Gujarat High Court
The United India Insurance Company Ltd. vs Nileshkumar Mohanbhai Parmar on 8 October, 2018
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/FA/2104/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2104 of 2018
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THE UNITED INDIA INSURANCE COMPANY LTD.
Versus
NILESHKUMAR MOHANBHAI PARMAR
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Appearance:
MR MAULIK J SHELAT(2500) for the PETITIONER(s) No. 1
RULE SERVED(64) for the RESPONDENT(s) No. 1,2,3
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 08/10/2018
ORAL ORDER
1. Being aggrieved and dissatisfied by the judgment and award dated 14.02.2018 rendered by Motor Accident Claims Tribunal (Aux), Mahesana in MACP No.65 of 2011, the insurance company has preferred this appeal under section 173 of the Motor Vehicle Act, 1988 (hereinafter referred to as the "Act").
2. This Court admitted the matter vide order dated 29.06.2018 and record and proceedings were called for which has been received. Though served, no one appears for the respondents. Even thereafter, the matter was adjourned twice. Today also when the matter is called out twice, no one appears for the respondents.
3. Heard Mr. Maulik J. Shelat, learned advocate for the appellants and perused the record and proceedings.
Page 1 of 8 C/FA/2104/2018 ORDER4. The facts which can be culled out from the record of the appeal are as under 4.1 That the accident occurred on 19.11.2010 when the original claimant was travelling in jeep bearing registration No. GJ1S9816 towards Mansa from Mahesana. It is the case of the respondent claimant that the driver of the jeep was driving the vehicle in full speed in rash and negligent manner and when the vehicle reached the place of accident, with an attempt to save cow, the driver of the jeep suddenly turned the vehicle because of which the left leg of the claimant dashed with the cow and the respondentoriginal claimant received serious injuries.
4.2 The FIR was lodged with the jurisdictional police and the present claim petition was filed under section 166 of the Act by the respondentoriginal claimant and claimed compensation of Rs.2,50,000/. The respondentoriginal claimant also relied upon documentary evidence such as FIR at exhibit 24, complaint at exhibit 25, panchnama at exhibit 26, injury certificate at exhibit 27, discharge card of the HiTech Hospital at exhibit 28, School Leaving Certificate at exhibit 29, Driving license of driver of the jeep at exhibit 30, RC book at exhibit 31, Insurance policy of the jeep at exhibit 32, medical bills at exhibits 33 to 41 and Page 2 of 8 C/FA/2104/2018 ORDER disability certificate issued by Dr. Mahesh Kahdelwal at exhibit 42. The appellant insurance company filed its written statement at exhibit 15 and specifically contended that the policy in question exhibit 32 was liability only policy and therefore, the appellant is not liable to pay any compensation jointly and severally, more particularly as contended in para 12 of the written statement. The Tribunal after considering the evidence on record, partly allowed the claim petition and awarded a sum of Rs. 2,14,000/ as compensation with 9% interest from the date of filing of the claim petition till its realisation. Being aggrieved by the impugned judgment and award, the present appeal is filed.
5. Mr. Shelat, learned advocate appearing for the appellant relying upon the judgment of the Apex Court in the case of National Insurance Co. Ltd. vs. Balakrishnan and Anr. Reported in AIR 2013 SC 473 contended that as admittedly, the insurance policy is liability only policy, the insurance company cannot be made liable for the claim raised by the respondentoriginal claimant as he was occupant in a private vehicle. Mr. Shelat contended that even though the specific contention was raised in the written statement, the same is not considered by the Tribunal and therefore, the impugned judgment and award deserves to be quashed and set aside and the Page 3 of 8 C/FA/2104/2018 ORDER proceedings of MACP No.65 of 2011 deserves to be remanded back for adjudication on the said aspect by the Tribunal. Mr. Shelat contended that even though such specific contention which goes to the very root of the matter, the Tribunal has failed to decide the same and has wrongly held the appellant liable for the award.
6. Mr. Shelat has also further contended that no additional payment is paid. Having considered the contention raised by Mr. Shelat and on perusal of the insurance policy at exhibit 32, the same provides as under "PRIVATE CAR LIABILITY ONLY POLICY Policy No.064184/31/10/02/00000537 Vehicle No. GJ01S9816"
The Insurance Company in its written statement at exhibit 15 as contended as under "The opponent no.3 is not liable to pay any compensation jointly and severally if the vehicle is used against the terms and conditions of the policy. It is submitted that the liability of this opponent is as per terms, conditions, limitations and exceptions of the policy. It is submitted that vehicle is private vehicle and applicant has no right to travel in private vehicle and as paid aor gratituous passenger and policy is Act policy. So this opponent cannot be held liable for the compensation."
7. On perusal of the impugned judgment and award, the Tribunal has not considered the said aspect Page 4 of 8 C/FA/2104/2018 ORDER at all. There is no whisper about it in the judgment and award. At this juncture, it would be appropriate to refer to the judgment of the Apex Court in the case of National Insurance Co. Ltd. (supra), wherein the Hon'ble Apex Court has observed thus "21. "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.
22. In view of the aforesaid legal position, the question that emerges for consideration is whether in the case at hand, the policy is an "Act Policy" or Page 5 of 8 C/FA/2104/2018 ORDER "Comprehensive/Package Policy". There has been no discussion neither by the tribunal or the High Court in this regard. True it is, before us, Annexure P1 has been filed which a policy is issued by the insurer. It only mentions the policy to be a "comprehensive policy" but we are inclined to think that there has to be a scanning of the terms of the entire policy to arrive at the conclusion whether it is really a "package policy" to cover the liability of an occupant in a car.
23. In view of the aforesaid analysis, we think it apposite to set aside the finding of the High Court and the tribunal as regards the liability of the insurer and remit the matter to the tribunal to scrutinize the policy in a proper perspective and, if necessary, by taking additional evidence and if the conclusion is arrived at that the policy in question is a "Comprehensive/Package Policy", the liability would be fastened on the insurer. As far as other findings recorded by the tribunal and affirmed by the High Court are concerned, they remain undisturbed.
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.
8. Even in the case on hand, as observed herein above, though specific contention has been raised and it is prima facie evident from the insurance policy at exhibit 32 that it is liability only policy, the learned Tribunal has not considered the said aspect and therefore, the impugned judgment and award deserves to be Page 6 of 8 C/FA/2104/2018 ORDER quashed and the proceedings of MACP No.65 of 2011 be restored back to the file of Motor Accident Claims Tribunal (Aux), Mahesana, which the Tribunal shall decide the aforesaid issue as provided in the judgment of the Apex Court in the case of National Insurance Co. Ltd. (supra) and shall decide the issue of type of policy in accordance with law after giving opportunity of hearing to both the sides as provided in this judgment and order and even permitting both the sides to adduce additional evidence as provided by the Apex Court in the case of Balkrishnan (supra).
9. As the appeal is filed by the insurance company only, the findings arrived at in this judgment shall apply only to the appellant. This judgment would apply only on the aspect of the policy concerned and the liability of the appellant as an insurer only. Rest of the findings are not disturbed. The learned Tribunal shall therefore only decide the issue of liability of the appellant in light of the insurance policy at exhibit 32 as expeditiously as possible. Rest of the judgment and award remains unaltered.
10. By an order dated 06.09.2018 passed in Civil Application No.1 of 2018, this Court had directed the Tribunal to invest the amount deposited by the appellant in a cumulative fixed deposit receipt in a nationalised bank initially Page 7 of 8 C/FA/2104/2018 ORDER for a period of three years and renewable from time to time for similar period till final disposal of the appeal shall remain as it is till final disposal of claim petition by Tribunal.
11. Thus, the appeal is allowed to the aforesaid extent. Record and proceedings be transmitted to the Tribunal forthwith.
(R.M.CHHAYA, J) BIJOY B. PILLAI Page 8 of 8