Rajasthan High Court - Jodhpur

U.I.Ins.Co.Ltd vs Sanju Devi And Ors. ... on 29 August, 2023

Bench: Madan Gopal Vyas

[2023:RJ-JD:27507]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 278/2010

United India Insurance Company Limited, Lohagal Road, Opposite SBBJ Bank Shastri Nagar Road, Ajmer through its Divisional Manager

----Appellant Versus

1. Sanju Devi W/o Late Rameshwar, caste Jaat, resident of Haripura, District Nagaur (Raj.)

2. Mahendra S/o Late Rameshwar, Caste Jaat, resident of Haripura, District Nagaur (Raj.)

3. Ganpat Ram S/o Bhura Ram, caste Jaat, resident of Haripura, District Nagaur (Raj.)

4. Sundari W/o Ganpat Ram, caste Jaat, resident of Haripura, District Nagaur (Raj.)

5. Harendra Singh @ Rahindra Singh S/o Amar Singh, caste Rajput, resident of Kankaria, Teshil Nava, District Nagaur (Raj.)

6. Amar Singh S/o Sh. Devi Singh, Caste Rajput, resident of Kankaria, Tehsil Nava, District Nagaur (Raj.)

7. Brahmanand S/o Gokulchand Sharma, caste Sharma, resident of Kharkara, Pata, (Neem Ka Thana), District Sikar (Raj.)

----Respondent

For Appellant(s) : Mr. Jagdish Vyas For Respondent(s) : Mr. Bhagat dadhich Mr. Kuldeep Singh

HON'BLE MR. JUSTICE MADAN GOPAL VYAS

Judgment

DATE OF JUDGMENT: 29/08/2023

The appellant-Insurance Company has filed the present civil

miscellaneous appeal under Section 173 of the Motor Vehicles Act,

1988 against judgment and award dated 23.04.2009 passed by

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Motor Accident Claims Tribunal, Parbatsar (hereinafter referred to

as the learned Tribunal) in Claim Case no. 12/2007, whereby, the

learned Tribunal has awarded a sum of Rs. 3,47,400/- as

compensation to the claimants on account of death of Rameshwar

along with interest and has held the appellant-Insurance Company

alongwith the owner and driver of the vehicle jointly and severally

liable for payment of compensation.

2. The facts in a nutshell giving rise to the present appeal are

that on 23.11.2006, the deceased Rameshwar and Bhagu Ram

alongwith Sanju (respondent No. 1 herein) were travelling in a

jeep bearing registration number RJ 14 1C 6702 which was being

driven by Harendra Singh (respondent no. 5 herein). The jeep

collided with a tree and turned upside down on account of which

Bhagu Ram died on spot and Rameshwar died during his

treatment.

3. The Tribunal after hearing the parties, inter alia, held that

since the jeep was insured on the date of the accident, the

respondent-Insurance Company is jointly and severally liable

alongwith respondent nos. 1, 2 and 3. After determining the

compensation based on the income and age of the deceased,

learned Tribunal passed the award aforesaid.

4. Mr. Jagdish Vyas, learned counsel for the appellant submits

that the jeep which met with an accident was a private jeep and

was insured under an 'Act only policy' in the name of owner-

respondent no. 7-Brahmanand. It is submitted that the

passengers travelling in the said jeep were gratuitous passengers

for whom no premium had been taken by the appellant-Insurance

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Company. Moreover, the driver of the jeep also did not possess

any valid driving license on the date of accident. It is further

submitted that the finding of the learned Tribunal with respect of

issue no. 4 is erroneous and cannot be sustained in the eyes of

law. Thus, it is prayed that the appellant-Insurance Company be

exonerated from its liability. In support of the contentions, reliance

was placed on the following judgments:

(I) Oriental Insurance Co. Ltd. v. Meena Variyal reported in

(2007) 7 SCC 425.

(II) National Insurance Company Ltd. v. Smt. Sahidam Bano

reported in 2015 (2) R.A.R. 892 (Raj.)

(III) Oriental Insurance Co. Ltd. v. Smt. Sharda Devi and

Ors, SBCMA No. 696/2003, decided on 04.08.2016,

Rajasthan High Court.

5. Mr. Bhagat Dadhich and Mr. Kuldeep Singh, learned counsel

for the respondents-claimants vehemently opposed the

submissions made by learned counsel for the appellant. It is

submitted that the finding recorded by the Tribunal regarding the

liability of the Insurance Company does not call for any

interference.

6. I have considered the rival submissions made by learned

counsel for the parties and have perused the material available on

record.

7. From the averments made by the claimants in the claim

petition and the evidence led by the claimants, it is an admitted

position that deceased was occupant of the insured jeep. It is also

an admitted position that in course of treatment, Rameshwar died.

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Further, learned Tribunal, in para 15 of the impugned judgment

has given a finding that the owner and driver of the jeep in their

statements have admitted that they did not take any fare from the

passengers and the vehicle was not used for hire.

8. I have also perused the Schedule of Premium Of Liability

Only policy of Jeep bearing No.RJ-14-IC-6702, which reads as

under:

"SCHEDULE OF PREMIUM

TP Basic 700.00 For third party property damage of 6000 IMT-20 -100.00 Compulsory PA to Owner-Driver amount Rs.200000 100.00 WC to employee I 25.00 Loading on TP Premium 160.00 Stamp Duty 1.00 Total Liability Premium Rs.885.00"

A perusal of the Schedule of Premium reflects that no

premium was charged for passengers.

9. The liability of the Insurance Company pertaining to the 'Act

only policy' qua the occupants of the vehicle is no more res

integra as laid down by Hon'ble Supreme Court in the case of

Meena Variyal (supra) and subsequent judgment of Hon'ble

Supreme Court in the case of National Insurance Company

Limited v. Balkrishnan & Anr. : (2013) 1 SCC 731, wherein, it

has been held as under:-

"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 the IRDA, which is presently the statutory authority, has

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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 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 larger Bench as 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."

(Emphasis supplied)

10. This Court in the case of Sharda Devi (supra) has also

relied on the judgment in the case of Meena Variyal (supra) and

has held that in 'Act only policy', the risk of occupant of the vehicle

is not covered as the occupant is not a third party.

11. In view of the law laid down by Hon'ble Supreme Court and

in view of the undisputed facts, the Tribunal was not justified in

holding the appellant Insurance Company liable for making

payment of the amount of compensation. The finding on issue no.

4, is therefore, reversed.

12. Hence, the present appeal is allowed. The judgment and

award dated 23.04.2009 passed by the Tribunal is modified to the