Madhya Pradesh High Court
Manager United India Insurance Company ... vs Jitendra Kushwaha on 5 September, 2023
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 5 th OF SEPTEMBER, 2023
MISCELLANEOUS APPEAL No. 1522 of 2023
BETWEEN:-
MANAGER UNITED INDIA INSURANCE COMPANY
LIMITED THROUGH ASSISTANT MANAGER BRANCH
OFFICE NAUGAAV ROAD, CHHATARPUR DISTRICT-
CHHATARPUR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI DINESH KOSHAL - ADVOCATE)
AND
1. JITENDRA KUSHWAHA S/O BIHARI LAL
KUSHWAHA, AGED ABOUT 23 YEARS, VILLAGE
BILEHRI, POST NAUGAAV ROAD POLICE STATION
AND TEHSIL NAUGAAV DISTRICT CHHATARPUR
(M.P.) (MADHYA PRADESH)
2. MESSRS BAJRANG DAAL MILL U/C KRIPARAM
SHIVHARE K/OF RAHULDEVSHIVHARE (DEAD)
SUNIL SHIVHARE S/O LATE KRIPARAM, AGED
ABOUT 52 YEARS, 507/1 ADARSH NAGAR JHANSI
THANA SEEPRI BAZAAR DISTRICT JHANSI U.P.
PRESENT ADDRESS GARROLI ROAD NAUGANV
THANA NAUGANV DISTRICT CHHATARPUR
(MADHYA PRADESH) (OWNER OF BOLERO
VEHICLE NO.UP93-S-1009)(DEAD) THROUGH
LEGAL HEIRS
2A. SUNIL SHIVHARE S/O LATE KRIPARAM, AGED
ABOUT 52 YEARS.
2B. KALLU SHIVHARE S/O LATE KRIPARAM, AGED
ABOUT 49 YEARS.
2C. MANOJ SHIVHARE S/O LATE KRIPARAM, AGED
ABOUT 45 YEARS.
RESPONDENTS NO.2A TO 2C R/O 507/1 ADARSH
NAGAR JHANSI THANA SEEPRI BAZAAR
DISTRICT JHANSI (U.P.) PRESENT ADDRESS
Signature Not Verified
Signed by: PUSHPENDRA
PATEL
Signing time: 08-09-2023
18:47:52
2
GARROLI ROAD NAUGANV THANA NAUGANV
DISTRICT CHHATARPUR (MADHYA PRADESH)
3. RAVINDRA KUMAR S/O RAMANAND R/O WARD
NO. 02 VIRENDRA COLONY NAUGANV THANA
NAUGANV DISTRICT CHHATARPUR (OWNER OF
BOLERO VEHICLE NO. UP 93 S 1009) (MADHYA
PRADESH)
4. SMT. MALTI KUSHWAHA W/O LATE SANTOSH
KUSHWAHA, AGED ABOUT 38 YEARS, R/O WARD
NO. 13 BAJARIYA MOHALLA RAJNAGAR THANA
RAJNAGAR TEHSIL RAJNAGAR DISTRICT
CHHATARPUR (MADHYA PRADESH)
5. SURESH KUSHWAHA S/O LATE SANTOSH
KUSHWAHA, AGED ABOUT 20 YEARS, R/O WARD
NO. 13 BAJARIYA MOHALLA RAJNAGAR THANA
RAJNAGAR TEHSIL RAJNAGAR DISTRICT
CHHATARPUR (MADHYA PRADESH)
6. KU. KAVITA D/O LATE SANTOSH KUSHWAHA,
AGED ABOUT 16 YEARS, OCCUPATION: MINOR
STUDENT CLASS 10TH THROUGH GUARDIAN
MOTHER SMT. MALTI KUSHWAHA W/O LATE
SANTOSH KUSHWAHA R/O WARD NO. 13
BAJARIYA MOHALLA RAJNAGAR THANA
RAJNAGAR TEHSIL RAJNAGAR DISTRICT
CHHATARPUR (MADHYA PRADESH)
7. UMESH KUSHWAHA S/O LATE SANTOSH
KUSHWAHA, AGED ABOUT 14 YEARS,
OCCUPATION: MINOR STUDENT CLASS 6TH
THROUGH GUARDIAN MOTHER SMT. MALTI
KUSHWAHA W/O LATE SANTOSH KUSHWAHA R/O
WARD NO. 13 BAJARIYA MOHALLA RAJNAGAR
THANA RAJNAGAR TEHSIL RAJNAGAR DISTRICT
CHHATARPUR (MADHYA PRADESH)
8. SMT. GANSHI KUSHWAHA W/O LATE ACCHELAL
KUSHWAHA, AGED ABOUT 65 YEARS, R/O WARD
NO. 13 BAJARIYA MOHALLA RAJNAGAR THANA
RAJNAGAR TEHSIL RAJNAGAR DISTRICT
CHHATARPUR (MADHYA PRADESH)
9. SMT. NONI BAI W/O LATE HARI KUSHWAHA,
AGED ABOUT 43 YEARS, R/O WARD NO. 10
KHANJAPURVA RAJNAGAR THANA RAJNAGAR
TEHSIL RAJNAGAR DISTRICT CHHATARPUR
(MADHYA PRADESH)
Signature Not Verified
Signed by: PUSHPENDRA
PATEL
Signing time: 08-09-2023
18:47:52
3
10. NAHESH KUSHWAHA S/O LATE HARI KUSHWAHA,
AGED ABOUT 18 YEARS, OCCUPATION: STUDENT
CLASS 12TH R/O WARD NO. 10 KHANJAPURVA
RAJNAGAR THANA RAJNAGAR TEHSIL
RAJNAGAR DISTRICT CHHATARPUR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI ANOOP KUMAR SAXENA - ADVOCATE FOR THE RESPONDENTS
NO.2; SHRI PRAMOD KUMAR CHAURASIA - ADVOCATE FOR THE
RESPONDENT NO.3 AND SHRI SUKHNANDAN PANDEY - ADVOCATE FOR
THE RESPONDENTS NO.4 TO 10)
MISCELLANEOUS APPEAL No. 1520 of 2023
BETWEEN:-
BRANCH MANAGER UNITED INDIA INSURANCE CO.
LTD. THROUGH ASSISTANT MANAGER BRANCH
OFFICE JHANSI ROAD CHHATARPUR (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI DINESH KOSHAL - ADVOCATE)
AND
1. SMT. BHAGWATI SEN W/O LATE MUNNA, AGED
ABOUT 46 YEARS, R/O VILLAGE KATRA POST
BANGAEN TEHSIL CHHATARPUR (MADHYA
PRADESH)
2. NARAYAN SEN S/O LATE MUNNALAL SEN, AGED
ABOUT 21 YEARS, R/O VILLAGE KATRA POST
BANGAEN TEHSIL CHHATARPUR DISTRICT
(MADHYA PRADESH)
3. RAMU SEN S/O LATE MUNNA SEN, AGED ABOUT
22 YEARS, R/O VILLAGE KATRA POST BANGAEN
TEHSIL CHHATARPUR DISTRICT (MADHYA
PRADESH)
4. RAJENDRA PRASAD S/O LATE MUNNALAL SEN,
AGED ABOUT 25 YEARS, R/O VILLAGE KATRA
POST BANGAEN TEHSIL CHHATARPUR DISTRICT
(MADHYA PRADESH)
5. JITENDRA KUSHWAHA S/O BIHARILAL
KUSHWAHA, AGED ABOUT 23 YEARS, R/O
VILLAGE BILEHRI POST NAUGANV DISTRICT
Signature Not Verified
Signed by: PUSHPENDRA
PATEL
Signing time: 08-09-2023
18:47:52
4
CHHATARPUR (MADHYA PRADESH)
6. RAVINDRA KUMAR S/O RAMANAND R/O WARD
NO. 02 VIRENDRA COLONY NAUGANV THANA
NAUGANV DISTRICT CHHATARPUR (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI PRAMOD KUMAR CHAURASIA - ADVOCATE FOR THE
RESPONDENT NO.6)
These appeals coming on for admission this day, the court passed the
following:
ORDER
These miscellaneous appeals under Section 173(1) of the Motor Vehicles Act, 1988 are filed by the insurance company being aggrieved of the award dated 29.11.2022 passed by the learned Second Motor Accident Claims Tribunal, Chhatarpur (M.P.) in MACC No.71/2020 ( Smt.Malti Kushwaha and others Vs. Jitendra Kushwaha and others) and MACC No.72/2020 (Smt. Noni Bai and others Vs. Jitendra Kushwaha and others) and award dated 13.02.2023 passed by the learned Sixth Motor Accident Claims Tribunal, Chhatarpur (M.P.) in MACC No.65/2021 (Smt. Bhagwati Sen and others Vs. Jitendra Kushwaha and others) respectively, on a singular ground that the offending vehicle bearing registration No.UP93-S-1009 was insured under the limited liability policy and, therefore, insurance company having undertaken to indemnify the occupants of the vehicle to the extent of Rs.80,000/- each occupant, learned Tribunals erred in fastening the liability to satisfy the award on the insurance company in toto which reflects poor understanding and appreciation of law in the hands of the Tribunals.
2. Shri Anoop Kumar Saxena, learned counsel for the respondent No.2 submits that vehicle was owned by respondent No.4 and not by respondent Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 08-09-2023 18:47:52 5 No.2.
3. That is another grey area that after framing issues, learned Tribunals failed to decide as to who will be responsible for satisfying the award and without recording any finding to demonstrate that who was the registered owner of the offending vehicle on the date of the accident i.e. 22.01.2020 has held that vehicle owned by respondent No.2 or in the alternative by the respondent No.4, met with an accident. It is submitted that this kind of finding is cryptic and Tribunal has really failed to apply itself to the fact situation.
4. Reliance is placed on the judgment of the Hon'ble Supreme Court in case of National Insurance Company Ltd. Vs. Balakrishnan and another, (2013) 1 SCC 731 = 2013 (1) T.A.C 1 (S.C.), wherein it is held that there is a distinction between the ''Act policy'' and ''comprehensive/package policy''. What would be the liability of insurer if policy is a ''comprehensive/package policy'' would depend upon the view of the Tariff Advisory Committee pertaining to enforcement of its decision to cover the liability of an occupant in a vehicle in a ''comprehensive/package policy'' regard being had to the contract of insurance. However, if the policy is ''Act policy'' then it stands on a different footing from a ''comprehensive/package policy''. It remitted the matter back to the Tribunal to record its finding.
5. This Court had an occasion to consider similar issue in case of HDFC Ergo General Insurance Company Vs. Smt. Dumri Bai and others (M.A. No.5672/2019 decided on 11.07.2022) wherein placing reliance on the judgment of Hon'ble Supreme Court in case of Balakrishnan (supra) it is held that in an ''Act policy'' coverage will be subject to the liability undertaken by the insurance company for the occupant of the car and if third party risk of an occupant of a private car is not covered then no claim will be admissible. In the Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 08-09-2023 18:47:52 6 present case, it is admitted fact that as per Ex.NA-4, it was a private car liability only policy. It is not a comprehensive or package policy. It is mentioned that the sum insured shall be Rs.80,000/- per passenger or Rs.4,80,000/- for six passengers travelling in the car. Therefore, total liability of the insurance company will be restricted to Rs.80,000/- per person. Over and above which remaining amount is to be paid by the owner of the offending vehicle.
6. Similar issue has been dealt with by the Gwalior Bench of this High Court in case of Smt. Neha Bhadauriya and others Vs. Ehsan Khan and others (M.A. No.303/2006 decided on 24th February, 2009), wherein it is held that in an ''Act policy'', liability will be restricted to contractual liability only.
7. This aspect has not been taken into consideration by the learned Tribunals and without applying themselves to the fact situation, they have passed impugned awards. Impugned awards are therefore modified to this extent that insurance company will be liable to pay compensation only to the extent of Rs.80,000/- per claim, subject to maximum of six claims in relation to the occupants of the car and their liability will be unlimited in relation to the third party. For the remaining amount, claimants will be entitled to recover the amount from the owner driver of the offending vehicle.
8. In above terms, these miscellaneous appeals are disposed of.
(VIVEK AGARWAL) JUDGE pp Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 08-09-2023 18:47:52