INTHE HON'BLE HIGH COURT OF GHHATTISHGARH AT BILASPUR M.A.(C) No.- 1510 ^—f^^ APPELLANT P.R. {Sa- THE ORIENTAL INSURANCE CO. LTD., THROUGH MANAGER THE ORIENTAL 'B^^J.0?-""*"^ INSURANCE CO. LTD., BRANCH OFFICE, MALVIYA NAGAR DURG, TAH. & DISTT.- DURG C.G. Vrs. presented hy Shri .T;.^"u^ ,(.^.^--- RESPONDENTS :-1. BASANT KUMAR SAHU S/0 DHANESHRAM SAHU AGE ABOUT 48 YRS., 2. SMT.CMAW/OBASANTKUMAR SAHUAGE ABOUT 41YRS, RESPONDENT N0.- 1 & 2 RESIDENT OF - 37 B, RUABANDHA SECTOR, THANA- NEWAI, TAHSIL &DISTT.-DURG (CHHATTISGARH) 3. LAXMI NARAYAN DUBEY S/0 JAGDISH PRASAD DUBEY, R/0 GOPAL MANDIR ROAD, BAIGAPARA , DURG, TAHSIL & DISTT.- DURG C.G. APPEAL UNDER SECTION 173 OF MQTOR VEHICLE ACT 1988 A N<, HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta^^.J. & Hon'ble^irl Sunil Kumar Sinha, J. APPELLANT RESPONDENTS ^> APPELLANT RESPONDENTS M.A.(C) No. 537 of 2008 The Oriental InsuranceCompany Ltd., Through Manger The Oriental InsuranceCompany Ltd., Branch office Malviya Nagar, Durg, Tah. & District- Durg, C.G. Versus 1. Dhanesh Ram Sahu S/o Ghasiram Sahu, Age 70 yrs. 2. Anusuiya W/o Dhanesh Ram Sahu Age 65 yrs. Both Resident of 37D, Ruabandha Sector, Bhilai, Thana- Newai, Tah. & District-Durg (C.G.) 3. Laxminarayan Dubey S/o Jagdish Prasad Dubey, Resident of Gopal Mandir Road, Baigapara,Durg, Tahsil & Distt- Durg C.G. With M.A.(Cl No. 550 of 2008 The Orientat Insurance Company Ltd., Through Manger The Oriental Insurance Company Ltd., Branch office Malviya Nagar, Durg, Tah. & District- Durg, C.G. Versus 1. Dhanesh Ram Sahu S/o Ghasiram Sahu, Age 70yrs. 2. Anusuiya W/o Dhanesh Ram SahuAge 65 yrs. Both Resident of 37D, Ruabandha Sector, Bhilai, Thana- Newai, Tah. & District- Durg (C.G.) 3. Laxminarayan Dubey S/o Jagdish Prasad Dubey, Resident of Gopal Mandir Road, Baigapara, Durg, Tahsil & Distt.- Durg C.G. M.A.CC') Nos. 537/2008: 550/2008; 576/2008; 587/2008: 593/2008; 698/2008; 805/2008: 1562/2008 & 427/2009 APPELLANT RESPONDENTS APPELLANT RESPONDENTS With M.A.(Cl No. 576 of 2008 The Oriental Insurance Company Ltd., Through Manger The Oriental Insurdnce Company Ltd., Branch office Malviya Nagar, Durg, Tah. & District- Durg, C.G. Versus 1. Kanhaiya Lal S/o Late Jairam Sahu, age about 53 years 2. Monika Sahu D/o Kanhaiya La,l age about 17yrs. 3. Archana Sahu D/o Kanhaiya Lal, age about 15yrs. 4. Pooja Sahu D/o Kanhaiya Lal, ^ige about 13 yrs 5. Milind Kumar S/o Kanhaiya Lal, age about 10 yrs For minorrespondents 2 to 5, through guardian father Kanhaiya Lal S/o Late Jairam Sahu Respondents 1 to 5 residents of Ruabandha Sector Bhilai, Thana- Newai, Tahsil & Distt.- Durg (C.G.) 6. Laxminarayan Dubey S/o Jagdish Prasad Dubey, R/o Gopal Mandir Road, Baigapara, Durg, Tahsil & Distt.- Durg C.G. With M.A.fONo. 587 of 2008 The Oriental Insurance Company Ltd., Through Manger The Oriental Insurance Company Ltd., Branch office Malviya Nagar, Durg, Tah. & District Durg, C.G. Versus 1. Dhanesh Ram Sahu S/o Ghasiram Sahu, Age 70 yrs. 2. Anusuiya W/o Dhanesh Ram Sahu Age 65 yrs. Both Resident of 37D, Ruabandha ^' ^ M.A.CC') Nos. 537/2008: 550/2008; 576/2008; 587/2008; 593/2008; 698/2008; 805/2008: 1562/2008 & 427/2009 Sector, Bhilai, Thana- Newai, Tah. & District- Durg (C.G.) 3. Laxminarayan Dubey S/o Jagdish Prasad Dubey, Resident of Gopal Mandir Road, Baigapara, Durg, Tahsil & Distt.- Durg C.G. With M.A.(C) No. 593 of 2008 The Oriental Insurance Company Ltd., Through Manger The Oriental Insurance Company Ltd., Branch office Malviya Nagar, Durg, Tah. & District- Durg, C.G. Versus 1. Manoj S/o Dhanesh Ram Sahu, age about 42 yrs., R/o- 37 D, Ruabandha Sector, Thana- Newai, Tahsil & District- Durg, C.G. 2. Laxminarayan Dubey S/o Jagdish Prasad Dubey, Resident of Gopal Mandir Road, Baigapara, Durg, Tahsil & Distt.- Durg C.G. APPELLANT RESPONDENTS ^ APPELLANT RESPONDENTS With M.A.(C) No. 698 of 2008 The Oriental Insurance Company Ltd., Through Manger The Oriental Insurance Company Ltd., Branch office Malviya Nagar, Durg, Tah. & District- Durg, C.G. Versus 1. Dhanesh Ram Sahu S/o Ghasiram Sahu, Age 70 yrs. 2. Anusuiya W/o Dhanesh Ram Sahu Age 65 yrs. 3. Ankit S/o Late Rakesh Kumar Sahu, Age about 07 yrs. 4. Nikita D/o Late Rakesh Kumar Sahu, age about 05 yrs. Respondents No. 3 &4, Minor through guardian grand father Dhanesh S/o Ghasiram Sahu, All resident of 37D, M.A.fC) Nos. 537/2008; 550/2008; 576/2008; 587/2008: 593/2008: 698/2008; 805/2008; 1562/2008 & 427/2009 APPELLANT RESPONDENTS Ruabandha Sector, Bhilai, Tah. & District- Durg (C.G.) 5. Laxminarayan Dubey S/o Jagdish Prasad Dubey, Resident of Gopal Mandir Road, Baigapara, Durg, Tahsil & Distt.- Durg C.G. With M.A.fONo. 805 of 2008 The Oriental Insurance Company Ltd., Through Manger The Oriental Insurance Company Ltd., Branch office Malviya Nagar, Durg, Tah. & District- Durg, C.G. Versus 1. Ankit S/o Late Rakesh Kumar Sahu, age about 07 yrs. l 2. Nikita D/o Late Rakesh Kumar Sahu, age about 05 yrs. Minor Respondents No.1 & 2, Through guardian grand-father Dhanesh S/o Ghasiram Sahu, age 70 yrs., Resident of 37D, Ruabandha Sector, Bhilai, Thana- Newai, Tah. & District Durg, C.G. 3. Laxminarayan Dubey S/o Jagdish Prasad Dubey, Resident of Gopal Mandir Road, Baigapara, Durg, Tahsi! & Distt.-Durg C.G. APPELLANT RESPONDENTS With M.A.fClNo.l 562 of 2008 The Oriental Insurance Company Ltd., Through Manger The Oriental Insurance Company Ltd.,Branch office Malviya Nagar, Durg, Tah. & District- Durg, C.G. Versus 1. Basant Kumar Sahu S/o Dhanesh Ram Sahu, age about 48 yrs. 2. Smt. Uma W/o Basant Kumar Sahu, age about41 yrs. Respondents No. 1 & 2 Resident of r"' M.A.CC') Nos. 537/2008: 550/2008: 576/2008: 587/2008: 593/2008: 698/2008; 805/2008: 1562/2008 & 427/2009 ^ ^ APPELLANT RESPONDENTS 37D, Ruabandha Sector, Thana- Newai, Tahsil & District Durg, C.G. 3. Laxminarayan Dubey S/o Jagdish Prasad Dubey, Resident of Gopal Mandir Road, Baigapara, Durg, TahsiJ & Distt- Durg C.G. And M.A.(C)No. 427 of 2009 The Oriental Insurance Company Ltd., Through Manger The Oriental Insurance Company Ltd., Branch office Malviya Nagar, Durg, Tah. & District- Durg, C.G. Versus 1. Manoj Sahu S/o Dhanesh Ram Sahu, Age about 42 yrs., R/o 37D, Ruabandha Sector, Thana- Newai, Tahsil & District Durg, C.G. 2. Laxminarayan Dubey S/o Jagdish Prasad Dubey, Resident of Gopal Mandir Road, Baigapara, Durg, Tahsil & Distt.-Durg C.G. MISC. APPEALS UNDER SECTION 173 OF THE MOTOR VEHICLES ACT.1988 Appearance: Mr.Sudhir Agrawal, Advocate for the appellant/lnsurance Company. Mr. Gautam Khetrapal, Advocate for the claimants. Mr. Dinesh R.K. Tiwari, Advocate for the owner ofthe vehicle. JUDGMENT (3 .02.2010) Following judgment of the Court was delivered by Sunil Kumar Sinha. J. (1) These appeals have been filed bythe Insurance Company, u/s 173 ofthe MotorVehiclesAct, 1988, againstthe award(s) passed bythe Ninth Additional Motor Accident Claims Tribunal (F.T.C.), Durg in nine different MA/ONos. 537/2008; 550/2008; 576/2008: 587/2008: 593/2008: 698/2008; 805/2008; 1562/2008 & 427/2009 ClaimCases arising out of a common accident, whereby, the Insurance Company has been held liable for payment of compensation to the claimant(s) in the following manner:- J. (2) The facts, briefly stated, are as under:- The claimant(s) filed Claim Petition(s) u/s166 of the Motor VehiclesAct claiming compensation on account of death of the deceased persons in the motor accident which took place on 8.11.2003, when Tata Sumo Specio vehicle bearing registration No. C.G.-07/2620, on which the deceased personswere traveling, met with an accident on account of rash and negligent driving of the said vehicle by its driver. The claimant(s) pleaded that on 8.11.2003, thesaid vehicle was called by one of the deceased namely Rakesh Kumar'Sahu, who was a close friend of the owner of the vehicte namely Laxminarayan Dubey, for going to Jagdalpur for Dew-Dars/pan. The accident took place on the way from Bhilai to Jagdalpur. The driver namely Sanjay Kumar Sahu alsodiedin the accident. 81. No. Misc. Appeal (C) number Claim Case number Award dated Awarded amountRs 1. M.A.(C) No. 537/08 148/2005 22.12.2007 1,24,500/- 2. M.A.(C) No. 550/08 150/2005 22.12.2007 1,84,500/- 3. M.A.(C) No. 576/08 149/2005 27.08.2007 1,89,500/- 4. M.A.(C) No. 587/08 147/2005 22.12.2007 74,5007- 5. M.A.(C) No. 593/08 143/2005 27.08.2007 1,72,000/- 6. M.A.(C) No. 698/08 144/2005 22.12.2007 9,69,428/- 7. M.A.(C) No. 805/08 146/2005 22.12.2007 4,42,500/- 8. M.A.(C)No. 1562/08 145/2005 27.08.2007 1,94,500/- 9. M.A.(C) No. 427/09 151/2005 27.08.2007 4,99,420/- M.A.CC) Nos. 537/2008: 550/2008: 576/2008: 587/2008; 593/2008; 698/2008; 805/2008: 1562/2008 & 427/2009 Different amount(s) were claimed by the claimant(s), however, the respective amount(s) shown in the Table (supra) were awarded to them by different award(s). The Claim Petition filed by the dependents of the driver was dismissed by the Tribunal. The owner filed his written statement accepting the factum of accident and the insuranceof the vehicle. However, he opposed the claims on the ground that exaggerated amount(s) were claimed by the claimant(s). The appellant/lnsurance Company also filed its written statement. While admitting the factumof insurance of the vehicle with their Company, they pleaded that the vehicle was being plied in breach of policy conditions. It was contended that the vehicle was insured for personal use, whereas, it was being used as a taxi at the time of the accident. They also pleaded that the policy of the insurance covers the risk of 10 persons, whereas, 14 persons were traveling in the vehicle at the time of the accident, therefore, the appellanVlnsurance Company was not liable to pay compensation to the claimant(s). No permission u/s 170 ofthe Motor Vehicles Act was granted to the InsuranceCompany. The Claims Tribunal held that the accident occurred on account of rash and negligent driving of the offending vehicle by its driver; the vehicle was not being used as a taxi; and the Insurance Company was liable to pay compensation. (3) Mr. Sudhir Agrawal, learned counsel appearing on behalf of the appellant/Insurance Company, very fairly submitted that though no extra premium was paid for covering the risk of occupants of the vehicle but he is not pressing this ground on account ofrecent circular dated 25.11.2009 of the Head Office, New Delhi as the vehicle was insured under Motor Package Policy also called as ComprehensivePolicy. Circular dated 25 •^f'yvs'K'w. .-^3-i».'s ^' 8 M.A.fQ Nos. 537/2008: 550/2008: 576/2008: 587/2008; 593/2008; 698/2008: 805/2008: 1562/2008 & 427/2009 November 2009 issued by the Head Office of the appellanVlnsurance Company reads as under:- "THE ORIENTAL INSURANCE COMPANY LTD., HEAD OFFICE NEW DELHI DEPTT.: MOTOR Dated 25thNovember 2009 CIRCULAR N0. HO/MOT(U/W)/282/2008-09/CR-6473 CIRCULAR TO ALL BOs/Dos/ROs, I.A.D, VIGILANCE DEPTT., IT DEPTT. OSTC, ALL DEPTTS. OF H.O. & C.M.D'S SECTT./SERVICE CENTRE AT HANSALAYA & HYDERABAD LIABIUT«rOF INSURANCE COMPANIES IN RESPECT OF OCCUPANT OF A PRIVATE CAR AND PILLION RIDER IN A TWO WHEELER UNDER STANDARD MOTOR PACKAGE POLICY (ALSOCALLED COMPREHENSIVE PCH-ICY) We have received Circular No.lRDA/NL/CIR/F&U/ 073/11/2009 dt. 16.11.09 from IRDA whereby it is confirmed that insured's liabiljty in respect of occupant carried in a Private Car and Pillion Rider carried on 2-wheeler is covered under the Standard Motor Package Policy. IRDA has further confirmed that vide various Circulars issued after detariff of Motor, there hasbeen no change in the scope of the standard covers. A copy of the Circular is enclosed for record & ready reference. The terms ofthecover as perthe Motor Package Policyfor Private Cars and 2-wheeler as given in Policy wording Section 2.1 (i) are very clearand arereconfirmed by the IRDA's Circular. It is, therefore, advised to immediately review all cases where appeal has been filed on the grounds that Insureris not liable for occupants of PrivateCarsand Pillion Rider in a 2-wheeler under the Motor Package Policy. If the appeal is based solely on these grounds then it must be immediately withdrawn. If there are other grounds for filingappeat then the case must be examined on merits and decision regarding continuationof appeal be taken by the Regional Manager concerned. Lastly, it must be ensured that our offices desist from fiiing appeals on the grounds of Pillion Rider oroccupants of Private Car not being covered under Motor Package Policies. Kindly acknowledge receipt and confirm action taken regarding appeal cases to Head Office Motor Department. Sd/- N.K. SINGH GENERAL MANAGER Encl: As above. m~ M.A.rC) Nos. 537/2008; 550/2008: 576/2008: 587/2008: 593/2008; 698/2008; 805/2008: 1562/2008 & 427/2009 Q (4) Admittedly the policy of the vehicle was a Package Policy (Comprehensive Policy) and the deceased persons were the occupants of the vehicle. Therefore, in light of the contents of the above circular, now this ground is not available to the appellant/lnsurance Company, even though no extra premium was paid by the owner for covering the risk of the occupantsof the vehicle. (5) Mr. Sudhir Agrawal argued that the vehicle was being used as a taxi/whereas, itwas insured as a private car. (6) So far as this argument is concerned, we do not find any force in the same. There is ample evidence on record to show that deceased Rakesh Kumar Sahu and Laxminarayan Dubey (owner of the vehicle) were close friends. Both were working as teachers and they had made themselves Ma/paprasacV (a relationship recognized as brothers in the village) of each other. It is on these relations the said vehicle was called by deceased Rakesh Kumar Sahu for going to Jagdalpur for Devi- Darshan and Rakesh Kumar Sahu &nd his family members were traveling in the said vehicle. The Tribunal has framed issue on this point and it has scrutinized the evidence adduced on this point at length and has recorded a findingthat the vehicle was not being used as a taxi. On due consideration ofthe entire evidence in each case, we do not find any fault in the said finding recorded by the Tribunal. Therefore, the argument advanced by Mr. SudhirAgrawal cannot be sustained. (7) Mr. Sudhir Agrawal then argued that it was a case of over-loading as 14persons were traveling at the time of the accident, therefore, the Insurance Company would not be liableto pay compensation. In National ^fW-W^K:: ...... •.•..^..t-i'. 10 M.A.CQNos. 537/2008: 550/2008: 576/2008: 587/2008: 593/2008: 698/2008: 805/2008: 1562/2008 & 427/2009 Insurance Comoanv Llmited. -Vs- Aniana Shvam & Others. (2007) 7 SSC 445, a passenger vehicle was overloaded and the number of dead and injured has exceeded the number of passengers insured. Ttie awards wer,e passed for more than the insured passengers and the Insurance Company was made liable for payment of amounts covered by all the awards. The Insurance company took an objection before the Supreme Court that its liability was confined only to the extent of number of passengers insured by it and should not be extended to cover the persons not coveredby the Insurance Policy. The Apex Co.urt held that "In such a situation, the insurance taken for the number of.permitted passengers can alone determinethe liability ofthe Insurance Company in respect of those passengers.It held that in terms of Section 149 of the Motor Vehicles Act, the duty of the Insurer isonly to satisfy the judgment and awards against the persons insured in respect of the third party risk that isto the extent the third party risk is coverable and is covered". (8) Referring to Anjana Shyam's case (supra), this Court has held in Smt. Rambati Madiva & others—Vs-Budantl (S) Danteshar Rao & otherand connected matters. 2008 f3) C.G.L.J. 413 fDB) vide Para-14 as under- "14. Therefore, the law is that in such cases where the vehicle was over loaded, the liability of the insurance Company would be to the extent of numbe'f of persons for whom the risk was covered under the agreement and nothing more, but for that kind of breach of policy, the Insurance Company cannot be exonerated from payment of amount of compensation. Hence the finding of the Tribunal that on account of carrying more thanpermitted persons on the vehicle, the Insurance Company would not be liable to pay compensation even to thepersons covered under the Insurance Policy, cannot be sustained and the same is also setaside". ^ € 11 M.A/O Nos. 537/2008: 550/2008: 576/2008; 587/2008: 593/2008: 698/2008: 805/2008; 1562/2008 & 427/2009 (9) In view of the above, the argument advanced by Mr. Sudhir Agrawalcannot besustained, that the Insurance Company would not be liable for payment of amount of compensation because the vehicle was over-load^d at the time of the accident. According to the pleadings of the Insurance Company, the Comprehensive Insurance Policy covers the risk of 10 persons. Therefore, in the facts and circumstances of the case, the appellant/lnsurance Company was liable to pay compensation to the claimant(8), who were the dependants of the nine deceased persons, who died in the said accident. (10) For the foregoing reasons, we do not find any force in these appeals. (11) The appeals are liable to be dismissed and are accordingly dismissed. (12) There shall be no orders as to cost(s). Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge vatti