Gujarat High Court
Gaurishankar Baldevbhai Shrimali vs Babubhai Madhavbhai Prajapati on 24 September, 2018
Author: S.G. Shah
Bench: S.G. Shah
C/FA/521/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 521 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G. SHAH
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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GAURISHANKAR BALDEVBHAI SHRIMALI
Versus
BABUBHAI MADHAVBHAI PRAJAPATI
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Appearance:
MR HEMANT S SHAH(756) for the PETITIONER(s) No. 1,2,3
DS AFF.NOT FILED (R)(71) for the RESPONDENT(s) No. 1
MR DHAVAL R CHAUHAN(5157) for the RESPONDENT(s) No. 1.1,1.2
MR NIKUNT K RAVAL(5558) for the RESPONDENT(s) No. 2
NABIL O BLOCH(7953) for the RESPONDENT(s) No. 1.1,1.2
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CORAM: HONOURABLE MR.JUSTICE S.G. SHAH
Date : 24/09/2018
ORAL JUDGMENT
1. Heard learned advocate Mr. Hemant S. Shah for the appellants, learned advocate Mr. Nabil Bloch for the respondents No.1.1 and 1.2 and learned advocate Mr. Nikunt Raval for respondent No.2. Perused the record.
Page 1 of 44C/FA/521/2016 JUDGMENT
2. The appellants have challenged the judgment and award dated 27.2.2013 in M.A.C. Misc. Application No.177 of 2007. Such application was preferred by present appellants as original claimants being legal heirs of victim of road accident, namely, Minaben alias Minakshiben Gaurishanker Shrimali being her husband and two minor children. It is undisputed fact that on 2.12.2007, when victim was travelling in Jeep No.GJ-1S-9735, the Jeep has turned turtle because of rash and negligent driving of its driver and in such incident, the victim has received fatal injuries. The claim petition was preferred against owner of the vehicle being opponent No.1 and Insurance Company of such vehicle being opponent No.2. After allowing all the parties to adduce their evidence and after considering the available evidence on record, though the Tribunal has come to the conclusion that the claimants are entitled to the compensation of Rs.4,41,500/-, thereby awarded such amount by such impugned award with 7.5% interest, the Tribunal has exonerated the Insurance Company from its liability to pay compensation to the claimants on the ground that victim was travelling in a vehicle for hire and reward and therefore, Insurance Company cannot be held liable to pay compensation when vehicle is a private vehicle, wherein policy does not cover the risk of person carrying for hire and reward. Being aggrieved by such determination and thereby, exonerating the Page 2 of 44 C/FA/521/2016 JUDGMENT liability of the Insurance Company, the claimants/appellants have preferred this appeal.
3. I have heard the rival contentions and perused the record and proceedings. So far as quantum of compensation is concerned, I do not see any reason to interfere with it at this stage considering the fact that the Tribunal has taken care of available evidence before it in determining quantum of compensation that may be awarded to the claimants for the death of victim
- Minaxiben, who was aged about 27 years only. It cannot be ignored that the claim application is preferred under Section 163A of the Motor Vehicles Act ('MV Act', for short) and therefore, on different conventional heads, the award is only Rs.9,500/-.
4. However, the main issue in the appeal is with reference to the liability of the Insurance Company to indemnify the owner by making payment of compensation awarded by the Tribunal as per the award. Surprisingly, the Tribunal has while exonerating the liability of Insurance Company, when discussed the issue in paragraphs 17 and 18, made contrary statements. In paragraph 17, it is observed by the Tribunal that "It is established from the documentary evidence likewise complaint, which is filed by the applicant No.1, that in the jeep car there were more than 15 passengers. In this circumstance, it can be said that the deceased was travelling as a gratuitous passenger Page 3 of 44 C/FA/521/2016 JUDGMENT and there is breach of terms and conditions of the policy". Unfortunately, Tribunal has failed to realise that there is no such condition disclosed in policy document, copy of which is produced at Exh.25 before it. However, in paragraph 18, the Tribunal has recorded a different version when it is stated that "Moreover, if we perused the policy of the jeep car, which was involved in the accident, at Exh.25, it is private car and as per terms No.A, which is regarding limitations as to use, the vehicle cannot be used for hire or reward." Therefore, while holding that Insurance Company is not liable to pay compensation, the Tribunal has considered that there is breach of terms and conditions of the policy, as a passenger car was carrying passengers for hire or reward. Unfortunately, the Tribunal has come to such conclusion i.e. travelling of victim in a vehicle by paying some fare without having any evidence to that effect on record and though Tribunal itself has in previous paragraph observed that victim was travelling as a gratuitous passenger. It seems that the Tribunal has relied upon the deposition of one Ravi Dilipkumar Talreja, who was serving as Manager (Legal) with the Insurance Company at the relevant time. In his affidavit, he has stated that "it is submitted that insured vehicle at the material time of the accident was used for hire or reward purpose and therefore, this being breach of the terms and conditions of Page 4 of 44 C/FA/521/2016 JUDGMENT the policy and therefore, this opponent is not liable to pay any amount of compensation". However, the Tribunal has failed to realise that for making such statement on oath, the witness does not have any information or evidence with him and therefore, when there is no evidence on record to confirm that victim was travelling in a vehicle by paying any fare or that vehicle was actually used for hire or reward, only because the officer of the Insurance Company has made a statement in his deposition that vehicle was being used for hire or reward, it cannot be considered as a gospel truth. The witness has further stated that the policy covers the use for any other purpose other than hire or reward and therefore, when vehicle was used for hire or reward, it amounts to breach of terms and conditions of the policy, but such statement alone, is not sufficient and enough in absence of any specific evidence either direct evidence by the Insurance Company by examining any person concerned with the vehicle or investigating agency so as to confirm that in fact, the vehicle was being used for hire or reward or admission by the victim or passengers that they have paid fare for such trip. Therefore, if we examine the evidence wherein there can be a disclosure about any of such issue i.e. complaint, panchnama and deposition of the claimants, it becomes clear that in none of such oral or documentary evidence, there is a disclosure by anyone of them Page 5 of 44 C/FA/521/2016 JUDGMENT in any manner whatsoever that vehicle was being used for hire or reward or that victim was travelling by paying any fare. On the contrary, the claimant has categorically deposed and reconfirmed in his cross-examination that victim was travelling in the vehicle because vehicle owner was known to him. There is no disclosure in police paper/s that vehicle was being driven for hire or reward at the relevant time or that any of the passenger has paid fare to the driver or owner of the vehicle at the relevant time. The chargesheet was filed against the driver of the vehicle, wherein also, there is no disclosure about use of the vehicle for hire or reward. When chargesheet shows that there are as many as eight witnesses in addition to panch witnesses and Medical Officer, so also investigating officer, it becomes clear that if at all there is any disclosure or evidence regarding use of the vehicle for hire or reward, then it would certainly be reflected in any such document. It is also evident from record that Insurance Company has never bothered to call for any such document and to prove by cogent and reliable evidence by a person who is enable to disclose such fact so as to confirm that vehicle was certainly used for hire or reward and not for any other reason or purpose. Therefore, only statement by officer of the Insurance Company who was neither eye-witness nor concerned with the incident of accident nor with the activities of Page 6 of 44 C/FA/521/2016 JUDGMENT the driver or the owner to use their vehicle and thereby, sitting in his cabin at the relevant time, has no personal knowledge of the use of the vehicle in particular manner at the time of incident and therefore, only because he made a statement on oath that vehicle was used for hire or reward, such statement cannot be considered.
5. Then the only issue remains is with reference to the liability of the Insurance Company, when it is contended that this being a policy of a private passenger vehicle, liability of its occupants are not covered. It cannot be ignored that so far as limitation of liability is concerned, it is specifically disclosed in the policy that the policy covers the liability as per the requirement of MV Act, 1988. Under Section II(1)(i) of the Policy, it is confirmed that the insurance policy covers the liability for death of or bodily injury for such amount as is necessary to meet with the requirements of MV Act, 1988. It is also undisputed fact that application is under Section 163A of the MV Act, which specifically confirms that "notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the Page 7 of 44 C/FA/521/2016 JUDGMENT victim, as the case may be. In sub-section (2) it is also made very clear that in any claim for compensation under Sub-section (1), claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. Therefore, when section starts with non-obstante clause stating that notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law and thereby, it includes all other provisions of MV Act so also other statutes as well as insurance policy and confirms that irrespective of what is stated in such statute and document, when the application is under Section 163A, irrespective of any other statute or conditions in any other instrument, including policy of insurance, owner and Insurance Company shall make payment to the victim or legal heirs and therefore, I do not see any substance or reason to hold that the Insurance Company is not liable to pay compensation only because there are 15 passengers travelling in a private car, more particularly when claim petition is by the heirs of victim, who died in such incident.
6. So far as other issues regarding act only policy and package policies are concerned, with due respect, it is to be realised and considered Page 8 of 44 C/FA/521/2016 JUDGMENT that the non-obstante clause of Section 163A make all those arguments even strong so far as present claimants are concerned. Moreover, there is no definition or distinguishing provisions in MV Act so as to distinguish the policy in any way; whereas, in fact, such issue has been considered by Tariff Advisory Committee as back as in the year 1978, making it clear that even if the insurance policy does not include the wording "including occupants of the vehicle except they are going for hire or reward", the liability of the Insurance Company certainly covers the liability of the occupants even in a private car.
7. The next question is regarding the liability of the Insurance Company with reference to the nature of policy submitting that liability of the Insurance Company would be different in case of different type of policy issued by them. Though it is certain that liability of the Insurance Company is arising under the M.V. Act and, thereby, it is statutory liability and though there is no separate identity of distinguishable features of different type of policies, day in and day out, the insurance companies are coming forward with a different plea that either they are not liable in view of a particular type of policy or that their liability is limited in particular manner. One such instance is pleaded and tried to be proved in this case also when one of the Insurance Company has pleaded that their policy is `Act Only Policy' and, therefore they Page 9 of 44 C/FA/521/2016 JUDGMENT are not liable to indemnify the owner by payment of compensation to the occupant of the vehicle in private car, the fact remains that practically policy to be issued by the insurer shall be as provided u/S.147 of the M.V. Act, 1988 wherein there is no definition of different type of policies as pleaded by the insurer. Section 147 is reproduced hereunder:-
"147. Requirements of policies and limits of liability: -
(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-
(a) is issued by a person who is an authorised insurer; and
(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)
(i) against any liability which may be incurred by him in respect of the death of or bodily a [injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place :
Provided that a policy shall not be required (1) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 Page 10 of 44 C/FA/521/2016 JUDGMENT in respect of the death of, or bodily injury to, any such employee-
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability.
Explanation.-For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place. (2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1) shall cover any liability incurred in respect of any accident, up to the following limits, namely :-
(a) save as provided in clause (b) the amount of liability incurred;
(b) in respect of damage to any property of a third party, a limit of rupees six thousand :
Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier.
(3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a Page 11 of 44 C/FA/521/2016 JUDGMENT certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed manner; and different forms, particulars and matters may be prescribed in different cases.
(4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe.
(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.
[a] Substituted for the words "injury to any person" by Motor Vehicles (Amendment) Act (54 of 1994), S. 46 (14-11-1994).
OBJECTS AND REASONS:
Clause 147 lays down the requirements of the Policies and the limit of liability in respect of passengers and persons other than passengers in relation to passenger vehicles and goods carriages.-S.O.R."Page 12 of 44
C/FA/521/2016 JUDGMENT 8. The bare reading of the Section makes it
clear that a policy of insurance must insured the person i.e. owner(s) of the vehicle against (i) any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorized representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place and against (ii) the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place.
9. While considering such provision, it is to be recollected that by the amendment of such provision vide the Amendment Act 54 of 1994 (w.e.f. 14.11.1994), the words "including the owner of the goods or his authorized representative carried in the vehicle" were inserted. Such situation arise because till such amendment, in absence of such clarity, the insurance companies were taking a stand that their policies do not cover the liability to pay compensation to the owner of the goods or his representative carried in the goods vehicle. So far as limits of liability is concerned sub section (2) makes it clear that subject to the provisions of sub section (1), a policy of insurance shall cover any liability incurred in respect of any accident for the amount of liability incurred except a limit of Rs.6,000/-Page 13 of 44
C/FA/521/2016 JUDGMENT in respect of damage to any property of a 3rd party, whereas, the proviso of sub section (1) confirms that the policy shall not be required to cover liability in respect of the death, arising out of and in the course of employment, of the employee of a person insured i.e. owner of the policy or in respect of bodily injuries sustained by such an employee arising out of and in the course of his employment other than a liability arising under the W.C. Act, 1923 or to cover any contractual liability.
10. Therefore, when there is specific exclusion clause in proviso to sub section (1) as referred in sub section (2), the insurance policy must be a policy which covers the risk in respect of the death or or bodily injuries to any person, including owner of the goods or his authorized representative carried in the vehicle. Thereby, when there is no restriction or exclusion of covering the occupant of the vehicle except the driver or may be conductor for whom as per the proviso of policy may not cover the risk, for rest of the persons excluding the owner being party to the contract of insurance practically Insurance Company is liable to pay compensation to indemnify the owner. Such interpretation is quite clear and obvious when phrase "injury to any person" is used in the section without making any differentiation between the occupant or non-
occupant of the vehicle, on the contrary clarifying that even in goods vehicle if a person Page 14 of 44 C/FA/521/2016 JUDGMENT is travelling with the goods, the insurance company is liable to indemnify the insured / owner.
11. But, unfortunately as the words "including the owner of the goods or his authorized representative carried in the vehicle" were missing even in M.V. Act, 1988; so also in M.V. Act, 1939 and when insurance companies were taking a stand to exonerate their liability of making payment of compensation to such victims and, thereby to indemnify the owner, the legislature has amended the above words so as to include even owner of the goods travelling in a goods vehicle though policy of insurance regarding rules under the Act generally prohibits travelling of a person in a goods vehicle. Thereby, when there was no distinguishable features of the phrase "Any Person" the legislature has to widen the scope of liability of the Insurance Company because of their different stand.
12. But, unfortunately in similar situation for private vehicle, in absence of similar amendment, the insurance companies are taking such false and negative plea submitting that their policy does not cover the risk of occupant of the vehicle though there is no such distinguishable provision in the Statute.
13. As per the provisions of Section 147 of the Page 15 of 44 C/FA/521/2016 JUDGMENT Motor Vehicles Act, 1988 a policy of insurance must be a policy which insures the person against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. The policy shall also cover any liability incurred in respect of any accident against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place. Though policy may not require to cover liability in respect of the death, arising out of and in the course of employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 in respect of the death of, or bodily injury to any such employee who are either (a)engaged in driving the vehicle, or (b)if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or (c)if it is a goods carriage, being carried in the vehicle, or (d)to cover any contractual liability. The explanation to Sub-Section (1) declares, for the removal of doubts, that the death of or bodily injury to any person or damage to any property of Page 16 of 44 C/FA/521/2016 JUDGMENT a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.
14. The Statute confirms that liability to pay compensation is with respect to `Any Person' and there is no diversion of 3rd person, because 'Any Person' certainly includes 3rd person. Similarly, when the Statute provides exclusion clause that for whom liability is not to be included, there is no reference of "3rd party or occupant of private car" in such exclusion and, therefore also, it is clear that `Any Person' certainly includes all persons including 3rd party but accept class of persons specifically excluded under the Statute. The overall reading of the provision makes it clear that if we believe the submission of insurance companies that occupant of the car are not insured in policy which is compulsory, then, practically, they are the only class of people who are excluded from coverage of insurance by the insurance companies, which is certainly not the scope of the Statue.
15. In Dr. S. Jayaram Shetty V/s National Insurance Co. Ltd, reported in 2002 ACJ 2054, meaning of third party has been held on the lines of the meaning given in Stroud's judicial Page 17 of 44 C/FA/521/2016 JUDGMENT dictionary. Meaning of third party has been given in Stroud's Judicial Dictionary, as below:
"Third party risks: Road Traffic Act, 1930(20 & 21, Geo. 5, 4C, 5C. 43-S.35) connotes that the insurer is one party to the contract that the policy holder is another party, and the claims made by others in respect of the negligent use of the car may be naturally described as claims by third party."
16. In view of above definition, arguments of ld. counsel for the insurance cos. are not tenable. In National Insurance Company Ltd V/s Fakir Chand, reported in A.I.R 1995 J & K 91, it has been held that in the context of M.V Act, 1988, the expression third party being other than the contracting parties to the insurance policy, should include everyone, be it a person travelling in another vehicle, one walking on the road or a passenger in the vehicle itself, which is subject matter of insurance policy. Every insured takes out an insurance policy against a third party risk, and enters into a contract with the insurer, only with the motive, intention and purpose of covering the risks which may arise in relation to claims lodged by a third party against him.
17. In National Insurance Co. Ltd V/s Nirmala Bai and others, reported in 2000 ACJ 932, it has been held that the expression 'third party' clearly indicates that it refers to a party who is neither the first party nor the second party Page 18 of 44 C/FA/521/2016 JUDGMENT to a contract of insurance and would include everyone, be it a person travelling in the vehicle itself or any other vehicle or one walking on the road.
18. In United India Insurance Co. Ltd V/s Siddanna Nimbanna Jawali and another, reported in 2001 ACJ 1774, it has been held that what is excluded from the ambit of expression of 'third party' is the owner of the vehicle. Where the owner of the vehicle has been injured in an accident caused by negligence of his own driver, he cannot maintain a claim of compensation against insurer of the vehicle.
19. In view of the mandate of above mentioned judgments which are never overruled or referred before the Hon'ble Supreme Court, I have no hesitation to observe that claimant injured being passenger in matador - one of the vehicle involved in accident was a third party with reference to insurance policies of both vehicles and therefore insurance cos of both vehicles are liable to indemnify their insured by making payment of compensation to him.
20. Insurance is a contract whereby one party, the insurer, undertakes in return for a consideration - the premium, to pay the other - the insured or assured, in the event of the injuries sustained to any person by use of the vehicle so insured a sum of money payable to the Page 19 of 44 C/FA/521/2016 JUDGMENT victim of such event, where in the phrase "Any Person" cannot exclude third party to such contract as pleaded by the insurance company on the ground that their policy is of different in nature and covers different risk but do not cover legal liability fasten upon the insured by the statute, so as to indemnify such insured.
21. Motor third-party insurance or third party liability cover, which is also referred to as the 'act only' cover by the insurance cos., is a statutory requirement under the Act. It is referred to as a 'third-party' cover since the beneficiary of the policy is someone other than the two parties involved in the contract i.e. the insured and the insurance company. The policy does not provide any benefit to the insured; however, it covers the insured's legal liability for death/disability of third party loss or damage to third party property.
22. The questions thus arise would be what is third party insurance? Who is a third party? Why third party insurance is compulsory for all vehicles under the Motor Vehicles Act, 1988? What are the salient features of third party insurance?
23. There could be only two different kinds of insurance involved in the damages system. One is Third Party liability insurance, which is called liability insurance or act policy by-insurance Page 20 of 44 C/FA/521/2016 JUDGMENT companies and the other one is first party insurance, which is called comprehensive or package policy. However, there is nothing in the MV Act to distinguish or differentiate the policies as such.
24. A third party insurance policy is a policy under which the insurance company agrees to indemnify the insured person, if he is sued or held legally liable for injuries or damage done to a third party. The insured is one party, the insurance company is the second party, and the person who claims damages against insured because of the injuries sustained by the use of the vehicle is the third party except driver and employees on the vehicle, who are having some connection with the owner of the vehicle with reference to the functioning of the vehicle.
25. Third party insurance is compulsory for all motor vehicles. In G. Govindan v. New India Assurance Co. Ltd., Third party risks insurance is mandatory under the statute .This provision cannot be overridden by any clause in the insurance policy. Third party insurance does not cover injuries to the insured himself but to the rest of the world who is injured by the insured. Beneficiary of third party insurance is the injured third party, the insured or the policyholder is only nominal beneficiary of the policy. In third party policies the premiums do not vary with the value of what is being insured Page 21 of 44 C/FA/521/2016 JUDGMENT because what is insured is the 'legal liability' and it is not possible to know in advance, what that liability will be. Third party insurance is almost entirely fault-based thereby one has to prove the fault of the insured first and that injury occurred from the fault of the insured to claim damages from him but now with the amendment provision of Section 163A even fault of insured is not material if claimant chose to file claim under Section 163A. The third party insurance is unpopular with insurance companies as compared to first party insurance, because they never know the maximum amounts they will have to pay under third party policies, which they are unable to avoid being statutory policy, and probably because of such situation insurance cos are always trying to misguide the courts by their lucid submissions but without supporting evidence to held that their liability is limited even towards third party, which is not the correct position of law and its intention.
26. The Motor Vehicles Act, 1988 which came into force on 1st July 1988 and which is divided into XIV Chapters, 217 Sections and 2 schedules, makes it compulsory for every motor vehicle to be insured. Chapters X, XI and XII of the 1988 Act deals with compensation provisions. Sections 140 to 144 (Ch.X) deal with liability without fault in certain cases. Chapter XI (Ss. 145 to 164) deal with insurance of motor vehicles against third party risks.
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27. Chapter VIII of the 1939 Act and Chapter XI of the 1988 Act have been enacted on the pattern of several English Statute. In order to find out the real intention for enacting S.96 of the 1939 Act, which corresponds to S.149 of the 1988 Act, it is relevant to trace the historical development of the law for compulsory third-party insurance in England. Prior to 1930, there was no law of compulsory insurance in respect of third party rights in England. As and when an accident took place an injured used to bring action against the motorist for recovery of damages.
28. However, in many cases it was found that the owner of the offending vehicle had no means to pay to the injured or the dependant of the deceased and in such a situation, the claimants were unable to recover damages. It is under such circumstances that various legislations were enacted. To meet the situation it is for the first time 'the Third Parties' Rights Against Insurance Act, 1930' was enacted in England. The provision of this Act found place in S.97 of the 1939 Act, which gave to the third party a right to sue insurer directly. Subsequently, 'the road traffic Act, 1930' was enacted which provided for compulsory insurance for Motor Vehicles. The provisions of this Act were engrafted in S.95 of the 1939 Act and S.146 of the 1988 Act. It is relevant that under S.38 of the English Act of 1930, certain conditions of insurance policy were Page 23 of 44 C/FA/521/2016 JUDGMENT made ineffective so far as third parties were concerned. The object behind the provision was that the third party should not suffer on account of failure of the insured to comply with those terms of the insurance policy.
29. Subsequently in 1934, the second Road Traffic Act was enacted. The object of this legislation was to satisfy the liability of the insured. Under this enactment, three actions were provided .The first was to satisfy the award passed against the insured. The second was that, in case the insurer did not discharge its liability the claimant had the right to execute decree against the insurer. However, in certain events, namely, what was provided in section S.96 (2) (a) which corresponds to section 149 (2) (a) of the 1988 Act, the insurer could defend its liability.
30. The third action provided for was contained in S.10 (3) of the Road Traffic Act. Under this provision, the insurer could defend his liability to satisfy decree on the ground that insurance policy was obtained due to misrepresentation or fraud. This provision also found place in S.149 (2) (b) of the 1988 Act. While enacting the 1939 Act and the 1988 Act, all the three actions were engrafted in S.96 of the 1939 Act and Section 149 of the 1988 Act. However, neither the 1939 Act, nor the 1988 Act conferred greater rights on the insurer than what had been conferred in English Law. Thus, in common law, an insurer was not Page 24 of 44 C/FA/521/2016 JUDGMENT permitted to contest a claim of a claimant on merits, i.e. offending vehicle was not negligent or there was contributory negligence. The insurer could contest the claim only on statutory defences specified for in the statute. Thus while enacting Chapter VIII of the 1939 Act or Chapter XI of the 1988 Act, the intention of the legislature was to protect third party rights and not the insurers even though they may be nationalized companies.
31. Object of prohibition on use of motor vehicles without statutory insurance policy, is to enable the third party suffering injuries from use of the motor vehicle to get damages irrespective of the financial capacity or solvency of the driver or the owner.
32. Chapter 11 (Section 145 to 164) provides for compulsory third party insurance, which is required to be taken by every vehicle owner. It has been specified in Section 146(1) that no person shall use or allow using a motor vehicle in public place unless there is in force a policy of insurance complying with the requirement of this chapter. Contravention of the provisions of section 146 is an offence and is punishable with imprisonment which may extend to three months or with fine which may extend to one thousand rupees or with both (section 196).Section 147 provides for the requirement of policy and limit of liability. Every vehicle owner is required to Page 25 of 44 C/FA/521/2016 JUDGMENT take a policy covering against any liability, which may be incurred by him in respect of death or bodily injury including owner of goods or his authorized representative carried in the vehicle or damage to the property of third party and death or bodily injury to any passenger of a public service vehicle. According to this section, the policy may not require to cover the liability of death or injuries arising to the employees in the course of employment except to the extent of liability under Workmen Compensation Act. Under Section 149 the insurer have been statutorily liable to satisfy the judgment and award against the person insured in respect of third party risk.
33. Insurance Companies have been allowed no other defence except: (1) Use of vehicle for hire and reward not permit to ply such vehicle; (2) For organizing racing and speed testing; (3) Use of transport vehicle not allowed by permit; (4) Driver not holding valid driving license or have been disqualified for holding such license and (5) Policy taken is void as the same is obtained by non-disclosure of material fact.
34. The Insurance Company cannot avoid the liability except on the grounds and not any other ground, which have been provided in Section 149(2). Hon'ble the Supreme Court has, while dealing with the provisions of Motor Vehicle Act, held that even if the defence has been pleaded Page 26 of 44 C/FA/521/2016 JUDGMENT and proved by the Insurance Company, they are not absolve from liability to make payment to the third party but can receive such amount from the owner-insured. The courts one after another have held that the burden of proving availability of defence is on Insurance Company and Insurance Company has not only to lead evidence as to breach of condition of policy or violation of provisions of Section 149(2) but has to prove also that such act happens with the connivance or knowledge of the owner. If knowledge or connivance has not been proved, the Insurance Company shall remain liable even if defence is available.
35. According to the provisions of this section, the policy of insurance must be issued by an authorized insurer. It must be as per requirements as specified in subsection (2). It must insure against liability in respect of death or bodily injury or damage to property of a third party. "Third party" includes owner of the goods or his authorized representative carried in the vehicle and any passenger of a public service vehicle.
36. The policy of insurance must cover:
1. Liability under the Workmen's compensation Act, 1923 in respect of death or bodily injury to any such employee: -
(a) Engaged in driving the vehicle, or Page 27 of 44 C/FA/521/2016 JUDGMENT
(b) The conductor or ticket examiner if it is a public service vehicle, or
2. Any contractual liability.
37. Section 147 has to be given wider, effective and practical meaning so that it may benefit various categories of persons entitling them to claim compensation from the insurer or the insured or both. Insurer's liability commences as soon as the contract of insurance comes into force. The liability remains in existence during the operation of the policy. If the insurer has been a victim of fraud, he can recover the amount from the insured by a separate action against him.
38. Third party insurance protects the interest of a third party who becomes the victim of accident or injury caused by the fault of the insured. So any liability arising on the insured by the third party is mitigated by the insurance company. Third party insurance is compulsory under the motor vehicles Act, 1988. As the third party insurance is mandatory so it cannot be overridden by any clause in the insurance policy.
39. It is the duty of insurers to satisfy the judgments and awards against persons insured in respect of third party risks.
40. It seems that unfortunately insurance companies are either failed to realize above Page 28 of 44 C/FA/521/2016 JUDGMENT position or selectively submits that though they are liable to pay compensation to 3rd party, the occupant of the vehicle is "Occupant of the Vehicle and not a 3rd party". I fail to realize that when there is no definition of `3rd party' in the Act and, thereby when we are talking about 3rd party we have to identify 1st party and 2nd party which are certainly with reference to the policy document being a contract between 1st party and 2nd party i.e. insured - owner of the vehicle and Insurance Company which enters into an agreement whereby Insurance Company accept the liability to indemnify the owner - insured against any liability which includes "any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorized representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place". It is also clear and obvious that the above words "including the owner of the goods or his authorized representative carried in the vehicle" were absent in Section 95 of the M.V. Act, 1939 otherwise Section is pari-materia same with the Section 147 which goes to show that though there is several amendment in the M.V. Act, 1988, the basic principle of Statute is not changed so as to wipe out the basic principle of judicial pronouncement based upon the provision of M.V. Act, 1939 at the relevant time.
Page 29 of 44C/FA/521/2016 JUDGMENT 41. With this reference if we recollect that
though in 1939 Act, legislature has not disclosed the clarification regarding `any person' and though because of the different stand of the insurance companies before different courts in different matters, now, as late as in 1997, the legislature has amended the inclusion clause to the phrase `any person' so as to include the owner of the goods travelling in goods vehicle; in fact, similar situation was there as back as in the year 1978 when Tariff Advisory Committee has to issue a circular which reads as under: -
TARIFF ADVISORY COMMITTEE BOMBAY REGIONAL COMMITTEE "Circular M.V. No. 1 of 1978 Bombay, 17th March 1978.
INSURANCE COMPANY'S LIABILITY IN RESPECT OF GRATUITOUS PASSENGERS CONVENED IN A PRIVATE CAR - STANDARD FORM FOR PRIVATE CAR COMPREHENSIVE POLICY - SECTION II LIABILITY TO THIRD PARTIES I am directed to inform Insurers that advices have been received from the Tariff Advisory Committee to the effect that since the industry had all these years been holding the view that a Comprehensive Private Car Policy Covers passenger liability the same practice should continue. In order to make this intention clear, Insurers are requested to amend Clause 1(a) of Section II of the Standard Private Car Policy by incorporating the following words after the words "death of or bodily injury to any person" appearing therein :-
"Including occupants carried in the motor car provided that such occupants are not carried for hire or reward".
I am accordingly to request Insurers to make Page 30 of 44 C/FA/521/2016 JUDGMENT the necessary amendment on sheet 38 of the Indian Motor Tariff pending representing of the relative sheet.
All existing policies may be deemed to incorporate the above amendment automatically as the above decision is being brought into force with effect from 25th March 1977.
. Sd/-
. REGIONAL SECRETARY"
42. Above circular is quoted in the judgment of Division Bench of this Court reported in 1981 GLR 555 between Harshvardhatiya Rudraditya v. Jotindra Chimanlal Parikh.
43. Thereby, considering the language of the circular it becomes clear that though Tariff Advisory Committee has disclosed that for all those years Insurance Company was holding the view and same is to continue but for making such intention clear insurer - insurance companies were requested to amend the clause regarding liability in their policies so as to read it as if certain words are there in the policy even if they are not printed i.e. including occupants carried in the motor car provided that such occupants are not carried for hire or reward.
44. However, unfortunately, when such clarity is not made part of the section in the Act of 1988 though wider coverage is confirmed by amendment in the year 1994 so as to include the liability even in case a goods vehicle for a person Page 31 of 44 C/FA/521/2016 JUDGMENT travelling in goods vehicle with goods, unfortunately, insurance companies are repeatedly taking the same stand which was very well clear as back as in the year 1978 that in absence of inclusion of the words "including occupants carried in the motor car provided that such occupants are not carried for hire or reward,"
they are not liable to pay compensation to the occupant in private car so as to indemnify the owner against such liability, which is otherwise statutory liability and Insurance Company cannot escape themselves from such liability. For making such plea effective, the insurance companies have come forward with different identification of the policies and named it as `Act Only Policy' and `Comprehensive / Package Policy' etc.
45. As aforesaid, though there is no bifurcation / distinguishable features of insurance policy in M.V. Act, even if, insurance companies are differentiating their policy documents based upon their coverage of risk, the fact remains that their liability to indemnify the owner by making the payment of compensation to the victim of road accident arising out of the use of motor vehicle in public place when there is valid insurance policy of any nature because the act do not identify or deviate or restrict the liability for any such class of people viz; occupant of the car.
46. It is surprising to note that when Insurance Page 32 of 44 C/FA/521/2016 JUDGMENT Company is identifying 3rd party as somebody outside the vehicle only probably they fail to realize that the word 3rd party is not with reference to the car but with reference to the contract in form of insurance policy wherein insured and insurer are 1st and 2nd party and rest of the person becomes 3rd party to such insurance policy which includes in the clause `Any Person' appears in section 147 of the Act and other proviso of the Act when it does not restrict the liability with reference to occupant of the car in any manner whatsoever except for hire and reward as disclosed in circular dated 17.3.1978 which is reproduced hereinabove.
47. I have no option but to discuss all such historical development for the simple reason that unfortunately insurance companies are taking disadvantage of their position as seen from the above Harshvardhatiya (Supra) wherein it is clear that till 25.3.1977, insurance companies were pleading before the Courts that they are not liable to pay compensation to the occupant of private car but when Tariff Advisory Committee has issued a circular stating that "....the industry had all these years been holding the view that a Comprehensive Private Car Policy Covers passenger liability the same practice should continue" and "....in order to make this intention clear..."
48. The reading of the decision in the case of Page 33 of 44 C/FA/521/2016 JUDGMENT Harshvardhatiya (Supra) goes to show that in-fact in several cases including the case of Pushpabai Parshottam Udeshi v. M/s.Ranjit Ginning & Pressing Co. Pvt. Ltd. reported in AIR 1977 SC 1735; so also in the case of Harshvardhatiya (Supra), initially, the insurance companies had taken a stand that Insurance Company would not be liable to pay compensation to the gratuitous passenger of private car. However, language of the circular goes to show that in-fact the insurance industry had accepted such liability and circular is issued only with order to make this intention clear. Therefore, there is practically no change or possibility of different judicial decision when intention of the Insurance Company was clear to cover the liability of occupant of car being a gratuitous passenger.
49. But unfortunately, even after couple of decades, all the insurance companies are regularly taking the same defence in different matters before different Courts and such matters had been dragged upto the Hon'ble Supreme Court since long though it is clear that (1) words `any person' would include gratuitous passenger, (2) Section 95 requires a policy to cover the risk to passengers who are not carried for hire or reward and (3) the expression `any person' in the insurance policy would include an occupant of the car who is gratuitously travelling in the car. Some of such cases are as under:-
Page 34 of 44 C/FA/521/2016 JUDGMENT
1) Amrit Lal Sood v. Kaushalya Devi Thapar
reported in 1998(3) SCC 744;
2) Prabhudayal Agarwal v. Saraswati Bai
reported in 1975 ACJ 355;
3) Premier Insurance Co. Ltd. v. Gambhirsing
Galabsing reported in AIR 1975 Guj 133;
4) Madras Motor and General Insurance Co. Ltd.
v.Katanreddi Subbareddy reported in 1975 ACJ 95;
5) New Asiatic Insurance Co. Ltd. v. Pessumal Dhanamal Aswani reported in AIR 1964 SC 1736.
50. Unfortunately, even after all such admission by the insurance companies at the relevant time so as to consider that it was their intention to cover the liability of gratuitous passenger in a private car, the same issue has been repeatedly raised in several matters upto the Hon'ble Supreme Court and, therefore, there are different judgments on the issue. However, the factual details of some judgments discussed herein would certainly goes to show that insurance companies are taking undue advantage of their situation.
51. It cannot be ignored that even in case of Pushpabai (Supra), the advocate of the Insurance Company has certainly pleaded and submitted before the Hon'ble Supreme Court that the scope of the statutory insurance does not cover the injuries suffered by the passengers. It is unfortunate that during those days, though stand Page 35 of 44 C/FA/521/2016 JUDGMENT of the Insurance Company should be as per the disclosure of intention even in the name of making such intention clear by the Tariff Advisory Committee in its circular dated 17.3.1978 and, thereby, though insurance companies were liable to pay compensation to the occupant of the vehicle, insurance companies were collecting the premium for such liability in addition to basic premium and unfortunately, that stand was approved by the Hon'ble Supreme Court but even thereafter i.e. after the Hon'ble Supreme Court's judgment dated 25.3.1977, as late as on 17.3.1998 i.e. after a year, the Tariff Advisory Committee has issued a circular making it effective from 25.3.1977 i.e. even from the date of judgment of Hon'ble Supreme Court probably to honour the judgment of the Hon'ble Supreme Court and not to make it a nullity. However, it would not change their stand to confirm by their circular and the wordings therein that they are issuing such circular to make their intention clear that they are holding the liability for the occupant of the private care and, therefore, it was stated in such circular that irrespective of any wordings in the policy, the following wordings shall be incorporated with further direction of existing policy be deemed to be incorporated the above amendment automatically as the above decision is being brought into force w.e.f. 25.3.1977.
"Including occupants carried in the motor Page 36 of 44 C/FA/521/2016 JUDGMENT car provided that such occupants are not carried for hire or reward".
52. Let us start with what is emerging from the case of Bhagyalakshmi v. United India Insurance Co. Ltd. being Civil Application No.3335/2009. Unfortunately, though its order dated 6.5.2009 is reported in several law journals including 2009(7) SCC 148, its final order dated 22.1.2014 was never published in any law journal till date i.e. almost for 5 years.
53. The only reported order in the case of Bhagyalakshmi (Supra) is dated 6.5.2009 published in 2009(7) SCC 148 and several other law journals. The perusal of such judgment shows that the Hon'ble Supreme Court has considered several decisions on the subject under reference i.e. liability of the Insurance Company for the occupant in private car i.e. gratuitous passenger of private vehicle. After referring several previous decisions, the Hon'ble Supreme Court is of the opinion that there are conflicting decisions and there is two issues i.e. liability for gratuitous passenger in private vehicle for `Act Only Policy' and `Package / Comprehensive Policy.' Therefore, by its order dated 6.5.2009 the matter was referred to larger bench.
54. Whereas, the final order dated 22.1.2014, in such Civil Appeal No.3335/2009 in the case of Bhagyalakshmi (Supra), Three Judges of Hon'ble Supreme Court has passed following order:-
Page 37 of 44C/FA/521/2016 JUDGMENT Various legal issues are involved in the matter and thus, the matter has been referred to a Bench of three Judges. However, while hearing of the case before the High Court in Yashpal Luthra v. United India Insurance Co. Ltd. reported in 2011 ACJ 1415, the General Manager of the Insurance Company involved herein appeared in person and made a statement that they will make a statement before this Court in this appeal to the following effect:
"The United India Insurance Co. Ltd. Has raised this plea before the Hon'ble Apex Court in the case bearing Appeal No.3335/2009. The company shall inform the advocate on record to place on record these instructions and to inform the Court that it is the policy of the company to bear liability in respect of occupants in a private car and pillion rider on two-wheeler under Package / Comprehensive Policy. I admit that B.S. Baliyan, Manager, United India Insurance Co. Ltd. has made erroneous statement before this Court on 9.9.2009 and 26.10.2009."
In view of the above and after hearing Mr.Rajesh Mahale, learned counsel for the appellants and Mr.P.R. Sikka, learned counsel appearing on behalf of the respondent-Insurance Company, we dispose of this appeal observing that in view of the statement made by the General Manager before the High Court, the appellants herein shall be entitled for all consequential benefits. Therefore, the respondent-Company is directed to re-calculate the entitlement of the appellant and make the payment within a period of eight weeks from today.
In view of the above, the appeal is allowed and the impugned judgment of the High Court Page 38 of 44 C/FA/521/2016 JUDGMENT is set aside."
55. The bare reading of above judgment makes it clear that though issue has been resolved as late as in the year 2011 in the case of Yashpal Luthra v. United India Insurance Co. Ltd. reported in 2011 ACJ 1415 and that too admission by the Insurance Company, the insurance companies are repeatedly taking the same ground in different matters that they are not liable to indemnify the owner for gratuitous passenger in private car.
56. As already stated herein above, there cannot be any differentiation between the contract of insurance either as an Act Policy or Comprehensive Policy wherein insurance companies are probably charging additional premium so as to cover the liability for the occupant of the vehicle when such liability has been admitted by insurance companies, as back as on 17.3.1978, which is discussed hereinabove. It is undisputed fact that though there is several amendment in M.V. Act, there is no change in basic principle of compulsory insurance of vehicle and liability of Insurance Company to pay compensation to `any person,' who receives injuries out of the use of the M.V. Act. The perusal of order dated 20.1.2014 in Bhagyalakshmi (Supra) read with judgment of Yashpal Luthra (Supra) makes it clear that one Mr.B.S. Baliyan, Manager, United India Insurance Co. Ltd. (which is party before us also) has made erroneous statement before the Page 39 of 44 C/FA/521/2016 JUDGMENT Court on 9.9.2009 and 26.10.2009. It is also clear that thereby, the General Manager of the same Company had appeared in person before the Delhi High Court in the case of Yashpal Luthra (Supra) and made such statement that they will make the same statement before the Hon'ble Supreme Court in the case of Bhagyalakshmi (Supra) admitting their liability. However, such statement was not made in the case of Bhagyalakshmi (Supra) till the year 2014 i.e. for more than 3 years.
57. The bare reading of above two judgments makes it clear that at one point of time, one of the officer of the Insurance Company had made wrong statement before the Court and when Court has called upon few witnesses from Insurance Company and Insurance Regulatory and Development Authority (herein after referred to as `IRDA' for short) in its powers u/S.165 of the Indian Evidence Act so as to verify the factual position the witness has no option but to disclose the truth. This fact is on record of the Delhi High Court and becomes part of the judgment of the Delhi High Court in case of Yashpal Luthra (Supra). The relevant part of the judgment starts from paragraph Nos.14 till 28 which makes the above position clear as discussed hereinabove with reference to circular dated 17.3.1978 by Tariff Advisory Committee and liability of the insurance company towards occupant of the private car.
Page 40 of 44C/FA/521/2016 JUDGMENT 58. However, unfortunately, even after such clarity there was wrong statement before the
Delhi High Court and similar wrong stand is being repeatedly taken before the different Courts by referring the nature of policy differently as Act Policy and Package Policy and, therefore, when in a given case, the policy was probably Package Policy, all the judgments are referring that in case of Package Policy, liability of gratuitous passenger in private car is covered.
59. However, the above discussion and actual position emerging from circular dated 17.3.1978 makes it clear that irrespective of proper disclosure, the liability of the Insurance Company for the owner of the private care includes liability for "death of or bodily injury to any person including occupants carried in the motor car provided that such occupants are not carried for hire or reward." Irrespective of non- disclosure of such clause in policy because the circular makes it clear that such amendment is deemed to be incorporated automatically at-least w.e.f. 25.3.1977 since the intention of the Insurance Company is to hold such liability for all the years.
60. Therefore, irrespective of different disclosure by different Officers of different companies either before the Delhi High Court in the case of Yashpal Luthra (Supra) or in any Page 41 of 44 C/FA/521/2016 JUDGMENT other manner whatsoever, the fact remains that Insurance Company cannot be exonerated from such liability.
61. It is unfortunate that insurance companies are wasting the valuable Court hours in deciding such issue repeatedly by different Courts, which results into different decisions at different point of time.
62. Therefore, in the present case, though initially matter was kept for passing the order u/S.165 of the Indian Evidence Act as done by the Delhi High Court in the case of Yashpal Luthra (Supra) and though some such short order is already passed in Misc. Civil Application No.1/2018 in First Appeal No.5355/2008 and thereby though it is the duty of the nationalized Insurance Company; so also IRDA to clarify the situation before the Court, the fact remains that because of selective disclosure by the officers of such institutions, there are different orders and, therefore, I am of the clear view that instead of keeping all such issues pending or even to calling any of such officers u/S.165 of the Indian Evidence Act so as to disclose correct position on record, it would be appropriate to fasten the liability of the Insurance Company for occupant in the private vehicle irrespective of nature of policy when third party insurance is compulsory and when it can never be said that occupant of car is his third party to the Page 42 of 44 C/FA/521/2016 JUDGMENT contract of insurance.
63. Though learned advocate for the insurance companies are relying upon the decision in the case of Oriental Insurance Co. Ltd. v. Surendra Nath Loomba reported in 2012 LawSuit(SC) 756 and National Insurance Co. Ltd. v. Balakrishnan reported in 2012 LawSuit(SC) 757, the fact remains that practically in all such cases of Hon'ble Supreme Court has remanded the matter back to the High Court and probably decision in the case of Yashpal Luthra (Supra) was not brought to the notice of the Hon'ble Supreme Court in any of such cases.
64. Therefore, considering the above discussion, I hold that the Insurance Company is certainly liable to compensate the occupant of the private vehicle irrespective of nature of policy because there is nothing like different type of policy in the Statute and the liability of the Insurance Company is certainly statutory and, therefore, they cannot escape from such liability.
65. In view of above facts and circumstances, there is substance in the appeal preferred by the claimants against the decision of the Tribunal exonerating the liability of the Insurance Company and therefore, for the above reasons and discussion, the appeal needs to be allowed by modifying the award suitably. Thereby, the appeal Page 43 of 44 C/FA/521/2016 JUDGMENT is partly allowed. The impugned award is to be modified so as to confirm that the amount of compensation is to be paid by the Insurance Company by indemnifying the owner. However, since all these issues are being repeatedly raised in different matters, and there are different decisions at different point of time, let there be liberty to the Insurance Company to agitate said issued if they so desire. Thereby, it is made clear that irrespective of confirming liability of the Insurance Company as aforesaid, the Insurance Company is free to agitate the issue in appropriate proceedings against the owner, if they are under the impression that even after the above discussion, their policy does not cover the liability of occupants of private car.
66. The First Appeal is partly allowed in aforesaid terms. Thereby, the impugned award confirming that the Insurance Company has to pay the amount of compensation as per the award. Thereby, now, it is made clear that Insurance Company shall deposit the amount with interest from the date of application till its realisation before the Tribunal within 45 days from the date of modified award.
67. Direct service is permitted.
(S.G. SHAH, J) BINOY B PILLAI Page 44 of 44