Rajasthan High Court - Jodhpur

Hdfc Ergo General Insurance Company Ltd vs Lalu Ram (2024:Rj-Jd:36391) on 2 September, 2024

Author: Nupur Bhati

Bench: Nupur Bhati

[2024:RJ-JD:36391]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN

                                   AT JODHPUR


                     S.B. Civil Misc. Appeal No. 483/2023

HDFC ERGO General Insurance Company Ltd., Jodhpur office at
N.K. Tower, Choupasni Road, Jodhpur through its Authorized
Representative.
                                                                          ----Appellant
                                        Versus
1.       Lalu Ram S/o Gheesa Ram Jat, Resident of Village
         Thathana, Tehsil Nava, District Nagaur.
2.       Satyanarayan S/o Lalu Ram Jat, Resident of Village
         Thathana, Tehsil Nava, District Nagaur.
3.       Kishna Ram Jat S/o Uda Ram, (Driver), Resident of
         Village Thathana, Tehsil Nava, District Nagaur.
4.       Arjun Ram Jat S/o Amra Ram, (Owner), Resident of
         Village Thathana, Tehsil Nava, District Nagaur.
                                                                     ----Respondents


For Appellant(s)              :     Mr. Jagdish Vyas
For Respondent(s)             :     Mr. Bharat Shrimali for claimants
                                    Mr. Deepak Nehra for non-claimants



               HON'BLE DR. JUSTICE NUPUR BHATI

Judgment

02/09/2024

1. The instant misc. appeal has been filed by the appellant/non-

claimant No.3 under Section 173 of the Motor Vehicle Act, 1988

('the Act of 1988') against the judgment and award dated

25.11.2022 passed by learned Judge, Motor Accident Claims

Tribunal, Kuchaman City, District Nagaur in Claim Case

No.51/2022, whereby the learned Tribunal partly allowed the claim

petition of the claimants/respondents No.1 and 2 and awarded

compensation of Rs.4,88,000/- along with interest @ 5.50% p.a.

[2024:RJ-JD:36391] (2 of 9) [CMA-483/2023]

2. Brief facts of the case are that the deceased, Fula Devi was

traveling in the insured jeep bearing number RJ-37-UA-2483 on

04.05.2013 at 7:00 PM, from Meethdi to Thathana when she fell

down due to the rash and negligent driving of the respondent no.

1/driver, and received injuries, on account of which she died

subsequently. Thereafter, a claim was filed before the learned

Tribunal under Section 166 and 140 of the MV Act, and a sum of

Rs. 24,04,000/-.

3. In response to the said claim, respondent no. 1 and 2/driver

and owner of the offending vehicle respectively negated the

occurrence of any such accident on 04.05.2013 and alternatively

stated if at all, any liability arises, it would fall upon the appellant-

Insurance Company with which the offending vehicle had been

insured. Appellant-Insurance Company, in its reply to the Claim

petition took a preliminary objection that the deceased was

traveling as an unauthorised passenger in the offending vehicle,

for whom no premium had been charged by the appellant-

Insurance Company and thus, no liability accrues upon the

appellant-Insurance Company.

4. After hearing the parties, learned Commissioner framed four

issues including:

"1. आया दिनांक 04.05.2013 को वाहन जीप नं. आर.जे-37-यू.ए-2483 के

चालक विपक्षी संख्या 01 द्वारा वाहन को तेजगति एवं असावधानी से चलाकर

दर्घ ु टना कारित की, जिसके कारण फूलादे वी की मत्ृ यु हुई? - प्रार्थीगण

2. आया विपक्षी सं. 01 वाहन चालक, विपक्षी सं. 02 के नियोजन में उसके

हितार्थ-लाभार्थ कार्य कर रहा था और इसी नियोजन काल में यह दर्घ ु टना कारित

हुई है ? - प्रार्थीगण

[2024:RJ-JD:36391] (3 of 9) [CMA-483/2023]

3. आया विपक्षीगण द्वारा प्रस्तत ु प्रारं भिक आपत्तियों और विशेष विवरण में

अंकित आपत्तियों के क्या प्रभाव है ? - अप्रार्थीगण

4. आया प्रार्थीगण, विपक्षीगण से क्षतिपर्ति ू राशि 24,04,000/- रूपये प्राप्त करने

के अधिकारी हैं? - प्रार्थीगण

5. अनुतोष ?"

5. During the course of the proceedings, the

respondents/claimants no. 1 and 2 examined A.D. 1 Lalu Ram and

A.D. 2, Ganesh Ram and exhibited 12 documents in support of

their claim. Appellant-Insurance Company examined N.A.D 1,

Rakesh Solanki and produced the Insurance Policy (N.A.1) in

favour of the appellant-Insurance Company and on the basis of

the same, the learned Tribunal, Kuchaman City, vide

judgment/award dated 25.11.2022 awarded a sum of Rs.

4,88,000/- @ 5.50% p.a.

6. Thus, aggrieved of the award passed by the learned Tribunal,

the appellant-Insurance Company has preferred this appeal.

7. Learned counsel for the appellant submits that the learned

Tribunal has erred in imposing the liability upon the Insurance

Company inasmuch as the Insurance Policy clearly stipulates that

the offending Vehicle had been insured under a "Private Car

Liability Only Policy" which does not cover the risk of third party

risk of an "occupant" in a car. For the purpose of the same, he also

relied upon the judgment passed by the Hon'ble Apex Court in the

case of National Insurance Company Limited v.

Balakrishnan reported in 2013 (1) SCC 731.

8. Learned counsel for the appellant also submits that the

learned Tribunal has erred in misreading the nature of the policy

based on the phrase "Total Package Premium" under the head of

[2024:RJ-JD:36391] (4 of 9) [CMA-483/2023]

'Premium Details' and based on this conjecture, came to a finding

that the Insurance Policy was a "Package Policy" and held the

appellant-Insurance Company liable to pay compensation to the

respondents/claimants on account of the death of the deceased

who was traveling as an occupant in the offending vehicle on the

date of the accident. He also submitted that no premium was

charged for the passengers sitting in the offending vehicle and

therefore, under the Act only policy, the appellant-Insurance

Company cannot be held liable. For the purpose of the same, he

placed reliance upon the judgment passed by this Court in the

case of HDFC ERGO General Insurance Company Ltd. v Rajbala

[S.B. Civil Misc. Appeal No. 2207/2017 decided on 08.08.2024].

9. Learned counsel for the appellant-Insurance Company also

placed reliance upon the judgment passed by the Coordinate

Bench of this Court in the case of Oriental Insurance Company

Limited v. Sharda Devi [S.B. Civil Misc. Appeal No.696/2003

decided on 04.08.2016], wherein it has been observed that the

direction to pay and recover only in the case of third parties in

accordance with the judgment passed by the Hon'ble Apex Court

in the case of National Insurance Company Limited v.

Swaran Singh reported in (2004) 3 SCC 297, and thus, in the

present case, where the risk of the deceased herself was not

covered under the Insurance Policy, the appellant-Insurance

Company cannot be held liable to pay the compensation and

recover the same from the Owner-Driver.

10. Per contra, learned counsel for the respondents/non-

claimants submits that the Insurance Policy mentions that the

"Total Package Premium" has been charged under the head of

[2024:RJ-JD:36391] (5 of 9) [CMA-483/2023]

"Premium Details" in the Insurance Policy and thus, the learned

Tribunal has rightly considered the Insurance Policy as a "Package

Policy" and imposed liability upon the appellant-Insurance

Company.

11. Learned counsel appearing for the respondents/claimants

submits that the compensation awarded by the learned Tribunal is

adequate and, therefore, the same requires no interference in the

instant misc. appeal filed by the appellant insurance company.

12. Heard counsel for the parties, perused material available on

record and judgments cited at the Bar.

13. This Court finds that while the learned Tribunal had observed

in its order that the Insurance Policy (Ex.N.A.1) has been titled as

"Private Car Liability Policy Only", however it has relied upon the

conjecture that the said Insurance Policy is not an Act Only Policy,

inasmuch as in Part 'A' to 'B' of the said Policy (Ex. N.A.1) it has

been mentioned as Total Package Premium, to conclude that the

appellant-Insurance Company cannot be exonerated from its

liability when the occupants in a private car are also covered

under the "Total Package Premium". The relevant part of the order

passed by the learned Tribunal is reproduced as under:

"31. इस संबंध में अधिवक्ता अप्रार्थीगण द्वारा प्रस्तत ु न्यायिक दृष्टांत का विवेचन निम्न प्रकार है :-

xxxx उक्त न्यायिक दृष्टांतों में यह सिद्धांत प्रतिपादित किया गया कि यदि प्राईवेट कार ओनली पॉलिसी में क्षतिपूर्ति राशि अदायगी के लिए बीमा कम्पनी का उत्तरदायित्व नहीं है . चाहे वाहन को किराये पर लिया गया हो अथवा नहीं। दोनों ही स्थिति में बीमा कम्पनी जिम्मेदार नहीं है । हस्तगत मामले में भी दर्घ ु टना कारित करने वाले वाहन का बीमा प्रदर्श एन.ए.-01 प्राईवेट कार लाईबलिटी पॉलिसी ओनली के तहत लिखा हुआ है । अतः उक्त न्यायिक दृष्टांत वकील अप्रार्थीगण के तर्कों को बल प्रदान करते हैं लेकिन वकील प्रार्थीगण द्वारा प्रस्तत ु न्यायिक दृष्टांत-

[2024:RJ-JD:36391] (6 of 9) [CMA-483/2023]

xxxx में यह सिद्धांत प्रतिपादित किया गया कि बीमा कम्पनी क्षतिपर्ति ू राशि का भुगतान कर वसूली वाहन स्वामी व चालक से वसल ू ी व भुगतान के सिद्धांत के आधार पर कर सकती है ।

32. उपरोक्त सम्पूर्ण विवेचन व पेश किये गये न्यायिक दृष्टांतों में प्रतिपादित सिद्धांतों के प्रकाश में इंश्योरें स कम्पनी को दायित्व से उन्मुक्त नहीं माना जा सकता है । हालांकि बीमा कम्पनी द्वारा प्रस्तुत की गई बीमा पॉलिसी प्रदर्श एन.ए-01 में 'ए' से बी' भाग में टोटल पैकेज प्रीमियम अंकित किया गया है जिसके संबंध में माननीय उच्चतम न्यायालय ने यह सिद्धांत प्रतिपादित किया है कि टोटल पैकेज प्रीमियम के तहत निजी कार में बैठने वाले व्यक्ति भी कवर होते हैं। इंश्योरें स कम्पनी ने इस बाबत ् कोई जांच नहीं कराई है कि दर्घ ु टना कारित करने वाली निजी कार को किराया लेकर जीप के चालक द्वारा बीमा शर्तों का उल्लंघन कर रे सिग ं के लिए उपयोग में लिया जा रहा था। इस आधार पर यह नहीं माना जा सकता कि जीप के स्वामी व चालक के द्वारा बीमित वाहन का उपयोग बीमा शर्तों के अधीन नहीं किया जा रहा था। बीमा पॉलिसी प्रदर्श एन.ए-01 को दे खने से यह प्रकट नहीं होता है कि यह पॉलिसी एक्ट ओनली पॉलिसी हो। अतः उक्त आपत्ति का क्लेम याचिका पर कोई विपरीत प्रभाव नहीं पड़ा है ।"

14. This Court thus observes that the learned Tribunal has erred

in not taking into consideration the very title of the Insurance

Policy (Ex.N.A.1), which is titled as "Private Car Liability Only

Policy" which is clearly stipulated in the Policy (Ex.N.A.1) itself and

therefore, the case of the deceased ought to have been

adjudicated by the learned Tribunal as per the Act Only policy and

not Package Policy.

15. This Court also takes into consideration the judgment passed

by the Coordinate Bench of this Court in the case of Oriental

Insurance Company Limited v. Sharda Devi [S.B. Civil Misc.

Appeal No.696/2003 decided on 04.08.2016] wherein it was

observed that the Policy in question was an Act Only Policy, the

Tribunal in the said case ought not have given the direction of Pay

and Recover when the deceased was not a third party. The

relevant para of the judgment is reproduced as under:

[2024:RJ-JD:36391] (7 of 9) [CMA-483/2023]

"So far as the submissions made by learned counsel for the claimants seeking direction of pay and recover in terms of the judgment in the case of Swaran Singh (supra) are concerned, as already noticed hereinbefore, the direction of pay and recover has been held applicable by Hon'ble Supreme Court in the case of third parties only and as the deceased has not been held to be a third party, the direction pertaining to the pay and recover cannot be passed."

This Court thus observes that the deceased was an occupant in

the offending vehicle, and therefore, the Insurance Company

cannot be directed to pay the compensation to the

respondents/claimants and recover from the owner-driver.

16. This Court also takes into consideration the judgment passed

by this Court in the case of HDFC ERGO General Insurance

Company Ltd. v Rajbala [S.B. Civil Misc. Appeal No.

2207/2017 decided on 08.08.2024], wherein it has been

observed that the Insurance Company cannot be held liable in the

case of an Act Only Policy when there is no premium charged

towards the passengers travelling in the offending vehicle. The

relevant part of the judgment is reproduced as under:

"In view of the above cited judgments, the position of law as it stands at present is that in case of a private vehicle insured against "Act only Policy", the liability of occupants is not covered as the protection of Chapter-XI of the Motor Vehicles Act, 1988 is only available against the third party risks and the occupants of a private vehicle are not third parties. And in such cases direction to pay and recover cannot be issued to the insurer. In the present case, the vehicle was evidently insured as a 'Private Car Liability Only Policy'/'Act Only Policy' wherein the risk of the occupants was not covered and also no premium was

[2024:RJ-JD:36391] (8 of 9) [CMA-483/2023]

received by the appellant-insurance company for the occupants of the vehicle."

Thus, in the present case too, in the absence of any premium

charged towards the deceased as per the Insurance Policy which is

an Act Only Policy, the direction of pay and recover cannot be

issued to the appellant-Insurance Company.

17. Therefore, this Court finds that the learned Tribunal erred in

coming to the conclusion that the Insurance Policy in question was

a Package Policy merely because the phrase "Total Package

Premium" is mentioned under the heading of 'Premium Details',

while the title of the Insurance Policy itself states it to be a

"Private Car Liability Only Policy". Furthermore, the Insurance

Policy in the present case is a Liability Only Policy, the risk of third

parties, who are occupants in a private car, is not covered and