Uttarakhand High Court

Suneeta Devi And Others vs Company Limited on 23 March, 2022

    IN THE HIGH COURT OF UTTARAKHAND
               AT NAINITAL

                    SRI JUSTICE S.K. MISHRA, A.C.J.


             Date of Hearing : 28.10.2021/23/03/2022
                              Delivered on : 23.03.2022
                       A.O. No. 157 OF 2009

Between:

National Insurance Company Limited.                           ....Appellant
and

Smt. Suneeta Devi and others.                               ...Respondents

Counsel for the appellant.            :   Mr. Prabhat Pandey, learned counsel.

Counsel for the respondents           :   Mr. Pankaj Purohit, learned counsel.


Upon hearing the learned Counsel, the Court made
the following

JUDGMENT :

In this case, the respondent National

Insurance Company Limited has assailed the judgment

dated 26.02.2019 passed by the learned Motor Accident

Claims Tribunal, Chamoli in MACP No.15 of 2008 Smt.

Suneeta Devi and others vs. National Insurance

Company Limited, whereby the learned Tribunal directed

the present appellant, i.e., respondent No. 1 before the

Tribunal to pay a sum of Rs. 8,41,820/-, along with

interest at the rate of 6 per cent per annum from the

date of institution of the petition.

2. Briefly stated, the case of the claimants is that

late Pradeep Kumar alias Pradeep Chandra Dhondiyal

was the owner of Alto Car No. U.A.-07U-5241. He was

proceeding by driving it himself on 31.01.2008 towards

Gopeshwar and at about 06:00 PM, the said Car,

because of some technical fault, met with an accident at

Ziro Bend within the jurisdiction of Gopeshwar Police

Station. As a result of the accident, it fell inside a gorge.

In that accident, late Pradeep Kumar alias Pradeep

Chandra Dhondiyal sustained severe injuries and died.

At the time of the accident, the deceased was 34 years'

old. He was an employee in the Chief Development

Office, Gopeshwar (Prasar Prashikshan Kendra), and was

getting a sum of Rs. 18,000/- per month as salary. As a

result of his death, his wife Suneeta Devi became widow,

his children, namely petitioner Nos. 2, 3 and 4, became

orphan. The mother of the deceased has also been

impleaded as petitioner No. 5 in the application.

Therefore, the petitioners have claimed a sum of Rs.

32,15,000.00 as compensation from the opposite party.

3. The opposite party, i.e. the appellant before

us, National Insurance Company Limited filed its written

statements generally denying the pleas raised by the

petitioners, and further stated that the deceased had no

valid driving licence, permit, registration and fitness

certificate at the time of accident. Therefore, as per the

terms and conditions, the National Insurance Company

Limited / the opposite party is not liable to pay any

compensation.

4. On such pleadings, the learned Motor Accident

Claims Tribunal, Chamoli cast three issues relating to the

accident caused by technical fault, violation of terms and

conditions of the insurance contract, if any, and the

relief or compensation that the petitioners are entitled

to.

5. The petitioner No. 1 examined herself as PW-1

and filed twelve documents. The opposite party did not

adduce oral evidence but filed ten documents.

6. While deciding Issue No. 1, the learned

Tribunal held that the accident took place due to

mechanical failure of the vehicle, and decided it in

favour of the petitioners. While deciding Issue No. 2,

the learned Tribunal also held that the vehicle was

properly registered and the deceased had a valid driving

licence, and was duly insured with the Insurance

Company, i.e. the appellant. The Issue No. 2 was also

decided in favour of the petitioners. While deciding

Issue No. 3, a contention was raised by the Insurance

Company that the vehicle was being driven by the

deceased himself, hence no compensation can be

granted to his legal heirs. Alternatively, it was argued

that the maximum coverage of the Insurance Company

is upto Rs. 2 lacs as per the Company. However, the

learned Tribunal held at Paragraph-20 that from the

Insurance cover note, it is apparent that the vehicle was

insured for personal accident and the owner has paid

Compulsory Personal Accident Cover Premium of Rs.

100, and he has also paid Additional Personal Accident

Cover Premium of Rs. 250/- for five persons; as per the

insurance cover note, the limited liability is for personal

accident cover premium to owner and driver, and the

risk for owner and driver is Rs. 2 lacs, and in Column-B,

the premium for five persons has also been paid by

deceased Pradeep Kumar; and therefore, without any

proper explanation regarding aforementioned limited

liability, the claimants are entitled to get compensation

due to the death of deceased Pradeep Kumar in a motor

accident as per additional personal accident cover

premium for five persons as passengers also mentioned

in Column-B of the Insurance Policy. The learned

Tribunal accepted the arguments advanced by the

learned counsel for the claimants that as per the

Insurance Cover Note, owner had paid a premium for an

Additional Personal Accident Cover for five passengers at

the rate of Rs. 250/-, therefore, the claimants are

entitled to get compensation as per Column-B of the

Insurance Cover Note. The learned Tribunal further held

that the opposite party is unable to explain as to why

the deceased Pradeep Kumar cannot be considered as a

passenger also in the vehicle while he had paid a sum of

Rs. 250/- for Additional Personal Accident Cover

Premium to the Insurance Company, and why the

deceased should be considered for limited liability as per

the Insurance Cover Note. Hence, the learned Tribunal

went on to calculate the compensation to be Rs.

8,32,320/-, and directed the Insurance Company to pay

the same.

7. In assailing the finding, the learned counsel

for the appellant Insurance Company would submit that

as per the law prevailing, the Insurance Company's

limited liability is only upto Rs. 2 lacs and not beyond

that. He has relied upon the reported case of the

National Insurance Company Limited vs.

Balakrishnan and another, (2013) 1 SCC 731, and

argued that the Insurance Company is liable to pay Rs. 2

lacs only. He also relied upon a judgment of this Court

i.e. New India Assurance Company Limited vs. Smt.

Sudha Basiya and others (Appeal From Order No.

619 of 2012), wherein a learned Single Judge of this

Court, relying upon the aforesaid judgment of the

National Insurance Company Limited vs.

Balakrishnan and another (supra), had held that in

similar situation, the insurance company is liable to pay

a sum of Rs. 2 lacs only. He also relied upon a reported

judgment of the Hon'ble Supreme Court in the case of

National Insurance Company Limited vs. Ashalata

Bhowmik, AIR 2018 SC 5133 and wherein the Hon'ble

Supreme Court had held that the accident had occurred

due to rash and negligent driving of the vehicle by the

deceased; no other vehicle being involved; the deceased

himself was responsible for the accident; the deceased

being the owner of the offending vehicle was not a third

party within the meaning of the Act; the deceased was

the victim of his own action of rash and negligent

driving, and therefore, cannot maintain an application

for compensation. He would also argue that

compensation granted in this case is in the higher side

and should be reduced to only Rs. 2 lacs.

8. Mr. Purohit, the learned counsel appearing for

the claimants, on the other hand, would argue that the

Insurance Cover Note, issued by the Insurance

Company, shows that it is a comprehensive / package

policy and that the owner had paid additional sums for

the occupants of the car. It is also submitted that the

learned Judge presiding the Tribunal has correctly came

to the conclusion that the Insurance Company is liable to

pay beyond Rs. 2 lacs especially in view of the fact that

the Insurance Company has not specifically denied the

liability, and has not produced all the important and

highly relevant policy documents in the Court to show

the exact terms and conditions of the Insurance Policy,

and its liabilities. He would also argue, relying upon

Order 41 Rule 33 of the Code of Civil Procedure, 1908

(hereinafter referred to as the 'Code' for the sake of

brevity), that in case the Court comes to the conclusion

that the compensation is on the lesser side, the

appellate Court, even in the absence of any appeal,

cross appeal or objection, can enhance the

compensation. He would argue that the order passed by

the learned Judge presiding the Tribunal in fixing the

same is erroneous in view of the fact that as per the

judgment passed by a Constitution Bench of the Hon'ble

Supreme Court in National Insurance Company

Limited vs. Pranay Sethi and others, (2017) 16

SCC 680, the compensation regarding future prospect

should be equivalent to 50 per cent, deduction towards

the personal and living expenses of the deceased should

be 1/4th as dependents are more than four (they being

five including the widowed mother of the deceased) and

by employing a lower multiplier, compensation has been

given, whereas the multiplier of 16 is applicable in this

case, and also for giving much less amount for future

prospects, loss of consortium, funeral expenses and loss

of estate, the compensation should be enhanced by the

appellate Court.

9. Thus, on the submissions made by the learned

counsel for the parties, the following three questions fall

for determination in this case:

(I) Whether the Insurance Company's

liability is limited to Rs. 2 lacs only or because

it being a packaged policy, a compensation

beyond Rs. 2 lacs can be awarded?

(II) Whether the appellate Court has the

jurisdiction to enhance the compensation as

claimed by the claimants (respondents herein)

even if they have not preferred any appeal,

cross appeal, or cross objection in the appeal?

(III) Whether the compensation of Rs.

8,41,820.00 along with interest at the rate of

6 per cent per annum is just and proper, or

the same should be enhanced?

10. Coming to the first question, it is apparent

from the records that the Insurance Company has not

filed the original policy issued in favour of the deceased,

rather it has filed some policy documents, which are

blank and have not been signed by anybody. On the

contrary, the claimants (respondents herein) have filed

xerox of Certificate-Cum-Policy Schedule, which reveals

that the deceased has paid Compulsory PA Cover

Premium of Rs. 100 and Additional PA Cover Premium

for five persons at the rate of Rs.250/-. It is also not

disputed in this case that the Insurance Company has

paid compensation to the claimants for the damage to

the vehicle. In that view of the matter, this Court is

inclined to rely upon the judgment rendered by the

Hon'ble Supreme Court in Oriental Insurance

Company Limited vs. Surendra Nath Loomba and

others, (2012) 13 SCC 792, wherein the Hon'ble

Supreme Court has taken into consideration a number of

earlier judgments passed by it including the cases of

National Insurance Company Limited vs.

Balakrishnan and another, (2013) 1 SCC 731 and

the case of United India Insurance Company

Limited, Shimla vs. Tilak Singh and others, (2006)

4 SCC 404. The Hon'ble Supreme Court in Paragraph-9

of the aforesaid case observed that in Tilak Singh

(supra) this Court referred to the concurring opinion

rendered in a three-Judge Bench decision in New India

Assurance Co. Ltd. v. Asha Rani, (2003) 2 SCC 233 and

held that although the observations made in the

aforesaid case were in connection with carrying

passengers in a goods vehicles, the same would apply

with equal force to gratuitous passengers in any other

vehicle also. Thus, the Hon'ble Supreme Court upheld

the contention of the appellant Insurance Company that

it owed no liability towards the injuries suffered by the

deceased who was a pillion rider, as the insurance policy

was a statutory policy, and hence it did not cover the

risk of death of or bodily injury to a gratuitous

passenger. But there is a distinction between a statutory

policy and a comprehensive policy. Therefore, the

Hon'ble Apex Court observed that the original insurance

policy has not been produced by the Insurance Company

in that case and the Certificate-Cum-Policy Schedule has

been filed, which shows that it is a package policy

(private vehicle), so it is not a statutory policy, where

the liability is limited only towards the third party.

11. While considering 'Act Policy' and

'Comprehensive / Package Policy', the judgment

rendered by the Delhi High Court in Yashpal Luthra

and another vs. United India Insurance Company

Limited and another, III, (2010) ACC 130, was

taken note of by the Hon'ble Supreme Court in Oriental

Insurance Company Limited vs. Surendra Nath

Loomba (supra). It is appropriate on the part of this

Court to consider the exact words of this judgment of

the Hon'ble High Court of Delhi to do the complete

justice to the parties in this case. This Court considers it

appropriate to quote Paragraphs 19, 20, 21 and 22

which were also relied upon by the Hon'ble Supreme

Court in the aforesaid case of Surendra Nath

Loomba:-

19. It is extremely important to note here that till 31st December, 2006 Tariff Advisory Committee and thereafter from 1st January, 2007, IRDA functioned as the statutory regulatory authorities and they are entitled to fix the tariff as well as the terms and conditions of the policies by all insurance companies. The High Court had issued notice to the Tariff Advisory Committee and the IRDA to explain the factual position as regards the liability of the insurance companies in respect of an occupant in a private car under the "comprehensive/ package policy". Before the High Court the Competent Authority of IRDA had stated that on 2nd June,

1986 the Tariff Advisory Committee had issued instructions to all the insurance companies to cover the pillion rider of a scooter/motorcycle under the "comprehensive policy" and the said position continues to be in vogue till date. He had also admitted that the comprehensive policy is presently called a package policy. It is the admitted position, as the decision would show, the earlier circulars dated 18th March, 1978 and 2nd June, 1986 continue to be valid and effective and all insurance companies are bound to pay the compensation in respect of the liability towards an occupant in a car under the "comprehensive/package policy"

irrespective of the terms and conditions contained in the policy. The competent authority of the IRDA was also examined before the High Court who stated that the circulars dated 18th March, 1978 and 2nd June, 1986 of the Tariff Advisory Committee were incorporated in the Indian Motor Tariff effective from 1st July, 2002 and they continue to be operative and binding on the insurance companies. Because of the aforesaid factual position the circulars dated 16th November 2009 and 3rd December, 2009, that have been reproduced hereinabove, were issued.

20. It is also worthy to note that the High Court after referring to individual circulars issued by various insurance companies and eventually stated thus:-

"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."

21. 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 than a "Comprehensive/Package Policy". As the circulars have made the position very clear and the IRDA, which is presently the statutory authority, has 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 (supra) 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 the 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.

22. In view of the aforesaid legal position the question that emerges for consideration is whether in the case at hand the policy is an "Act Policy" or "Comprehensive/Package Policy". There has been no discussion either by the tribunal or the High Court in this regard. True it is, before us Annexure P-1 has been filed which is a policy issued by the insurer. It only mentions the policy to be a comprehensive policy but we are inclined to think that there has to be a scanning of the terms of the entire policy to arrive at the conclusion whether it is really a package policy to cover the liability of an occupant in a car."

12. The Insurance Cover Note (Certificate-Cum-Policy

Schedule) that has been filed by the claimants

(respondents herein) shows that the policy was a

package policy and extra premiums were paid for

occupants of the vehicle which is Rs. 350 (Rs. 100 for

Compulsory PA Cover Premium + Rs. 250 for Additional

PA Cover Premium for five persons). Thus, it is

apparent that the vehicle was covered by a package or a

comprehensive policy, and not a statutory policy.

13. As far as the limited liability is concerned, the

original policy has not been filed by the Insurance

Company to show that the liability of the Insurance

Company is limited only to Rs. 2 lacs, though it is

reflected that the limited liability for the third party

property is Rs. 7.5 lacs and P.A. Cover under Section III

for owner-driver is Rs. 2 lacs, but as the entire policy

has not been produced, it will not be proper on the part

of this Court to hold that the liability of the Insurance

Company towards the private vehicle owner would only

be upto Rs. 2 lacs. Moreover, the Driver is not a third

party; he is covered by the policy. In fact, the policy is

a package policy as per the observations made by the

Hon'ble High Court of Delhi, we are of the opinion that

the learned Judge presiding the Tribunal did not commit

any error in interpreting the policy. Hence, the Question

No. I, supra, is answered in favour of the claimants and

against the appellant-Insurance Company.

14. It is seen that Order XLI Rule 33 of the Code

provides for appellate power of the Tribunal. The same

reads as under:-

"33. POWER OF COURT OF APPEAL The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees:

Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to made such order.

Illustration-

A claims a sum of money as due to him from X or Y, and in a suit against both obtains a decree against X. X, appeals, and A and Y are respondents. The Appellate Court decides in favour of X. It has power to pass a decree against Y.

Thus, it is apparent from the aforesaid provision

that even in the absence of an appeal, a cross appeal, or

a cross objection by the claimants, if the Court comes to

the conclusion that the findings recorded on a particular

issue or a particular aspect of the case are incorrect, it

may pass an appropriate order.

15. In this case, this Court relies upon a case of Delhi

Electricity Supply Undertaking vs. Basanti Devi,

AIR 2000 SC 43.

16. This Court also relies on Paragraphs 7 and 8 of the

judgment of the Hon'ble Apex Court in Ranjana

Prakash and others vs. Divisional Manager and

another, (2011) 14 SCC 639, wherein the Hon'ble

Apex Court has observed as under:-

"7. This principle also flows from Order 41 Rule 33 of the Code of Civil Procedure which enables an appellate court to pass any order which ought to have been passed by the trial court and to make such further or other order as the case may require, even if the respondent had not filed any appeal or cross-objections. This power is entrusted to the appellate court to enable it to do complete justice between the parties. Order 41 Rule 33 of the Code can however be pressed into service to make the award more effective or maintain the award on other grounds or to make the other parties to litigation to share the benefits or the liability, but cannot be invoked to get a larger or higher relief. For example, where the claimants seeks compensation against the owner and the insurer of the vehicle and the Tribunal makes the award only against the owner, on an appeal by the owner challenging the quantum, the appellate court can make the insurer jointly and severally liable to pay the compensation, along with the owner, even though the claimants had not challenged the non- grant of relief against the insurer. Be that as it may.

8. Where an appeal is filed challenging the quantum of compensation, irrespective of who files

the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation."

17. Having done so, we have carefully examined the

findings recorded by the learned Tribunal. As far as the

calculation of compensation is concerned, this Court

finds that there are a number of errors in such

calculation. For example, at the time of death, the age

of the deceased was between 30 to 40, hence, the

multiplier of 16 should have been taken, whereas the

learned Judge presiding the Tribunal has adopted the

multiplier of 13. Moreover, as per the judgment

rendered by the Hon'ble Supreme Court in National

Insurance Company Limited vs. Pranay Sethi and

others (supra), the appellant being a regular employee

of the Chief Development Office, the claimants are

entitled to 50% of the salary drawn by him towards the

future prospects. Moreover, the number of dependents

are five in this case, including the widowed mother, the

widow and the children, and, therefore, as per the

Constitution Bench judgment of the aforesaid case, the

total deduction for personal expenses in such case

should have been 1/4th. Thus, the claimants

(respondents herein) are also entitled to receive a sum

of Rs. 15,000/- towards funeral expenses, Rs. 40,000/-

towards loss consortium and Rs. 15,000/- towards the

loss of estate. In that view of the matter, we come to

the conclusion that the calculation of compensation

made by the learned Judge presiding the Tribunal is

erroneous and are to be recalculated as follows:

    Sl.               Particulars                        Amount

Nos.                                                     (in Rs.)

1         Monthly    Basic     Salary    of      the 9332/-

          deceased

2         Future Prospect (50% of the basic 4,666/-

          salary)

                            Total                    13,998/-

Less      1/4th of the Income as the number 3499.5

          of dependents is five.

          Total monthly loss                         10,499




        Total yearly loss                     10,499X 12

                                             =

                                             1,25,988/-

Hence Rs. 1,25,988/- is the yearly loss to the

family of the deceased because of the death of deceased

Pradeep Kumar.

18. The learned Judge presiding the Tribunal has taken

the multiplier of 13. As per the age of the deceased, the

multiplier of 16 should have been taken. If the loss to

the family, i.e. Rs. 1,25,988 is multiplied by 16, then the

resultant sum is Rs. 20,15,808/- which is the total loss

to the family, added to it is the sum of Rs. 70,000/- i.e.

loss of estate, loss of consortium, etc. So, the total

amount comes to Rs. 20,85,808/-, which is rounded off

to Rs. 20,85,000.