Rajasthan High Court - Jodhpur
Leeladhar vs Mahendra Singh And Ors on 18 February, 2021
Author: Vinit Kumar Mathur
Bench: Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 211/2002
Leeladhar S/o Shri Mahaveer Prasad, by caste Brahmin, R/o.
Bhadara, District Hanumangarh.
----Appellant
Versus
1. Mahendra Singh S/o Shri Asha Ram, by caste Jat, R/o.
Khachawana, Tehsil Bhadara, District Hanumangarh.
2. Jaswant Singh S/o Shri Asha Ram, by caste Jat, R/o.
Khachawana, Tehsil Bhadara, District Hanumangarh.
Respondents/Claimants.
3. National Insurance Company Ltd., through its Divisional
Manager, Divisional Office Sri Ganganagar.
4. Shri Rajendra Kumar Goyal S/o Shri S.N. Goyal, R/o. Bhadara.
----Respondents
For Appellant(s) : Mr. S.G. Ojha
For Respondent(s) : Mr. Jagdish Chandra Vyas on behalf of
Mr. Sanjeev Johari
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
Judgment 18/02/2021 The present appeal has been preferred against the judgment and award dated 29/03/2001 passed by Motor Accident Claims Tribunal, Nohar, District Hanumangarh (Additional District Judge, Nohar) in Motor Accident Claims Case No. 79/98. Vide judgment dated 29/03/2001, the appeal of the claimants was allowed and a sum of Rs. 50,000/- was awarded as compensation.
Brief facts of the case are that a jeep having registration No. D.L.5CA 7203 was insured with the respondent/Insurance Company as a private vehicle and as per the Insurance Cover Note, the Policy was 'act only policy'. The subject vehicle driven by (Downloaded on 19/02/2021 at 08:41:52 PM) (2 of 6) [CMA-211/2002] the appellant met with an accident on 24/02/1998. In the accident, one Asha Ram died on account of the rash and negligent driving of the driver of the jeep. In these circumstances, a claim petition was filed by the legal heirs of Asha Ram before learned Tribunal.
Learned Tribunal after framing of the issues, evaluating the evidence on record and hearing learned counsel for the parties, awarded the compensation to be paid by the appellant in the present case.
Heard learned counsel for the parties and perused the material available on record.
Learned counsel for the appellant submitted that findings recorded by the Tribunal on issue No.3 are not correct as the subject vehicle was insured with the Insurance Company, therefore, the respondent/Insurance Company was liable to pay the compensation. He submitted that the accident occurred during the currency of the Insurance Cover, therefore, the Tribunal was not right in holding the driver and owner responsible for paying the compensation.
Per contra, learned counsel for the respondent/Insurance Company submitted that the finding on issue No.3 is clear and categorical to the extent that the subject vehicle was being plied on the road and Asha Ram was a passenger who had paid the consideration for travelling in the jeep. Thus, it can be said that he was a fare pay passenger and was occupant of the subject vehicle. Learned counsel further submitted that since the policy cover in the present case was only to the extent of 'act only policy', so the risk of the occupant was not covered. Learned counsel, therefore, submitted that issue No.3 was correctly decided in the present (Downloaded on 19/02/2021 at 08:41:52 PM) (3 of 6) [CMA-211/2002] case by the Tribunal. In support of his contention, learned counsel for the appellant has relied upon the judgments of this Court in the cases of S.B. Civil Misc. Appeal No.696/2003 (The Oriental Insurance Company Limited, Jodhpur vs. Smt. Sharda Devi & Ors.), decided on 04/08/2016 & National Insurance Company Ltd. vs. Smt. Sahidan Bano, reported in 2015 (2) R.A.R.892 (Raj.).
I have considered the submissions made at the Bar and have gone through the impugned judgment as well as other relevant record of the case.
The admitted facts in the present case are that the subject vehicle was insured with the Insurance Company on the basis of 'act only policy' and, therefore, no premium was charged on account of the passengers travelling in the said vehicle. Since the risk of those passengers, who were travelling in the vehicle, was not covered, therefore, the death of the occupant of the vehicle Asha Ram is sole responsibility of the owner of vehicle. Thus, the Insurance Company is not liable for payment of compensation in the present case in view of the judgment of Coordinate Benches of this Court in the case of the Oriental Insurance Company Limited, Jodhpur vs. Smt. Sharda Devi & Ors., decided on 04/08/2016 & National Insurance Company Ltd. vs. Smt. Sahidan Bano (supra).
In the case of Oriental Insurance Company Limited, Jodhpur vs. Smt. Sharda Devi & Ors(surpa), this Court held as under :-
"From the very averments made by the claimants in the claim petition and the evidence led by the claimants, it is an admitted position that deceased was occupant of the insured jeep and died when the jeep, which was being driven by the driver, turned turtle. The policy (Exhibit-8) indicates that the same was Private Car (Zone B) Policy Act only and in the (Downloaded on 19/02/2021 at 08:41:52 PM) (4 of 6) [CMA-211/2002] column pertaining to liability to public liability for paid driver/workmen No.1 has been indicated and premium in this regard of Rs. 15/- has been paid.
The liability of the Insurance Company pertaining to the Act only policy qua the occupants of the vehicle is no more res integra as laid down by Hon'ble Supreme Court in the case of Meena Variyal (supra) and subsequent judgment of Hon'ble Supreme Court in the case of National Insurance Company Limited v. Balkrishnan & Anr. : (2013) 1 SCC 731, wherein, it has been held as under:-
"26. In view of the aforesaid factual position, there is no scintilla of doubt that a "comprehensive/package policy" would cover the liability of the insurer for payment of compensation for the occupant in a car. There is no cavil that an "Act policy" stands on a different footing from a "comprehensive/package policy". As the circulars have made the position very clear and the IRDA, which is presently the statutory authority, has commanded the insurance companies stating that a "comprehensive/package policy" covers the liability, there cannot be any dispute in that regard. We may hasten to clarify that the earlier pronouncements were rendered in respect of the "Act policy" which admittedly cannot cover a third party risk of an occupant in a car. But, if the policy is a "comprehensive/package policy", the liability would be covered. These aspects were not noticed in the case of Bhagyalakshmi and, therefore, the matter was referred to a larger Bench. We are disposed to think that there is no necessity to refer the present matter to a larger Bench as IRDA, which is presently the statutory authority, has clarified the position by issuing circulars which have been reproduced in the judgment by the Delhi High Court and we have also reproduced the same."
This Court in the case of Smt. Sahidan Bano (supra) has also relied on the judgment in the case of Meena Variyal (supra) and has held that in Act only policy, the risk of occupant of the vehicle is not covered as the occupant is not a third party. Further the direction given by the Tribunal for pay and recover was also set aside based on the clarification given in the case of Meena Variyal (supra) qua the judgment of (Downloaded on 19/02/2021 at 08:41:52 PM) (5 of 6) [CMA-211/2002] Hon'ble Supreme Court in the case of National Insurance Co. Ltd. v. Swaran Singh : (2004) 3 SCC
297. In view of the law laid down by Hon'ble Supreme Court and in view of the undisputed facts, the Tribunal was not justified in holding the appellant Insurance Company liable for making payment of the amount of compensation. The finding on issue No. 3 is, therefore, reversed."
In another judgment in the case of National Insurance Company Ltd. vs. Smt. Sahidan Bano (supra), this Court held as under :-
"11. In view of the settled legal position, as aforesaid, it remains no longer res integra that the impugned direction of the learned Tribunal in the impugned order dated 08.03.2006 to the appellant-Insurance Company to pay and recover, cannot be sustained. The insurance cover in question was admittedly, "ACT ONLY POLICY" and did not cover the risk of fare paying passenger, like deceased Kursheed @ Khursheed, who admittedly hired the Jeep alongwith 4-5 persons for Rs.200/- on the fateful day of accident on 15/16.12.1998. He therefore, could not be said to be a 'third party' covered by the said policy in question, as rightly found by the learned Tribunal in the order dated 08.03.2006. The learned Tribunal has however, fallen into error in applying the judgment in the case of Swaran Singh (supra), in which the direction to pay and recover is given only for the compensation awarded to a third party and this decision was clarified by the Hon'ble Supreme Court in the later decision in the case of Meena Variyal (supra) vide aforesaid quoted portions. Therefore, the impugned direction in the order dated 08.03.2006 deserves to be set aside. The owner and driver of the Jeep will however, continue to be liable to pay the compensation payable to the legal representatives of the deceased Kursheed @ Khursheed. Nobody has represented them before this Court, despite service".
Thus, the findings recorded by the Tribunal on issue No.3 is just and proper and the same conclusively goes to show that the appellant, who was the owner of the vehicle, was responsible for the payment of compensation on account of the death of Asha Ram.
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(6 of 6) [CMA-211/2002] The appeal, therefore, is devoid of merit. The same is, therefore, dismissed.
(VINIT KUMAR MATHUR),J 4-SanjayS/-
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