.(^; c^^ IN THE HIGH COURT JUDICA1 Misc. Appeal rCI No. ^S^ OF 2009 MiiiiffispuR. APPELLANT /INSURER i..^-'°iu :.^'!^^ ^<^<^!ss^r ^•^•y^ .'•••"L^' / ^'"- RESPONbENTS :;LAIMANTS OWNER ^- ^ ^ ^ Bajaj Allianz Insurance Company Limited, through Branch Manager, Shivmohan Bhawan, Vidhansabha Marg, Pandri, Raipur (C.G.) Versys Smt. Malti Bai beshmukh W/o Late Shri Ramddyal beshmukh, aged about 35 years. Ku. Gaytri Oeshmukh, b/o Late Shri Ramdayal Deshmukh, aged about 18 years. Parmeshwar DeshmukhS/o Late Shri Ramdayal Deshmukh, aged about 16 years. Ritesh Kumar S/o Late Shri Ramdayal beshmukh, aged about 12 years. Respondent No. 3 <& 4 Minor, , Through natural guardian Smt. Malti Bai beshmukh W/o Late Shri Ramdayal Deshmukh Both residents of Village Pisegao, Abadi para, ward No. 6, Police Station Poolgaon, Tahsil <& bistrict burg (C.G.) Mahesh Kumar Deshmukh S/o G. P. beshmukh aged about 35 years, R/o Village Pisegao, Abadi para, ward No. 6, Police Station Poolgaon, Tahsil <& District burg (C.6.) J^^. i ^ .;.«^~' r- APP6AL U/S 173 OF THE MOTOR VEHICLES^ACT AGAlNST THE •^' ../• :^;.:- AWARD/ORDER DATED 317J0.2008 PASSEb BY SHRI RAVISHANKAR SHARMA. THE ^l ADbITEONAL MOTOR ACCIDENT CLAIMS TRIBUNAL fF.T.C.) DURG. (C.G.) IN ^^ C.T.N0.125?2007 ^" *~~? 1)0 HjGH COURT OF CHHATTISGARH AT BILASPUR DB: Hon'ble Shri Justice I.M Quddusi. & Hon'ble Shri Justice Prashant Kumar IVIishra. JJ. M.A. (Cl No 153 of 2009 Bajaj Allianz Insurance Company. Versus Smt. MaKi Bai Deshmukh and others. JUDGMENT FOR CONSIDERATSON Sd/- PrashantKumarMishra Judge Hon'ble Shri I.M. Quddusi. J. ^MZ-C^^I Sd/- I.M.Quddusi Judge j^-04-2011 Postfor )5- 04-2011 Sd/- Prashant Kumar Mishra Judge %- ^,^^^ ^ HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri I.JVI. Quddusi, J. & Hon'ble Shri Prashant Kumar Mishra, J. M.A.faNo.153of2009 APPELLANT Bajaj AIIJanz Insurance Company Limited. Versus RESPONDENTS Smt Malti Bai Deshmukh and others. Shri Abhishek Sinha, counsel for the appellant. Shri Gautem Khetrapal, counsel for respondents No, 1 to 4. JUDGMENT ( |9 /o^/2011) Per Prashant Kumar Mishra. J. In this appeal under Section 173 of the Motor Vehicles Act preferred by the Insurance Company, challenge has been made to the award passed by the XI Additional Motor Acddent Claims Tribunal (F.T.C.), Durg awarding compensation of Rs.6,60.156/- in favour of respondent No.1 to 4/daimants and at the same time fastening the liability of payment of compensation on the appellant/Jnsurance Company. The appellant has challenged the award on thequestion of Jiability as well as the quantum thereof. (2) Brief facts of the case, as stated in the claim petition, are that deceased Ramdayal Deshmukh was traveling as a pilljon-rider in motorcycle bearing registration No. C.G.07- LF/1660 on 31/12/2006. In between Durg to Pisegaon. when they reached near Chhatrapati Shivaji College, the said motorcycle was hit by an unknown Metador and there was a head on collision. as a result of which deceased suffered grievous imuries on his head and ultimately died in course of treatment. The [deceased was aged about 29 years, working as Mason (Rajmistri), ^^sp^ /^ ^-^...'^^^' '^^^ ^- eaming Rs.8,000/- per month. The claimants claimed total compensation of Rs.22.32.000/- on different heads. (3) The owner of the vehicle, in his reply, stated that the accident occurred due to rash and negligent driving of the driver of the unknown Metador and the F.I.R. was also registered against the said unknown driver and thus he is not liable to pay any compensation. The appellant/lnsurance Company, in its reply, pleaded that the deceased was a pillion-rider and he was not covered under the policy because no extra premium was paid covering the risk of the pillion-rider and there being no statutory coverage covering risk of pillion-rider, the Insurance Company is not liable to pay any compensation. It was further stated that the deceased was not a third party, therefore claim petition was not maintainable. (4) The claims Tribunal recorded the finding that the accident had taken place on account of involvement of the motorcycle which was driven rashly and negligently by the driver of the motorcycle. Jt has also held that the policy covers the pillion-rider and therefore the Insurance Company is liable to indemnify the jnsured. (5) With regard to the nature of policy this Court has examined the insurance policy Ex.D/1 and it is found that the said policy was a comprehensive policy. In the circular issued by the Insuranc'e Regulatory and D©velopmontAuthority (IRDA) vid©its circular dated 16th Novembor, 2009 issued to all CEOs of General Insurance Companies, the following has been provided:- "INSURANCE REGULATORY AND DEVELOPMENT AUTHORmf Ref:lRDA/NUCIRff;&U/073/11/2009/ To CECte of all General Insurance Companies November 16,200Q. -3~ Re : Liability of Insurance ComjKinies in respect of Occupant of a Private Car and Pillion Rider in a Two-Wheeter under Standard IVIotor Package Policy [also called Comprehensive Policy] Insurers' attention Is drawn to wordings of Seotion (11)1 (i) of Standard Motor Package Policy (also called Comprehensive Poticy) for private Car and Two-Wheeter under the (erstv^/hiie) India Motor Tariff. For convenience the relevant provisions are reproduced hereunder: "Section II- Liability to Third Parties 1. Subject to the limits of liabiiity as laid down in the Schedule hereto the Company will indemnify the insured in the event of an accident caused by or arising out of the use of the insured vehicfe against all sums which the insured shall become legally liable to pay in respect of- (i) death or bodily injury to any person induding occupants carried in the vehicte [provided such occupants are not carried for hire or reward] but except so far as it is necessary to meet the requirements of Motor Vehictes Act, the Company shall not be liablewhere suchdeath or injury arises out of and in the course of employment of such person by the insured." It is further brought to the attention of insurers that the above provisions are in line with the fotfowing circulars eartier issued by the TarifF Advisory Committee on the subject: (i) Circular M.V. No.1 of 1978 - dated 18th March 1978 [regarding occupants carried in Private Car] effective from 25th Maroh 1977. (ii) MOT/GEN/10 dated 2nd June 1986 [regarding Pillion Riders in a Two- Wheeler] effective from the date of the circular. The above circulars make it ctear that the Insured's liability in respect of Oocupant(s) carried in a Private Car and Pillion Rider carried on Two- wheeter is covered under the Standard Motor Package Policy. A copy each ofthe above circulars is encloseci for ready reference. < The Authority vide circular no. 066/IRDA/F&U/Mar-08 dated March 26, 2008 tesued under Fite & Use Guidelines has reiterated that pending further orders the insurers shajl not vary the coverage, terms and conditjons, wordings. warranties, clauses and encforsements in respect of covers that were under the erstwhile tariffs. Further the Authority, vide circular no.019/IRDA/NL/F&U/Oct-08 dated November 6, 2008 has mandated that insurers are not permitted to abridge the scope of standard covers availabte under the erstwhile tariffs beyond the options permitted in the erstwhiie tariffs. All Generai Insurers are advised to adhere to the aforementioned circulars and any non-compliance ofthe same would be viewed seriously by the Authority. IThis is issued with the approval of Competent Authority. Sd/- (Prabodh Chander) Executive Director11 u' ^:-.^..;-^<.-ra,?^^^-'^rw5^^5s.^ 1 ' • '. - - ' ^ .5y;ff^?%:r^7S^CT'^^--'~?S^-.:?:S%3^'S^^ '^'^ r^^ ,-^- (6) In view of the above, this Court is of the opinion fhat when the subject motorcycle/two wheeler is covered under the comprehensive policy, the pillion-rider would be treated as covered under the policy. (7) Learned counsel for the appeltant has submitted that on account of the accident the criminal case was registered against the driver of the unknown Metador, therefore the driver of the motorcycle was not responsible and the claim petition under Section 166 of the Motor Vehicles Act was not maintainable. In the present case merg intimation (Ex.P/6) was recorded on the information of one Mohan Lal Nishad at about 21:00 hours (9:00 p.m.) on 31/12/2006 and on the basi's of this merg intimation the F.1.R. was registered. Copy of the first page of the final report has been exhibited as Ex.P/1. however copy of the F.I.R. is not available on record. In fhe description of accident mentioned in paragraph 17 of the final report (Ex.P/1) it has been stated that the Metador was driven rashly and negligently. Since the Metador was not known and could not be traced during investigation, the police has not fiied any charge-sheet against the driver of the Metador and as such list ofwitnesses are also not available along with the final report (Ex.P/1). (8) Before the Tribunal claimant Malti Bai examined herself as AW-1 and she has stated that driver of the motorcycle was driving in a rash and negligent manner. AW-2 Narayan Deshmukh is a witness who happen to meet Mahesh Deshmukh and deceased Ramdayal Deshmukh at Anand Hotel and all of them enjoyed cup of tea and thereafter Mahesh proceeded ahead because this witness was on bicycle. This witness has stated that Mahesh was driving the motorcyde in a rash and negligent manner and dashed against the Metador which was coming from the opposite side. In the cross-examination it is revealed that this witness is 1 the uncle of Mahesh Deshmukh (driver of the mptorcycle). He has denied ""^i-i--::' sros?5'"s3?~~-V-^;^ •:::y^'y^{^^-:'f^~^v^-'-^ ^.^.s..^.2._. •'.-£®S^-^A^-..-. ///"""""-, \ s ^^ •^ the suggestion that he has not witnessed the accident. This witness further denies that police has not recorded his statement however his statement recorded under Section 166 of the Cr.P.C. is not on record. The Insurance Company has examined its Legal Executive Mr. Vikas Khande as NAW-1 and Head Constable Amin Singh was examined as NAW-2. This Head Constable had conducted the investigation and has written the final report and other documents likes seizure memo etc. from Ex.P/1 to Ex.P/8. In his examination in chief he has stated that he cannot say as to who was negligent is causing the accident. (9) Thus from the above appreciation of the evidence it emerges that the statement of witness recorded under Section 161 of Cr. P. C. during investjgation of the criminal case is not available on record and the only evidence giving eye witness account of the accident is that of AW-2 Narayan Deshmukh. Thts witness has been cross-examined by the non- claimant No.1 j.e. the owner/driver of the motorcycle as well as by the Insurance Company and they have failed to extract any material statement from this witness that he has not witnessed the accident. In the absence of the examination of the person namely Mohan Lal Nishad who informed about the accident and on whose information the merg intimation was recorded, the only evidence which is available on record giving eye witness account of the accident is that of AW-2 Narayan Deshmukh and this Court has no hesjtation in accepting his statement to hold that the driver of the motorcycle was driving the vehicle in a rash and negljgent manner and was responsible for causing the accident. » (10) None of the parties to the claim petitjon have filed the spot map prepared by the prosecution in course of investigation: therefore there is no other evidence except that of AW-2 Narayan Deshmukh about the 'manner in which accident has taken place. True i"t is, that the merg M1 /^\ intimation has been exhibjted, however, the person who submitted this information to the police has not been examined and as such the contents of the merg jntimation has not been subjected to the cross-examination before the Tribunal. (11) Learned counsel for the appellant has submitted that in view of the law laid-down by the Hon'ble Supreme Court in the matter of Oriental Insurance Co. Ltd. vs. Premlata Shukla and others reported in 2007 AIR SCW 3591, once the F.1.R. (in the present case merg intimatjon report) has been exhibited. it has to be read in jts entirety. In para 14 of the judgment in Premlata Shukla (supra) the Hon'ble Supreme Court has held that "if the contents have been proved, the question of refiance thereupon oniy upon a part thereofand not upon the rest, on thetechnical ground that fhe same had not been proved in accordance with faw. woufd notarise". In the present case. the person who gave information to the poiice has not been examined. The constable who has written the contents has been examined as NAW-2 but jn his examjnation-in-chief he says that he is not able to state as to who was responsible for causing the accident. From the final report it appears that since the driver of the Metador was not known, a charge-sheet has not been filed. Statement of witnesses recorded under Section 161 of Cr.P.C. js not availabie on record. Thus, mere marking of exhibits of a document would not prove the contents thereof in the absence of examination of the person on whose information merg jnformation was recorded. (12) In the matter of Sait Tarajee Khimchand and others vs. Yelamarti Satyam and others reported in AIR 1971 SC 1865 the Hon'ble Supreme Court has held that mere marking of a document as an exhibit does not dispense with jts proof. ^^;.,"'% -.7" (13) in the matter of Pammi alias Brijendra Singh vs. Government of Madhya Pradesh reported in AIR 1998 SC 1185 the Hon'ble Supreme Court has held that reliance placed by the Sessions Court on a copy of deposition of a person recorded in another crimjnal case is wrong in the absence of the person whose deposition was relied on having been examined in the Court. in the present case also the informant on whoseinformation merg intimation was recorded has not been examined. (14) From the above discussion, this Court has no hesitation in holding that the driver ofthe motorcycle was responsibJe for causing the accident. (15) The appeilant has also questioned the quantum of the compensation awarded to the claimants. Jn this regard it is to be seen that the application filed by the appellant under Se&tion 170 of the Motor Vehides Act, 1988 was rejected by the Tribunal on 17/11/2€X)7 on the ground thatthe owner and driver ofthe motorcyde i.e. non-claimant No.1 has entered appearance and is contesting the claim petition. therefore, permsssion under Section 170 of the Motor Vehicles Act cannot be granted. Learned counsel for the appellant has submitted that subsequent to thjs order the respondents No. 1 has not effectively participated and contested, therefore the rejection of application under Section 170 of the Act was itself illegal. On perusal of the record, jt would appear that the non-claimant No.1 has filed his written statement and has cross-examined the eye witness i.e. AW-2 Narayan Deshmukh and his counsel has appeared in almostall dates of hearing in the Court below. Thus it can not be said that application under Section 170 of the Act was x . . . 'wrongly rejected. ;T A -g- (16) In the matter of National Insurance Co. Ud. Vs. Mastan and another reported in 2006 (2) SCC 641. the Hon'bte Supreme Court has held that in the absence of permission under Section 1 70 of the Motor Vehicles Act, it is not permissible for Insurance Company to raise an argument regarding the quantum of compensation being excessive. Thus, this Court is ofthe opinion that the appellant/lnsurance Company js not entitled to challenge the quantum of compensation awarded Jn favour of the claimants. (17) In view of the above, the instant appeal fajls and is hereby dismissed. — Sd/- LM.Quddusi Judge Sd/- prashaa^ar^ 1 ':I:' ^^^SmT%StS^S5-:e-gSSSSS>^?os^'~'K-:"