THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Appellate Jurisdiction)
DATED : 20th MAY, 2022
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SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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MAC App. No.13 of 2019
0
Appellant : The Branch Manager,
Reliance General Insurance Company Limited
versus
Respondents : Dil Kumari Pradhan and Others
Appeal under Section 173 of the Motor Vehicles Act, 1988
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Appearance
Mr. Manish Kr. Jain, Advocate for the Appellant.
Mr. Sudesh Joshi, Advocate with Mr. Yadev Sharma and Mr.
Sujan Sunwar, Advocates for the Respondents No.1 to 3.
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J U D G M E N T (ORAL)
Meenakshi Madan Rai, J.
1. The Appellant herein assails the Judgment and
Award of the Learned Motor Accidents Claims Tribunal, South
Sikkim, at Namchi (for short, "Learned Claims Tribunal"), dated
11-03-2019, in MACT Case No.04 of 2018.
2. Learned Counsel for the Appellant contends that his
challenge is two-pronged, the first being that rash and negligent
act of the driver of the two wheeler has not been proved, and
secondly, the pillion rider being a gratuitous passenger was
therefore not covered by the Policy of Insurance. That, in view
of the said arguments, the impugned Judgment and Award of the
Learned Claims Tribunal ought to be set aside. MAC App. No.13 of 2019 2
The Branch Manager, Reliance General Insurance Company Limited vs. Dil Kumari Pradhan and Others
3. Per contra, Learned Counsel for the Respondents
submits that in the first instance the ground of gratuitous
passenger was never agitated by the Appellant before the
Learned Claims Tribunal and a fresh ground cannot now be
raised at the appellate stage. That, the fact of the accident itself
establishes the rash and negligent act of the driver of the two
wheeler. That, before the Learned Claims Tribunal the Appellant
did not deny its liability. Hence, the impugned Judgment and
Award of the Learned Claims Tribunal requires no interference.
4. Having heard Learned Counsel for the parties in
extenso, I have also perused the documents on record as well as
the evidence.
5. The facts briefly narrated are that a Claim Petition
was filed by the Respondents No.1 to 3 claiming compensation
on account of the death of the deceased in a motor cycle
accident on 15-05-2017 near Jorethang-Legship Road, South
Sikkim. The deceased was riding pillion on the motor cycle. The
total compensation claimed was Rs.32,86,000/- (Rupees thirty
two lakhs and eighty six thousand) only. On consideration of the
evidence on record, the Learned Claims Tribunal granted a
compensation of Rs.26,64,200/- (Rupees twenty six lakhs, sixty
four thousand and two hundred) only, and directed the Appellant
herein to pay the said compensation with interest @ 10% per
annum from the date of filing of the Claim Petition till full and
final payment.
6. In the first instance, it must be pointed out that as
submitted by the Respondents there is no averment pertaining MAC App. No.13 of 2019 3
The Branch Manager, Reliance General Insurance Company Limited vs. Dil Kumari Pradhan and Others
to the question of gratuitous passenger in the written statement
of the Respondent No.1, the Appellant herein, before the
Learned Claims Tribunal and hence, I am not inclined to consider
this ground as a new ground cannot be raised in Appeal, this
being a settled position of law. Secondly, so far as the question
of rash and negligent driving not having been established, it is
apposite to state here that there is no denial that the accident
occurred which resulted in the unfortunate death of the pillion
rider subsequently. The principle of res ipsa loquitur thus falls
into place, which applies to a situation when the mere happening
of the accident is more consistent with the negligence of the
defendant than with other cause. Besides the principle of res
ipsa loquitur, Exhibit 9 indicates that a Final Report under
Section 174 of the Code of Criminal Procedure, 1973, was
submitted reporting therein the unnatural death of the deceased
Diwas Rai. Investigation revealed that on 15-05-2017, at
around 1915 hours, a telephonic information was received from
ASI Jitman Subba stating that at around 1900 hours a motor
bike bearing number SK 04 P 5250 (Royal Enfield) with two
riders while going to Sikkip, West Sikkim from Jorethang were
buried under the debris at Sikkip leading to the death of the
driver and the rider was evacuated to the Hospital, but
succumbed to his injuries on road. No cross-examination of any
witness demolished this document and the facts stated therein
have thus attained finality.
7. As per the evidence of D.W.1, Manager, Legal Claims
of the Appellant, the policy of insurance is a comprehensive MAC App. No.13 of 2019 4
The Branch Manager, Reliance General Insurance Company Limited vs. Dil Kumari Pradhan and Others
package policy. In Yashpal Luthra and Another vs. United India
Insurance Co. Ltd. and Another1 it was held as follows;
"27. In view of the aforesaid, it is clear that the comprehensive/package Policy of a Two-
Wheeler covers a pillion rider and comprehensive/package Policy of a Private car covers the occupants and where the vehicle is covered under a Comprehensive/Package Policy, there is no need for Motor Accident Claims Tribunal to go into the question whether the Insurance Company is liable to compensate for the death or injury of a pillion rider on a two-wheeler or the occupants in a Private Car. In fact, in view of the TAC's directives and those of the IRDA, such a plea was not permissible and ought not to have been raised as, for instance, it was done in the present case."
8. Considering that the policy is a comprehensive
policy, it needs no reiteration that it covers the pillion rider. This
is being stated just to clear the air with regard to the position of
a pillion rider in two wheelers, as held by the Hon'ble Supreme
Court.
9. In light of the facts and circumstances discussed
above, I am of the considered view that the Judgment and
Award of the Learned Claims Tribunal requires no interference
and is accordingly upheld.
10. Appeal dismissed and disposed of accordingly.
11. No order as to costs.
12. Copy of this Judgment be forwarded to the Learned
Claims Tribunal for information, along with its records.
( Meenakshi Madan Rai ) Judge 20-05-2022
Approved for reporting : Yes ds
1 2011 ACJ 1415 : 2009 SCC OnLine Del 4291
