•-<! ~ ^- 'f!B i d. ^ ^ .»1 v •\'n. (Tl ? t h y. £. ^' I 1o- ^ t^ rc' co ^ ^* w o p Y) ^ ^ "' i5 o- h-1. p j» m cn w m h-i ^ & p .ff ^ l^) -.1 1 1 ^ '' ^ 4^ 00 ^ § \< co >-!i o .°' ^ & ^ & £ B tign& c 3- p a l—t' Cfl i3- P3 ^ \ ^ ^ ? ^b^ n> t«- ^ ^ 3:1 ^ f ^ ^ ^ ^ ^ z ^ ^ ^ w -l^ cn ^ ^ p- ^.P3 ^^ w & ^ ^ ^ p Sf^ o > 'f M aicr u; ? -» (TO s ^" (S \; 1 Sj' P3 s & < t 1 ? ^ ^ &- >-" P3 y1^ ifr &^ 1t'i 1 S! !t6 \r ^ <It w F- M y (5 ^ P3 tiS £. 'S. ^ tO (11 (Jj CL p ng •6^! IS^^ .g ds :^ 2 to Ccn d. ^f ^.^^ ?.3'§' 5- 4^. cn 1 CO 1 ^ 11i ^ & in !<"> ls lo' l^ ^ ^s M Qo <0 8 1 sI 3I 0 1 10 1"1 11@ \^^> ^J ^<1 -2- APPEAL U/S 173 M. V. ACT •^siL. ^ HIGH COURT OF CHHATTISGARH : BILASPUR M. A. (0 No. 1056 of 2009 Appellants Vipul Kedia 8s another Versus Respondents Smt. Kamlesh Kedia & others And M. A. (0 No. 1297 of 2009 Appellant Smt. Kamlesh Kedia Versus Respondents Vipul Kedia 85 others APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988 DB: Hon'ble Shri Justice I. M. Quddusi SE Hon'ble Shri Jusdce Prashant Kuniar Mishra, JJ Shri V. K. Sharma, Advocate for the appellants/driver 85 owner and Shri Anand Gupta, Advocate for the respondent No.6/Insurance Company in M.A.(C) No. 1056/2009. Shri Avinash Mishra, Advocate for the appellant/claimant and Shri Deepak Gupfa, Advocate for the respondent No.S/Insurance Company in M.A.(C) No. 1297/2009. ORDER (Oral) ( Passed on this 28th day of February, 2011 ) Per I. M. Quddusi, J. 1. These two appeals arise from the impugned award dated 30fh April, 2009, passed by the Second Additional Motor Accident Claims Tribunal (FTC), Janjgir in Claim Case (MACT) No. 2/2009, awarding a sum-of Rs. 3,14,000/- to the claimants No. 1 and 2, fixing fhe liability on the driver and owner to pay the cOmpensatlon, jointly or severally, exonerating the insurance company from any liability to pay the amount of 1 . compensation. n^ "siaa!iviv-a' 2. The M.A.(C) No. 1056/2009 has been filed by the driver and owner of the offending vehicle and M.A.(C) No. 1297/2009 has been filed by the claimant for enhancement of the amount of compensation. 3. The insurance company was exonerated by the Clairus Tribunal on the ground that extra premiuni for occupants of the private car was not paid hence the insurance company was not liable. 4. The, brief facts, in nutshell, are that on 9.11.2007 in the night at about 11.45 p.m. deceased Namit Kedia along with his friends namely Sourabh Shabarwal, Vipul Kedia, Raghav Kedia and Pranay Agarwal was going in a car, bearing registration No. C.G. 10 BB/4499 from Akaltara to Janjgir. The vehicle was being driven by the non-applicant No.l and it was owned by the non-applicant No.2. At about 1.10 a.m. near village Tilai Samrat Dhaba on the national highway, due to rash and negligent driving by the non-applicant No.l the car met with an accident as a result of which almost all the passengers received grievous injuries. On the way to the hospital Namit Kedia succumbed to the injuries. 5. The claimants, being legal heirs (mother, father, two brother and one sister) of the deceased filed a claim petition under Section 166 of the Motor Vehicles Act for award of a total compensation of45,00,000/- undervarious heads. 6. Learned Claims Tribunal having regard to. the facts situation and the evidence on record awarded a total compensation of Rs. 3,14,000/- only to the clairuants No. 1 and 2 i.e. parents of the 'deceased, directing the non-applicants No. 1 and 2 i.e. , driver and owner to pay the amount of compensation jointly or / 3^^w?^ l"!<k \ ''WSatSy •' ^ '«"-'y .'wsS' severally, exonerating the insurance company from any liability. 7. We have heard -leamed counsel appearing for the parties, perused the impugned award and the papers available on record. 8. The statement of the official of the insuranee corupany, namely Shri V. Tirki S/o Shri B. Tirki, Administradve Qfficer in the New India Assurance Company Limited was recorded. He has stated in paragraph 9 of his cross-examination that the insurance of the car was made by the insurance company under the car package policy. The policy which is available on record also shows that it was a package policy. The deceased was the occupant of the car. 9. Our attention was invited towards the circular of the Insurance Regulator and Development Authority (IRDA) dated 3rd December, 2009, issued to all the CEOs of all General Insurance Companies, in which the decision taken on 16th November, 2009 by the IRDA was reiterated. This circular reads as under: "Pursuant to the order of the Delhi High Court dated 23.11.2009 in MAC APP No. 176/209 in the case of Yashpal Luthra Vs. United India & Others, the Authority convened a meeting on November 26, 2009 of the CEOs of al the general insurance companies doing motor insurance business in the presence of the counsel appearing on behalf of the Authority and the learned amicus curie. Based on the unanimous decision taken in the nieeting by the representative of the general insurance companies to comply with the IRDA circular dated 16th November, 2009 restating the position relating to the liability of all the general insurance companies doing motor insurance f^^ • ^it'^.^ "*»i;- '•••c^^-^-^-^ •i '"K. '•y'^-f-' '3'.- business in respect of the occupants in a private car and pillion rider on a two wheeler under the comprehensive/package policies which was communicated to the court on fhe same day i.e. November 26, 2009 and the court was pleased to pass the order (dt. 26.11.2009) received from the Court Master, Delhi High Court, is enclosed foryour ready reference and adherence. In terms of the sajid order and the admitted liability of all the general insurance companies doing motor insurance business in respect of the occupants in a private car and pillion rider on a two-wheeler under the comprehensive/package policies, you are advised to cqnfirm to the Authority, strict compliance of the circular dated 16U1 November, 2009 and orders dt. 26.11.2009 of the High Court. Such compliance on your part would also involve. (i) withdrawing the plea against such a contest wherever taken in the cases pending before the MACT, and issue appropriate instructions to their respective lawyers and the operating officers within 7 days. (ii) With respect tp all appeals pending before the High Courts on this point, issuing instructions within 7 days to the respective operating officers and the counsels to withdraw fhe contest on this ground which would require identification of the number of appeals pending before the High Courts (whether filed by the clainiants or the insurers) on this issue within a period of 2 weeks and the contest on this ground being withdrawn within a period of four weeks thereafter. (iii) With respect to the appeals' pending before the Hon'ble Supreme Court, informing, within a period of 7 days, their respective Advocates on record about the IRDA Circulars, for appropriate advice and action." / ""•\ / ^ /. f-t 10. In view of the above circular, admittedly the liability is of the insurance company and not of the owner when it was a package policy and the insurance company cannot eseape from its liability on the ground that no extra premium was paid for the passenger of the car when it was a package policy. 11. With regard to the calculation made by the Claims Tribunal regarding quantum we have found that copy of the income tax retum, which was filed after death of the deceased, was field before the Tribunal but prior to his death i.e. copy of the income tax retum for the previous years was not filed. However, the Tribunal has deducted l/3rd on the personal and living expenses of the deceased, whereas the deceased was a bachelor. Therefore, 50% should have been deducted on this count. 12. In the instant case, since the insurance company has been exonerated and the appeal is filed by the driver and owner of the car, insurance ofwhich was covered under package policy, we are of the opinion that the matter should be remanded back to the Claims Tribunal for reconsideration and to give its findings afresh on the point of liability as well as on quantum. 13. For the reasons stated herein above, we dispose of both the appeals setting aside the impugned award date.d 30.4.2009 and remit back the matter to the Tribunal for decision afresh. No order as to costs. 14. Needless to mention that the parties shall be allowed to amend their pleadings, adduce further evidence again in support of their pleadings and may file further documents and get the / .^ ^'"^^ ^ •SiseStS'vi, I ^ ' -•'•s"7si'!'i^?^'-^; ' • . •^.. 't-y 15. 16. 17. Thakur docuinents verified etc. Thereafter, the decision shall be inade by the Tribunal ih regard to the liability as well as the quantum without being inHuenced by its earlier decision, as we have not examined the question of quantuni; it depends upon the evidence to be led by the parties. The parties shall appear before the Claims Tribunal concerned on5aIApril, 2011. The lower court's record shall be sent back without any delay. If any deposit is made by the owner or the insurance company the same shall remain in deposit till the fresh decision is taken. ^l _, . _ . . . • Sd'- I.M.Quddusi Judge Prashant Kumar Mishra Judge ^BEGi^IS a ^a dafc ^ "