•—^ ^% "V A. HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha. J. M.A.(C)No. 794 of 2008 The Oriental Insurance Company Ltd., Vs'. Smt. Savitri Bai and others ORDER For consideration Sd/- \ sunilKumar Sinha ^ Judge HON'BLE SHRI JUSTICB RAJEEV GUPTA 3 6J Sd/- Chief Justice Post for Order : /^/03/2010 Sd/- HIGH CQURT QF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha, J. M,A.(C) No.794 of 2008 APPELLANT JHM^ RESPQNDENTS 1. The Oriental Insurance Company Ltd., Through Branch Office Kamptee Line, Rajnandgaon (C.G). Insurer of Vehicle Motor Cycle No.C.G.07 L.F. 7536 Versus Smt. Savitri Bai, widow of Pardeshi, Caste Halba, aged 29 years 2. Ku. Santoshi, D/o Pardeshi Halba, aged about 12 years, 3. Pradeep Kumar, s/o Pardeshi Halba, aged about 9 years, 4. Arun Kumar, s/o Pardeshi Halba, aged about 7 years Guardian of all three minors, Mother Smt. Savitri Bai Widow of Pardeshi Halba, aged about 29 years. 5. Smt. Agani Bai widow of Siyaram Halba, aged about 61 years, All residents of village - Ward No.18, Danteshwari Maa Ward, Near Kishan Kirana Stores, Dallirajhara, Thana Rajhara, Tah. Balod, Distt. Durg (C.G). 6. Ramesh Kumar Jain, son of Manau Lal Jain, resident of New Market Dallirajhara, Thana Rajhara, Tah. Balod, District Durg (C.G) - (Owner of Vehicle Motor Cycle No.C.G.07 L.F.7536) MISC. APPEALS UNDER SECTION 173 OF THE MOTOR VBHICLES ACT, 1988 ^"'^w^-^.^ 5? Appearance: Mr.Sudhir Agrawal, counsel for the appellant/Insurance Company. Mr. R. S. Patel, counsel for respondents 1 to 5. Mr. Wasim Miyan, counsel for respondent no.6. ORDER (/7.03.2010) Following order of the Court was deliyered by Sunil Kumar Sinha, J. (1) Being aggrieved with the award dated 31.03.2008 passed in Claim Case No.52/2007 by the Additional Motor Accident Claims Tribunal, Balod, District Durg (C.G), the Insurance Company has filed this appeal. (2) The facts, brieHy stated, are as under: The claimants, unfortunate widow, minor children and mother of deceased Pardeshi Ram, filed a claim petition u/s 166 of the Motor Vehicles Act claiming compensation of Rs.7,00,000/- for his death in the motor accident which took place on 15.3.2007 when the motorcycle bearing Regn. No. C.G.07-LF/7536, on which, the deceased was sitting as a pillion rider, met with an accident on account of rash and negligent driving of the said motorcycle by its driver namely Vikram Singh. The claimants pleaded that the deceased was aged about 25 years and was earning Rs.150/- per day by doing Kabadi business and he was also earning Rs.100/- per day by selling wood. \ The owner contested the claim by filing his \ written statement. He denied the factum of accident «-?5^3 %sSPI!SE%23?S.«S"'iS-atJr»Ai^,';i M.A('C).No.794of2008 and pleaded that his vehicle was insured with the appellant. Therefore, even if any liability is fixed, that has to be indemnified by the appellant/ Insurance Company. The appellant/Insurance Company also field its written statement. It also denied the contentions of the claimants and pleaded that the accident did not occur on account of rash and negligent driving of the motorcycle by Vikram Singh. The policy does not cover the risk of a pillion rider and the deceased was also not a third party, therefore, the insurance Company was not liable to pay compensation to fhe claimants. The insurance Company was not granted permission u/s 170 of the Motor Vehicles Act to contest the claim on all possible grounds. The claimants examined Savitri Bai (A.W.l) and Joharlal Dewangan (A.W.2) in support of their claim petition, whereas the appellant insurance Company examined Vijay Shankar Rai (N.A.W.l) in rebuttal. The Tribunal recorded the finding that the accident occurred on account of rash and negligent driving of the motorcycle by its driver. The motorcycle was insured with the appellant. Therefore, the appellant/insurance company was liable to pay compensation. The Tribunal further held that the deceased was earning Rs.100/- per day, Rs.3000/- per month and Rs.36,000/- per annum. By deducting l/3rd towards personal expenses of the deceased, the annual dependency of the claimants was worked out to Rs.24,000/-. The Tribunal held that the deceased was in between 32 11 ^^^^^^^ -^;SS?5V3!S-SS?SS^ ^ ^ |N<Mfc! M.ACC). No.794 of 2008 and 35 years of age, and applied the multiplier of 17 and the compensation was worked out to Rs.4,08,000/-. By adding further sum of Rs.65,000/- under other heads, the total amount of compensation was worked out to Rs.4,73,000/-. The Tribunal also awarded interest @ 6% per annum from the date of filing of the claim petition till realization. (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 a pillion rider, but he is not pressing this ground on account of recent Circular dated 25.11.2009 of the Head Office, New Delhi, as the vehicle was insured under "Motor Package Policy9?, also called as "Comprehensive Policy". Circular dated 25th November 2009 issued by the Head Office of the appellant/Insurance Company reads as under:- "THE ORIENTAL INSURANCE COMPANY LTD., HEAD OFFICE NEW DELHI DEPTT.: MOTOR Dated 25& November 2009 CIRCULAR N0. HO/MOT(U/W)/282/2008-09/CR-6473 CIRCULAR TO ALL BOs/Dos/ROs, I.A.D, VIGILANCE DEFTT., IT DEFTT. OSTC, ALL DEFTTS. OF H.O. 85 C.M.D'S SECTT./SERVICE CENTRE AT HANSALAYA 85 HYDERABAD LIABILITY OF INSURANCE COMPANIES IN RESPECT OF OCCUPANT OF A PRIVATE CAR AND PILLION MDER IN A TWO WHEELER UNDER STANDARD MOTOR PACKAGE POLICY (ALSO CALLED COMPREHENSIVE POLICY) We have received Circular No.IRDA/NL/CIR/FSsU/ 073/11/2009 dt. 16.11.09 from IRDA whereby it is confirmed that insured's liability 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 has been \". Y..1 ^ M.A('C).No.794of2008 no change in the scope of the staadard covers. A copy of the Circular is enclosed for record & ready reference. The terms of the cover as per the Motor Package Policy for Private Cars and 2-wheeler as given in Policy wording Section 2.1(i) are veiy clear and are reconfirmed by the IRDA's Circular. It is, therefore, advised to immediately review all cases where appeal has been filed on the grounds that Insurer is not liable for occupants of Private Cars and 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 filing appeal then the case'must be examined on merits and decision regarding continuation of appeal be taken by the Regional Manager concerned. Lastly, it must be ensured tihat our offices desist from filing appeals on the grounds of Pillion Rider or occupants 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. (4) Admittedly, the insurance policy, Ex. D-1, was a Package Policy (Comprehensive Policy) and the deceased was a pillion rider. Therefore, in light of the contents of the above Circular, now this ground is not available to the appellant/insurance company, even though no extra premium was paid by the owner for covering the risk of the pillion rider. (5) Mr. Sudhir Agrawal then argued that the finding in relation to rash and negligent driving of the motorcycle is perverse. Joharlal Dewangan (A.W.2) has been examined in this regard. He deposed that on the fateful day, Vikram Singh was driving-the Bajaj Discoveiy Motorcycle bearing Regn.No.C.G.07- LF/7536. Deceased Pardeshi Ram was coming from Dondi to ,Dalli alongwith Vikram Singh on the said motorcycle. The ^^ft^^, ^^^"%^\ M.AfC).No.794of2008 motorcycle fell in a culvert on account of rash and negligent driving by Vikram Singh. He was present in the "Dabha" which is adjacent to the culvert where the accident took place and both the riders of the motorcycle died on the spot. The copies of Police Report (Ex.P.l), F.I.R. (Ex.P.2) and merg intimation (Ex.P.3) have also been filed. According to the contents of the F.I.R. also, the accident occurred on account of rash and negligent driving of the motorcycle by deceased Vikram Singh, who also died in the accident. We, therefore, do not find any infirmity in the finding recorded by the Claims Tribunal that the accident occurred on account of rash and negligent driving of the offending motorcycle by its driver namely Vikram Singh. (6) Moreover, in National Insurance Co. Ltd., Chandieiarh - Fs. - Nicolletta Rohtaai and others (2002) 7 SCC 456 the Supreme Court held vide paras 31 & 32 as follows: a31. We have already held that unless the conditions precedent specified in Section 170 of the 1988 Act are satisfied, an insurance company has no right of appeal to challenge the award on merits. However, in a situation where there is a collusion between the claimants and the insured or the insured does not contest the claim and, further, the Tribunal does not implead the insurance company to contest the claim, in such cases it is open to an insurer to seek permission of the Tribunal to contest the claim on the ground available to the insured or to a person against whom a claim has been made. If permission is granted and the insurer is allowed to contest the claim on merits, in that case it is open to the \ insurer to file an appeal against an award on merits, if \ aggrieved. In any case where an application for SSffiS^-SSKS^SESIS"1^^" .^^^ M ' 'f' ^J "!v ^" ^^/ %s^// M.ArC).No.794of2008 ttll^ permission is erroneously rejected the insurer can challenge only that part of the order while filing appeal on grounds specified in sub-section (2) of Section 149 of the 1988 Act. But such application for permission has to be bona fide and filed at the stage when the insured is required to lead his evidence. So far as obtaining compensation by fraud by the claimant is concerned, it is no longer res integra that fraud vitiates the entire proceeding and in such cases it is open to an insurer to apply to the Tribunal for rectification of award. 32. For the aforesaid reasons, our answer to the question is that even if no appeal is preferred under Section 173 of the 1988 Act by an insured against the award of a Tribunal, it is not permissible for an insurer to file an appeal questioning the quantum of compensation as well as findings as regards negligence or contributory negligence of the offending vehicle." (7) Admittedly, the appellant/insurance company was not granted permission u/s 170 of the Motor Vehicles Act as the owner of the vehicle was contesting the claim on merits; therefore, the appellant/Insurance Company cannot challenge the quantum of compensation as well as the findings as regards negligence of the driver of the motorcycle. (8) For the foregoing reasons, we do not find any substance in the appeal. The appeal filed by the Insurance Company, therefore, is liable to be dismissed and is hereby dismissed. (9) There shall be no order as to cost(s). Sd/- Chief Justice Sd/- SunilKumar Sinha Judge t^ •-s.-.^.ye^ss-^—-.-"^~?-"7-~^^-'^"^''!^s' i