Allahabad High Court
Icici Lombard General Insurance Comp. ... vs Nirmala Devi Jaiswal And Another on 31 January, 2020
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 6
Case :- FIRST APPEAL FROM ORDER No. - 5 of 2010
Appellant :- Icici Lombard General Insurance Comp. Ltd. Through Manager
Respondent :- Nirmala Devi Jaiswal And Another
Counsel for Appellant :- Aanand Mohan,Anchal Mishra,Anil Kumar Srivastava
Counsel for Respondent :- M.E.Khan
Alongwith
Case :- FIRST APPEAL FROM ORDER No. - 17 of 2010
Appellant :- Icici Lombard General Insurance Comp. Ltd. Through Manager
Respondent :- Vimla Devi Jaiswal And Another
Counsel for Appellant :- Aanand Mohan,R.N.Pandey
Counsel for Respondent :- A.K.Srivastava,Anchal Mishra,Rakesh Pratap Singh
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Hon'ble Jaspreet Singh,J.
Heard Shri Anil Kumar Srivastava learned counsel for the appellants Insurance Company in both the appeals and the learned counsel for the respondent no.1 Nirmala Devi Jaiswal in FAFO No.5 of 2020.
None has put in appearance on behalf of the respondent in FAFO No.17 of 2010.
The above two appeals i.e. FAFO No.5 and FAFO No.10 arise out of an common accident. Two separate claim petitions were preferred and therefore two appeals have been filed though the facts and the questions raised by the insurance company is common in both the cases, accordingly both appeals have been heard together and is being decided by a common judgment.
Briefly the facts are that on 10.06.2007 at about 2.00 P.M. the claimant-respondent, namely, Nirmala Devi the claimant of Claim Petition No.243 of 2007 alongwith Vimla Devi Jaiswal the claimant of Claim Petition No.245 of 2007 were travelling in a Santro Car bearing number UP 42 K-1229. The aforesaid vehicle belonged to Shivam Jaiswal.
It was averred in the claim petition that the claimants alongwith other relatives were travelling and while the Santro Car reached Sikandarpur trisection in Police Station Atrauliya, District Azamgarh, a cyclist suddenly came in front and in order to save the said cyclist, the car went out of control and hit a tree. The persons sitting in the aforesaid car received injuries and it is in the aforesaid backdrop that the aforesaid two claim petitions came to be filed.
The tribunal framed the relevant issue and after dealing with the evidence in Claim Petition No.243 of 2007 awarded a sum of Rs.81,736 alongwith 9% interest whereas in Claim Petition No.245 of 2007 a sum of Rs.1,03,155/- alongwith 9% interest has been awarded by means of award dated 08.09.2009 and 09.10.2009 respectively. Claim Petition No.423 of 2007 has given rise to FAFO No.5 of 2010 whereas Claim Petition No.245 of 2007 has given rise to FAFO No.17 of 2010.
Learned counsel for the insurance company in both the above appeals have raised two submissions:-
(i) It has been submitted that since the claim petition was preferred under Section 166 of the Motor Vehicles Act, in order to succeed, it was incumbent upon the claimants to have proved that the accident had occurred on account of the negligence. Since there was no negligence proved accordingly, the tribunal has erred in granting the aforesaid amount as compensation.
(ii) The other submission is that since the claimants were the occupants of the car which hit the tree therefore they cannot be treated as 3rd party accordingly no claim could have been granted in their favour.
The learned counsel for the respondent in Claim Petition No.5 of 2010 has submitted that the mere fact that the driver of the Santro Car hit the tree and admitted that this was on account of the fact that he tried to save the cyclist who had suddenly come in front of the car, on the road, implies that there has been some negligence and therefore it cannot be said that the accident occurred without any negligence. It has also been submitted that the occupants of the car are covered in the comprehensive/package policy and therefore the tribunal has not erred in the grant of compensation and the appeal does not merit consideration and deserves to be dismissed.
The Court has heard the learned counsel for the parties and also perused the record.
In pursuance of the order passed by this Court dated 24.01.2020 learned counsel for the appellant has submitted the copy of the insurance policy alongwith the supplementary-affidavit dated 28.01.2020 which is on record. The facts has noticed above are not disputed. It is no doubt true that the occupants were travelling in Santro Car and the driver in order to save the cyclist could not control the said car which hit a tree as a result the claimants suffered injuries.
The tribunal after considering the evidence found that the accident is not disputed. It is also not disputed that the occupants were travelling in the said car coupled with the fact that the driver had a valid and effective driving licence and being a package policy the occupants would also be covered under the aforesaid policy.
The Apex Court in the case of Jagtar Singh Vs. Sanjeev Kumar and others reported in 2018 (15) SCC page 189 after considering the earlier decision in the case of National Insurance Company Ltd. Vs. Balkrishnan and another reported in 2013 (1) SCC page 731. The relevant portion of which reads as under:-
It is submitted by Mr. Yadunandan Bansal, learned Counsel appearing for the appellant that the controversy is covered by the two-Judge Bench decision in National Insurance Co. Limited Vs. Balakrishnan and another MANU/SC/0987/2012 (2013) 1 SCC 731, wherein the Court has held thus:
"It is extremely important to note here that till 31st December, 2006 the Tariff Advisory Committee and, thereafter, from 1st January, 2007, IRDA functioned as the statutory regulatory authorities and they are entitled to fix the tariff as well as the terms and conditions of the policies by all insurance companies. The High Court had issued notice to the Tariff Advisory Committee and the IRDA to explain the factual position as regards the liability of the insurance companies in respect of an occupant in a private car under the "comprehensive/ package policy". Before the High Court, the Competent Authority of IRDA had stated that on 2nd June, 1986, the Tariff Advisory Committee had issued instructions to all the insurance companies to cover the pillion rider of a scooter/motorcycle under the "comprehensive policy" and the said position continues to be in vogue till date. It had also admitted that the "comprehensive policy" is presently called a "package policy". It is the admitted position, as the decision would show, the earlier circulars dated 18th March, 1978 and 2nd June, 1986 continue to be valid and effective and all insurance companies are bound to pay the compensation in respect of the liability towards an occupant in a car under the "comprehensive/package policy" irrespective of the terms and conditions contained in the policy. The competent authority of the IRDA was also examined before the High Court who stated that the circulars dated 18th March, 1978 and 2nd June, 1986 of the Tariff Advisory Committee were incorporated in the Indian Motor Tariff effective from 1st July, 2002 and they continue to be operative and binding on the insurance companies. Because of the aforesaid factual position, the circulars dated 16th November 2009 and 3rd December, 2009, that have been reproduced hereinabove, were issued.
It is also worthy to note that the High Court, after referring to individual circulars issued by various insurance companies, eventually stated thus:-
"In view of the aforesaid, it is clear that the comprehensive/package policy of a two wheeler covers a pillion rider and comprehensive/package policy of a private car covers the occupants and where the vehicle is CA 7546/13 covered under a comprehensive/package policy, there is no need for Motor Accident Claims Tribunal to go into the question whether the Insurance Company is liable to compensate for the death or injury of a pillion rider on a two-wheeler or the occupants in a private car. In fact, in view of the TAC's directives and those of the IRDA, such a plea was not permissible and ought not to have been raised as, for instance, it was done in the present case."
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 (supra) 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 the 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.
As clearly held that in cases where there is a comprehensive/package policy the insurer cannot deny its liability. In light of the above, one limb of the submission of the learned counsel for the appellant fails.
As far as the other submission is concerned that also does not merit consideration for the reason that even though the petition may have been preferred under Section 166 of the Motor Vehicles Act. The fact remains that it is for the tribunal to hold an inquiry and if it comes to the conclusion that a case has been made out, it has to grant the appropriate compensation. In the present case at hand, it is not disputed that the driver could not control the vehicle and hit the tree to save a cyclist. Any person driving ought to be cautious; inasmuch as any cyclist coming on the road is not an uncommon occurrence, therefore, it cannot be said that no negligence was made out.
In light of the above, this Court is satisfied that the finding returned by the tribunal are based on proper appreciation of material evidence on record and does not require any interference from this Court.
In view of the above, the appeals are dismissed. The award dated 08.09.2009 passed in Claim Petition No.243 of 2007 and award dated 09.10.2009 passed in Claim Petition No.245 of 2007 are affirmed. Any amount deposited before this Court shall be remitted to the tribunal concerned to be released in favour of the claimant and the remaining amount shall also be deposited by the appellants before the tribunal concerned after adjusting the statutory deposits within a period of six weeks.
Both the appeals are dismissed. There shall be no order as to costs.
Order Date :- 31.1.2020 ank