Accident claim -vehicle registered and insured in India – Accident in Nepal-Insurance Company liable to pay compensation – No extra premium can be charged for third party insurance even for extra territorial coverage: Punjab and Haryana High Court

 on 27 11 FAO No.1517 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH FAO No.1517 Date of decision : 13.11.2017Anil Kumar ......AppellantversusRoop Kumar Sharma and another .....RespondentsCORAM: HON BLE MR. JUSTICE RAJBIR SEHRAWAT PRESENT : Mr. Naveen Daryal Advocate for the appellant. Brig. B.S.Tanque Advocate for respondent No.2 Insurance Company. RAJBIR SEHRAWAT J.makes the Insurance Company liable to satisfy the decree oraward for the accidents occurring outside India even if the sameis passed by a foreign Court but according to provision ofSection 149. If the award of a foreign Court passed as perprovisions of Section 149 of the Act is enforceable against anInsurance Company in India then there is no question of theliability of Insurance Company being excluded in Courts inIndia on the ground that accident occurred outside India.It is not even disputed by learned counsel for therespondents that the bus in question had the necessarypermission to ply in the area of Nepal. Therefore its insurancepolicy would be deemed to be validly permitted to travel in thearea of travel of the bus. Hence for the liability arising from theaccident involving the vehicle entitled to ply in Nepal theinsurer of the vehicle would be very much liable to make thepayment.Still further the bare perusal of the policy showsthat the policy and the schedule produced on record by theappellant do not show any restriction of geographical area interms of exclusion of the liablity of the insurer. The policyproduced on record by the appellant shows that this policy doesnot have any restriction against plying the vehicle outside India.In the name of limitation as to use only organised racing reliability test and speed testing have been excluded in terms of on 27 11 FAO No.1517 8 the Motor Vehicles Act. There is no such clause mentioned asexcluding liablity of the Insurance Company for an accidenthappening outside India. Athough the copy of the insurance policy producedon record by the Insurance Company as Ex. R 4 contains avague writing which speaks “Geographical area zone India”.However comparison of the policies Exhibits R 3 and R 4 showthat the policy numbers on these two policies are different. Thepolicy Ex. R 4 carries different details regarding the premiumpaid and even regarding the details of the vehicle insured. So itis obvious that the Insurance Company has tried to place onrecord the insurance policy not pertaining to the bus in questionto avoid its liability. This attempt has been made by theInsurance Company only for one reason that this policycontains stipulation regarding the geographical area zone whichmentions India whereas the original policy cover noteproduced by the appellant does not show any such restriction.Therefore on the basis of this policy Exhibit R 4 which is noteven proved to be the policy of the bus in question theInsurance Company can not avoid its liability to make thepayment of the compensation awarded on account of accidentinvolving the vehicle in question.Faced with this situation learned counsel for therespondent Insurance Company submits that the limitation forliability of insurance qua area of operation outside India hasbeen defined by India Motor Tariff and therefore Insurance on 27 11 FAO No.1517 9 Company cannot be held liable for any accident which occurredoutside the territorial limits of Union of India.For that purpose the counsel relies upon thedocument Ex. R 7 which contains a specimen of theendorsement advised to be included in the policy. However thisdocument itself is not a legal document to exclude the statutoryliability of Insurance Company. This is only a suggestion of theAdvisory Committee. This was required to be included in thepolicy by individual Insurance Company if at all consideredappropriate and desirable by it while insuring a vehicle. Thisdocument in itself is not sufficient to exclude the liability of theInsurance Company in an accident which occurred outside theterritorial jurisdiction of India.As stated above nothing has been placed on recordby the Insurance Company to show that the insurance policyregarding this particular vehicle contained this stipulation andendorsement as advised by India Motor Tariff . Moreover it isnot on record as to since when the respondent InsuranceCompany started to follow this India Motor Tariff Advisory ifat all it follows the same. Moreover the competence of India Motor Tariff toissue such instruction to limit the liability of Insurance Companyin terms of geographical area has not been shown by theInsurance Company. No such instructions which run counter toor dilute the liability of Insurance Company as defined underSections 146 to 149 of the Act can be countenanced by the 1 on 27 11 FAO No.1517 10 Court.A perusal of the record also shows that all theseobjections were not even raised by the Insurance Companywhile filing the written statement. On the contrary in the writtenstatement the Insurance Company has taken the stand that theirliability is limited to the extent of Rs.50 000 only. Therefore the argument of learned counsel for the Insurance Company otherwise also is beyond the pleadings. Hence the same cannot be accepted by this Court.In view of the above the findings of the Tribunal to the extent of the exclusion of the liablity of the InsuranceCompany and the consequent Award to that extent is set aside.It is ordered that the liablity to make the payment of the awardedamount shall be of the Insurance Company. Hence the appeal is allowed.November 13 2017( RAJBIR SEHRAWAT )sahil soni JUDGE Whether speaking reasoned:Yes NoWhether reportable:Yes No 

Summary: It appeared that the competence of ‘India Motor Tariff’ to issue such instruction to limit the liability of the Insurance Company in terms of the geographical area has not been shown by the Insurance Company. No such instructions; which run counter to or dilute the liability of Insurance Company as defined under Sections 146 to 149 of the Act can be countenanced by the held by Hon’ble Justice Rajbir Sehrawat in Anil Kumar versus Roop Kumar Sharma and another [FAO No.152 of 2017]. The facts leading to this case relate to the on 14.06.1995, Kamal Sharma, along with 54 other pilgrims, left Kurukshetra at about 8.00 AM. They had to go to Haridwar, Ayodhya, Nepal and Jagan Nath Puri etc. They were in the Bus bearing registration No.UP-10B-0939. It is claimed in the claim petition that the bus was taken for the journey after getting permission from Regional Transport Controller, Haridwar as well as from Managing Director, Garhwal Vikas Nigam, and Haridwar. On the intervening night of 17/18.06.1995, at about 2.00 AM, when the bus, in which the deceased-Kamal Sharma was travelling along with other pilgrims, reached the area of Chitwan, District Chandi Bhajan, Village Vikas Samiti, situated in Parevar Bhir at the distance of two kilometres from Naraingarh, the driver of the Bus lost control and the bus fell in Trishuli Nadi. All 54 persons died in the accident. No dead body of any pilgrim could be traced because the river was about 30 meters deep. On account of the death of these persons, several claim petitions were filed, the previous one was of Sona Devi and others. The present petition was filed by Roop Kumar Sharma on account of the death of Kamal Sharma. The counsel for the appellant submits that there was no limitation for use of the vehicle in terms of geographical area; as per the policy issued for this vehicle and the bus was authorised to travel to an area of Nepal. The Tribunal held that the claim petition is not maintainable in India if the accident had taken place out of India. However, this Court remanded the matter to the Tribunal for the decision of the same, on merits, after holding that claim petition can be filed in India. Counsel further submits that since there is no restriction in the policy regarding the use of the vehicle outside the geographical territory of India, therefore, the Insurance Company is liable to make the payments. On the other hand, learned counsel for the respondent-Insurance Company has submitted that since the policy produced on record is limited to cover the vehicle to be used only in the geographical area of India, therefore, the Insurance Company is not liable for payment of compensation on account of any accident occurring outside India.