamla Devi W/o Om Prakash, Aged About 51 Years, B/c Jaat, R/o 8, Bichla Chowk, Budhvari Kalla, Khakhoti Nandbai, Bharatpur (Raj.).

3. Balveer Singh S/o Om Prakash, Aged About 27 Years, B/c Jaat, R/o 8, Bichla Chowk, Budhvari Kalla, Khakhoti Nandbai, Bharatpur (Raj.).

4. Devvati W/o Pushkar Singh, Aged About 29 Years, D/o Om Prakash, B/c Jaat, R/o Murkaiya Patti, Mai, Bharatpur (Raj.)

5. Smt. Kamlesh W/o Manoj, Aged About 25 Years, D/o Om Prakash, B/c Jaat R/o Mai, Bharatpur (Raj.)

6. Lokendra Singh S/o Karan Singh, B/c Jaat, R/o Kurvada, Kumher, Bharatpur(Raj.) (Driver Of Car No. Rj-22-Ca- 1226)

7. Ramesh Kumar S/o Sukh Lal, B/c Suthar, R/o 533, Bhakto Ki Jhopdi, Khivandi, Sumerpur, Tehsil Sumerpur, Distt. Pali (Raj.) (Owner Of Car No. Rj-22-Ca-1226)

----Respondents

For Appellant(s) : Mr. Rishi Chouhan For Respondent(s) : Mr. Nitesh Mathur, for the respondents nos.1 to 5

HON'BLE MR. JUSTICE MADAN GOPAL VYAS

Order

Date of order 07/06/2022

(2 of 4) [CMA-715/2022]

Heard learned counsel for the appellant-Insurance Company

and learned counsel appearing for the respondents-claimants on

stay application.

The instant Civil Misc. Appeal under Section 173 of the Motor

Vehicles Act,1988 (hereinafter referred to as "the Act" for short)

has been preferred against the judgment and award dated

21.02.2022 passed by the learned Judge, Motor Accident Claims

Tribunal, Pali in MACT Case No. 86/2018, whereby the learned

Tribunal while partly allowing the claim petition filed by the

respondents-claimants awarded a total sum of Rs.7,77,384/- with

interest @6% from the date of filing of the claim petition i.e. 7.5

2018.

Learned counsel for the appellant-Insurance Company

challenging the impugned judgment and award submits that the

policy was an "Act only policy" and, therefore, the liability of the

appellant- Insurance Company only is to cover the risk of a third

party. It is also submitted that the deceased being the occupant of

the vehicle in question cannot be construed as a third party. The

fact of the matter remains that the deceased was a gratuitous

passenger.

In support of his contentions, learned counsel for the

appellant-insurance company relied upon the following

judgments:-

(1) Oriental Insurance Company Ltd. Vs. Meena Variyal and Others reported in 2007 ACJ 1284.

(2) Oriental Insurance Company Ltd. vs. Sudhakaran K.V. Vs. Others (Civil Appeal No. 3634 of 2008) decided on 16.05.2008.

(3) General Manager, United Insurance Company Ltd. Vs. M. Laxmi & Others reported in 2009 DNJ (SC) 89. (4) Leeladhar Vs. Mahendra Singh and Others (S.B. Civil Misc. Appeal No.211/2002) decided on 18.02.2021/

(3 of 4) [CMA-715/2022]

(5) United India Insurance Company Ltd. Vs. Narsingh Tanwar and Another (S.B. Civil Misc. Appeal No.658/2021) decided on 15.11.2021.

(6) The New India Assurance Company Ltd. Vs. Panchi Devi and Other (S.B. Civil Misc. Appeal No.2995/2018) decided on 3.11.2018.

(7) United India Insurance Company Ltd., Jodhpur Vs. Smt. Hudi and others (S.B. Civil Misc. Appeal No.765/2010) decided on 3.12.2013.

Thus, it is submitted by learned counsel for the appellant-

insurance company that the effect and operation of the impugned

judgment may be stayed.

Per contra, learned counsel appearing for the respondents-

claimants submits that the appellant-insurance company is under

obligation to indemnify the awarded amount. It is also submitted

that as per the policy, the risk of a third party is also covered. It is

further submitted that the deceased was not the gratuitous

passenger. In alternative, learned counsel for the respondents-

claimants submits that a direction to pay and recover of the award

amount may be issued. In support of his contentions, learned

counsel for the respondents-claimants relied upon the judgment

delivered in the case of Priti (Kumari) D/o Ram Karan vs. Amar

Singh and Others reported in 2022(2) DNJ (Raj.) 433.

I have bestowed my consideration to the arguments

advanced by the learned counsel for the respective parties. It is

not in dispute that the insurance policy was only an "Act only

Policy" and the deceased himself was one of the occupants of the

vehicle.

The matter requires consideration.

Admit.

(4 of 4) [CMA-715/2022]

Issue notice to the respondents No.6 and 7. Issue notice to

the stay application also, returnable within a period of six weeks.

Call for record.

In the facts and circumstances of the case, meanwhile effect,

operation and execution of the judgment and award dated

21.02.2022 passed by the learned Judge, Motor Accidents Claims

Tribunal, Pali in MACT Case No. 86/2018 shall remain stayed qua

the appellant-Insurance Company.

(MADAN GOPAL VYAS),J 213-Jagjeet/-

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