IN THE HIGH COURT QFCHHATTISGARH AT BILASPUR. APPELLANTS. (Driver). ..-.^% ^$^^'" »*' (Owner) M.A.(C)NO.^..'../2009, n^j^^ ggrf 1. Ashok Kumar Dewangan S/o Shri Jagmohan Lal Dewangan, Aged about 40 years, R/o Village-Achhota, Tahsil & Distt. Dhamatari (C.G.) (Owner of T.V.S.Star Deluxe Motor Cycle No. CG 05B/7419) 2. Narayan Dewangan S/o Shri Uttam Dewangan, aged about 33 year, resident village- Achhota, Tahsil and District- Dhamatari (C.G.) VERSUS RESPONDENTS. (Claimants) (Insurance Company) Smt. Kumari Bai, W/o Late Dinesh Kumar Dewangan, Aged about 35 years. Santosh Kuniar S/o Late Dinesh Kumar Dewangan, Aged about 17 years, Dhawendra Kumar S/o Late Dinesh Kumar Dewangan, Aged about 15 years, Respondent No. 2 & 3 are through their natural guardian Mother Smt. Kumari Bai Wd/o Late Dinesh Kumar Dewangan, All R/o of Village Achhota, Tahsil and District Dhamatari (C.G.). The Bajaj Allianz Company Limited, Branch office Shivmohan Bhavan, Vidya Sadan Marg, Pandri Raipur (C.G.) MISCELLANEOUS APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT 1988. IIB'?! ..r^ - //'. " '% K & ^v£Sa\ S }| ^ ''.SB'f'1^, I HIGH COORT OF CHHATTISGARH. BILA8PUR Diwisloa Bench: HON'BLE SHRI I.M. QUDDU8I SE HOM'BLB SHRI G. MINHAJUDDIN, JJ MISC. APPEAL (Ct N0. 57 OF 2009 APPELLAKTS j[Driverl Ashok Kuiaar Dewaagau aad anotfaer Vs. RESPONDENTS lclaimantsl Ssat. Kumari Bai and others Preseat;: Mr. RS Patel, counsel for the appcUants/claiiuants. Mr. SS Rajput, counsel for respondent No.4/iasurance company. ORDER (ORALt (7th July,2011) Per LM. QUDDUSI. J. Thls appeal has been ffled agsdnst the award dated 26.11.2008 passed by the Addl. Motor Accident Claiins Tribiinal, Dhamtari, in Claun Case No. 115/06 by the appeUants, who are driver and owner of fhe offending vehicle, insofar as it relates to lastening of liabllity upon fhem. 2. Brief facts of the case are that on 23.1.2006 Dinesh Kumar Dewangan was traveling along with appeHant No.l Ashok Kumar Dewangan in the ofiending vehicle i.e. TVS Star Delux Motorcycle No. CG 05B 7419, as a piUion rider. AppeUant No.l by driving fhe offendir^ vehicle rashly and negligently caused accident near Reliance Petrol Pump, Nayapara, situated at Raipur-Rajun road, as a result, Dinesh Kumar fell down and sustamed grievous injuries over his ribs, chest and head and succumbed to the same during the course of treatment at Masihi Hospital, Dhamtari. The deceased was a healtliy man of 40 years aiid was eammg Rs.10,000/- per month by running a hotel and doing the extra job of confectioner. Tlie claiiaants were dependent upon htm. Therefore, they filed a claim petition imder Section 166 of the Motor Vehicles Act for a total compensation of 17,44,000/- against the death ofDmesh Kumar Dewangan. However, leamed Tribtinal, after hearing leamed eounsel for the respective partles and examinu^ fhe material on record, awarded a total compensation ofRs.3,03,000/- to the claimants by fasteiung the BabUity upon fhe appellants and exonerating the insurance company. 3. Heard leamed counsel for the parties, perused the LCR as also the impugned awanl. 4. From. perusal of the record, we flnd that fhe msurance policy was a two-wheeler package policy, which was effective on the date of accident. The deceased was a pillion rider of two- wheeler in question. 5. EarUer two Misc. Appeals being M.A(C).No.451/2006 & M.A(C). No.488/2006 arising out of the same accident were heard and disposed of by a Division Bench of this Court vide Judgment dated 26.03.2010 dismissing fhe appeals. The Qndings recorded in Paras 4 to 7 of the sald Judgment are relevant here and quoted below: "(4) Though a ground m the appeal was taken by the Insurance Company that fhe risk of the occupant of the vehicle was not covered under the insurance policy, but Mr. Manish Upadhyaya, leained counsel appearing on behalf of the insurance company, very fairly submitted that he is not pressing fhis ground on account of recent circiitar dated 25.11.2009 of the Head Ofiice, New DeUii as the vehicle was insured under Motor Package Policy also called as Comprehensive Policy. Circular dated 25*h November, 2009 issued by the Head Of&ce of the Insurance Company reads as under: THE ORIENTAL INSURANCE COMPANY LTD., HEAD OFFICE, NEW DELHI DEPTT.: MOTOR dated 25th November, 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 DEFTrS. OF H.O. & C.M.D'S SECTT./SERVICE CENTRE AT HANSALAYA_&-_. HYDERABAD. ^ LIABILITY OF INSURANCE COMPANIES IN RESPECT OF OCCUPANT OFA PRIVATE CAR AND PILLION RIDER IN A TWO WHEELER UNDER STANDARD MOTOR PACKAGE POLICY (ALSO CALLED COMPREHENSIVE POLICY). We have received Circular No.IRDA/NL/CIR/ F&U/ 073/11/2009 dt. 16.11.2009 from IRDA whereby it is confinned that insured's liability in respect of occupant carried ia a Private Car and Piltion Rtder carried on 2 wheeler is covered under thc Staadard Motor Package Policy. IRDA has further confinaed that vide various Circulara issued after detariffofMotor, there has been no chaage in. the scope offhe standard covers. A copy ofthe Circular is enclosed for record & ready reference. The terms of the cover as per fhe Motor Package PoUcy for Private Cars and 2-wheeler as given ia Policy wordiag Section 2.1(i) are veiy clear and are reconfirmed by the IRDA's Circular. It is, fherefore, advised to imuiediately review all cases where appeal has been ffled on fhc grounds fhat insurer is not Uable for occupaats of Private Cars and PilUon Rider ia a 2-wheeler under the Motor Package Policy. If fhe appeal is based solely on fhese grouuds fhen it must be iminediately withdrawn. Iffhere are ofher grounds for filJTig appeal fhen the case inust be exainined on m.erite and decision regarding continuation of appeal be taken by fhe Regional Man^er concenied. Lastly, it must be ensured fhat our offices desist from filing appeals on the grounds of PiBion Rider or occupants of Private Car not being covered under Motor Package Policies. Kindly acknowledge receipt and coiifirm actiou taken regarding appeal cases to Head OfEice Motor Department. Sd/- N. K. SINGH GENERAL MANAGER Eacl: As above (5) Admittedly, fhe poUcy offhe vehiclc was a Package Policy (coinprehensive Policy) aad fhe deceased was occupant of fhe vehicle, Therefore, ia l^ht of fhe contents of fhe above circular, now fhis grouiid u not available to the Insuraace Company, even ttiough no extra premium was paid by the owner for coveriug the risk ofthc occupant of fhe vehicle. (6) Mr, Manish Upadhyaya, learaed counsel for fhe Insurance Coinpany argued that the vehicle was being used for coininerciat purpose whereas it was insured as a private vehicle. ^. 9 (7) We do not find aay force in such argnmp.nt advauced by leamed counsel for the Insuiauce Compaoy. There is no iota of evidence to show fhat fhe said veliicle was beiag used as a taxi or the owner has used the vetucle for cominercial purpose.' 6. Since the facts and question of law involved in this appeal ai-e squarely covered by the Judgment dated 26.3.2010 passed by fhis Court in M.A(C).No.451/2006 & M.A(C)..No.488/2006, we cannot go beyond the findings given by the Division Bench of this Court on fhe basis of the evidence recorded in the Claim Petition. 7. Therefore, we allow this appeal, set aside fhe impi-^ned award and exonerate fhe appeUants i.e. the owner and the driver from their UabUlty to pay compensation, and respondent No.4/insiirance company is held liable to pay fhe compensation. It wUl be open for the claimants to realize the amoi.mt of compensation from respondent No.4/uisurance company. The amount which is in deposit shall be allowed to be withdrawn by the appeUants. In case, the same has been disbursed to fhe claimants, it will be open for the appellants to realize the same fi^m respondent No.4/insurance company. 8. No order as to costs. -s"~ 9. Certtfifid copy as per rules. - ? Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge