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Judgment
These two appeals involving the same facts and questions of law are proposed to be disposed of by this common judgment and order.
The brief facts of the case is that the appellants as claimants had filed the claim case before the Motor Claim Tribunal, Shillong being MACT Case No. 15 of 2015 and MACT Case No. 16 of 2015 claiming compensation for grievous injuries sustained in a motor vehicle accident which took place on 9.2.2015 at 12th Mile National Highway 40. The appellants were travelling in a Hyundai Eon vehicle bearing Registration Number ML-05K-8477 insured with the respondent No. 1 & 2. The pleaded case of the appellants is that while travelling from Guwahati to Shillong, on reaching the place of occurrence and in order to avoid a head-on collision with a truck coming at high speed from the opposite direction, the driver of the vehicle in which the appellants were travelling suddenly took a sharp turn to the side, and dashed against a stationary truck. The appellants received grievous injuries and the vehicle was badly damaged. The appellants thereafter filed the claim of compensation. The respondents No. 1 & 2 the insurer of the vehicle contested the claim by initially putting a challenge to the maintainability on the ground that the accident was a hit and run case and that the remedy lay before the Solatium Board and not before the MACT Tribunal. The learned Tribunal rejected the claim petition on the ground that there was no negligence on the part of the driver and the claim was held to be not maintainable under Section 166 of the Motor Vehicles Act, 1988. Being aggrieved by the rejection of the claim the appellants are before this Court by way of these instant appeals.
I have heard Ms. P.D. Bujarbarua, learned senior counsel assisted by Ms B. Ghosh, learned counsel for the appellants and Mr. S. Jindal, learned counsel for the respondents.
Ms. P.B. Bujarbarua, learned senior counsel submits that on the objection raised by the respondents that the claim petition was not maintainable, the finding of the learned Tribunal is incorrect, inasmuch as, the appellants in their show cause had categorically denied that it was a case of hit and run. She submits that it is not a fact that the vehicle in which the claimants/appellants were travelling was hit by an unknown vehicle but that the accident occurred between the vehicle in which the claimants were travelling and the stationary truck which shows that there was a clear element of negligence on the part of both the vehicles. She submits that the preliminary objection of the respondent Insurance Company was solely on the ground that it was a hit and run case whereas the Tribunal dismissed the case on another ground that there was no negligence, which was not even pleaded and without giving an opportunity of hearing to the claimants on this ground.
Learned senior counsel submits that it is a settled position of law that a victim in an accident, while using a motor vehicle is entitled to receive compensation, and that the allegations and proof of negligence on the part of the driver or owner of the motor vehicle, is not a condition precedent for entertaining any claim for compensation for any death or injury caused due to the accident by the Tribunal. To substantiate this point, the learned counsel has placed reliance on the case of Manjula Devi Mishra vs. Commercial Motors reported in 2008 ACJ 1624. She submits that the case of the appellants fall squarely under category 3 and 4 as mentioned in the said judgment, which has laid down that "a composite claim would be triable by the Claims Tribunal on the principle that apart from the fact that the accident was caused by the negligent use of the motor vehicle, the outside agency (other than the motor vehicle) had also contributed to the accident in such cases inter se liability can be adjudicated by the Tribunal fixing just compensation and making it payable by the joint tortfeasors, jointly or severally". She further submits that even in the fourth category of cases as mentioned in the judgment, it was held that on account of composite negligence of the driver of the vehicle or any other vehicle or outside agency, claim compensation would be maintainable by the Claims Tribunal.
Learned counsel then submits that in the instant case, the Tribunal failed to give an opportunity to the claimants to prove negligence and that the claim was dismissed at the initial stage itself without any written statement, without any evidence and was done in an extraordinary haste on the basis of pleadings. Learned counsel submits that the Tribunal failed to peruse the police report enclosed with the claim petition wherein it has been clearly stated that the insured vehicle went and dashed against the stationary truck. Learned counsel asserts that the respondent Insurance Company to avoid their liability were sticking to their stand that there was no negligence on the part of the driver insured, and that the Tribunal also acted illegally in prejudging the whole issue of negligence without any trial or evidence. She submits that the impugned order would reflect that the Tribunal did not take into consideration documents which were on record while passing the impugned order.
Learned senior counsel then submits that the plea made by the respondents that there was no extra premium paid for personal accident cover for five persons and that they would not be covered under the Insurance Policy was never raised by the respondents in their preliminary objections and as such there are estopped from making this plea before this Court in appeal. She then contends that it is a settled position of law that occupants of a private car and pillion rider on a two wheeler under a comprehensive policy are covered irrespective of the terms and conditions contained in the policy. She then submits that the payment of PA coverage for five persons would entitle the injured to directly claim compensation from the Insurance Company without approaching the Tribunal and non-payment does not ipso facto, disentitle them to get compensation for any death or injury under the comprehensive package policy. Learned counsel on this point has placed reliance on the judgment of National Insurance Company Ltd. Vs. Balakrishnan & Anr. reported in (2013) 1 SCC 31 and the case of Tilak Singh vs. Bijulwan reported in (1999) ACJ 661. She further submits that as held in the case of Mata Ram vs. National Insurance Company reported in AIR 2017 SC 1734, the terms of an Insurance Policy are not to be construed so strictly and are to be read down to advance the main purpose of the contract.
To counter the points raised by the respondents that the accident was a hit and run case and that remedy would lie from the Solatium fund, the learned senior counsel submits that a mere perusal of the pleadings in the claim petition would show that, it is not the case of the claimants that an unknown truck had come from the opposite direction dashed against the insured vehicle and had fled away. She submits that it is a clear case of the claimants that while trying to save themselves from being hit by the truck coming from the opposite direction, the driver took a sudden turn and collided with a stationary truck which was wrongly parked. She submits that the accident that took place, was between the stationary truck and the insured car, and though a truck coming from the opposite direction may have been a reason for causing the accident, it was obvious negligence on the part of the driver of the insured car which was the cause of the accident, as he could have avoided hitting the stationary truck. She submits that in the claim petition the number of the stationary truck had been given, and as such the accident cannot be said to be a case of hit and run. Learned counsel relies on a decision in the case of Harish Chandra M. Avashia vs. Manager, District Collector and Claims Settlement Commissioner and Anr. reported in 1986 ACJ 162 (Guj) wherein she states it has been held that if the offending vehicle is identified and Registration Number given in the claim petition, compensation from the Solatium fund was not permissible.
Learned counsel then submits that the Motor Vehicles Act being a social welfare legislation, strict adherence and compliance of the provisions and procedure of law and legal requirements are not called for. She submits that the claimants may not be able to adhere to strict proof of an accident by a particular vehicle in a particular manner, but they are merely to establish their case on the touch stone of preponderance of probability. She submits that the standard of proof beyond reasonable doubt cannot be applied and submits that in the instant case, the Tribunal did not even extend an opportunity to the claimants to prove negligence, and at the very initial stage itself dismissed the claim by concluding that no negligence is alleged. She further submits that the Tribunal failed to appreciate the fact that if for any reason, negligence cannot be proved, the claimants should have been given the concession to convert the claim from one under Section 166 to one under Section 163-A of the Motor Vehicles Act wherein negligence is not required to be proved. Learned counsel then also adds that since an appeal is a continuation of a suit, for the ends of justice and to avoid any further delay, this Court being the appellate Court could in alternative allow the claim petitions to be amended to be one under Section 163-A of the Motor Vehicles Act, 1988. Learned counsel in this regard has cited a judgment of the High Court of Delhi dated 2.7.2012 passed in FAO No. 458/2003 (Hemlata & Ors. vs. Vipin Kumar & Ors.) wherein an amendment sought to convert the appeal from Section 166 to one under 163-A, was allowed by the Court in the interest of justice.
Learned senior counsel while concluding her submissions, has summarized her arguments by submitting that (i) The impugned order is bad having been passed without affording an opportunity of hearing on negligence to the appellants/ claimants, more so when the preliminary objections was on the point of the claim not being maintainable being a hit and run case (ii) That the accident actually occurred due to contributory negligence on the part of the insured driver and driver of the stationary truck and the Insurance Company is liable to indemnify the insured by paying the claim amount (iii) The Tribunal having rejected the objections of the respondents that the instant case is a case of hit and run and holding that the Tribunal has jurisdiction, the respondents are barred and hit by estoppel in law from raising the same point again in the instant appeal (iv) In view of the subsequent circulars under IRDA dated 2.6.1986, 16.11.2009 and the judgment of National Insurance Company Limited vs. Balakrishnan & Anr. (2013) 1 SCC 31. It is a settled position of law, that the occupants in a private car are covered under a comprehensive policy, irrespective of the terms and conditions of the Insurance policy and that the India Motor Tariff will have no application and (v) The respondents are barred from taking any plea on the ground of non-payment of PA coverage for occupants in view of the Supreme Court judgment, the mandate of the circular of IRDA and also for not having raised these points before the Tribunal.
Mr. S. Jindal, learned counsel for the respondents in reply to the submissions, submits that the case of the appellants as set out in their respective claim petitions is that the driver of the car in which the claimants were travelling in order to avoid head-on collision with an unknown vehicle coming from the opposite direction in a rash negligent manner, took a sharp turn to the side and hit a stationary truck parked on the side of the road. He submits that it is a categorical assertion of the claimants that the accident took place due to the rash and negligent driving of the vehicle coming from the wrong side and due to the wrong parking of the truck. He submits that it is interesting to note that in the police report attached with the claim petition, there is no reference of the other vehicle coming from the opposite direction in a rash and negligent manner, and though the identity of the stationary truck had been stated in the police report, the said truck has not been impleaded as a party in the case, in spite of the assertion of the claimants that the accident occurred partly due to the wrong parking of the said truck.
Learned counsel submits that the appellants' main contention is that the Insurance Respondent Company had only challenged the maintainability of the claim petition on the ground of the accident was 'hit and run case' and that the Tribunal had dismissed the claim petition on a different ground i.e. negligence. Learned counsel submits that the aspect of 'hit and run' is not disconnected from the issue of negligence. In this connection learned counsel refers to the case of Oriental Insurance Company vs. Meena Variyal & Ors. reported in (2007) 5 SCC 428 which has stipulated that negligence is a sine qua non for a claim under Section 166 of the MV Act. He refers to Para 27 of the judgment which reads as follows: -
".............Therefore, the victim of an accident or his dependants have an option either to proceed under Section 166 of the Act or under Section 163-A of the Act. Once they approach the Tribunal under Section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. But if they proceed under Section 163-A of the Act, the compensation will be awarded in terms of the Schedule without calling upon the victim or his dependants to establish any negligence or default on the part of the owner of the vehicle or the driver of the vehicle."
Learned counsel submits that negligence is a vital component that has to be established in a claim proceeding but however, in a hit and run case (as defined in Section 161 (1)(b) of the MV Act) it is not possible to fasten negligence as the identity of the offending driver vehicle is unknown. He submits that negligence is no longer a requirement in a hit and run case. He asserts that the Tribunal had observed that it is the clear case of the appellants/claimants that the accident was caused due to the negligence of the other unknown vehicle involved and not due to the fault of the vehicle they were travelling in. He submits that the Tribunal by such observation, while not expressly stating so, the Tribunal had proceeded on the valid assumption that it would not be possible to prove negligence of the other unknown vehicle which had not been impleaded, and by doing so, the Tribunal had in fact held that the claims to be a hit and run case. With regard to the argument that the appellants being third party, are entitled to compensation, irrespective of negligence, the learned counsel reiterates the judgment rendered in Oriental Insurance Company vs. Meena Variyal & Ors. (supra) that negligence is a sine qua non that has to be established by the claimants. He submits that the same not having been done so, the appellants cannot claim compensation from such accident.
Learned counsel submits that a Tribunal was justified in rejecting the claim without filing of the written statement, without issues being framed and without evidence being adduced, inasmuch as, the entire allegations were directed towards to the other vehicles involved, where the Tribunal had no jurisdiction. The learned counsel then places reliance on the case of Manjula Devi Mishra vs. Commercial Motors (2008) ACJ 1624 wherein Para-8 (Page-1633).
".......We also hold that where the claim petition is directed solely against the outside agencies, i.e., other than the driver, owner or the insurer of the vehicle and the allegations is, as was the case before the Full Bench of Punjab and Haryana High Court, 1986 ACJ 344 (P&H), that the accident was caused entirely by the negligence of that outside agency, the Tribunal shall have no jurisdiction even to entertain the petition at the very threshold. The first and the second questions are answered accordingly."
Learned counsel submits that the contention of the appellants that they have not been heard at length by the Tribunal on the issue of negligence and that they did not get an opportunity to prove negligence at the trial is incorrect, inasmuch as, the pleaded case of the appellants is that the fault of the accident lay to the other vehicle involved. Learned counsel submits that there is no quarrel with the fact that in respect of negligence in the claim under the Motor Vehicles Act, the same can be proved only on the touchstone of preponderance of probabilities, but asserts that the appellants not having taken this stand in the claim petition nor in the hearing of attributing negligence to the respondent No. 3, they are estopped at this stage from raising the same. He further submits that though the Motor Vehicles Act is a social welfare legislation, it cannot be that it amounts to an open license for compensation to be awarded even in cases where the claims are not maintainable.
Learned counsel in support of his arguments with regard to the meaning of 'hit and run' has relied upon the cases of Ministry of Defense vs. Janak Raj, (2011) ACJ 145 which he submits that at Para 7 is has held as follows, "if the identity of the vehicle which caused the accident cannot be asserting in spite of reasonable efforts for the purpose, the accident can be said to be a Hit and Run Motor Accident". He also placed reliance on the case of Vimalaban Bhupatsinh Barot vs. District Collector, 1991 (1) TAC 287 which at Para-4 has held that :
"The definition of Hit and Run cases referred to herein above would take within its sweep even accident which may have arisen out of used of Motor Vehicle without there being collision with other vehicle. It is not necessary that there should be collision between two vehicles and only then it can be said to be 'Hit and Run' Motor Accident. The definition of 'Hit and Run cases' is self evident". Learned counsel also refers to the judgment of Saroja vs. General Insurance Corporations reported in (2004) ACJ 645 with regard to the concept and operation of the Solatium Scheme, 1989 which caters to Hit and Run cases.
With regard to the jurisdiction the learned counsel refers back to case of Manjula Devi Mishra vs. Commercial Motors (supra) and submits that the current case falls under category 2 of the said judgment as the accident was caused not on account of rash driving of the driver of the motor vehicle but solely caused on account of rashness or negligence of an outside agency. According to the counsel for the respondents, the policy is not a comprehensive policy and the IRDA circular dated 16.11.2009 will have no application, nor the judgment cited by the appellants i.e. National Insurance Company Ltd., vs. Bala Krishan (supra), inasmuch as, Section II (1) provides that subject to the limit of liabilities as laid down in the schedule, the Company will indemnify the insured in the event of an accident caused by or arising out of the use of insured vehicle. Learned counsel submits that in this context the indemnity holder (insured) faces some loss/liability on account of action attributed to him, the indemnity provider (Insurance Company) makes good the loss or in other words the Insurance Company provides indemnity but only when the loss/liability has occurred on account of acts of commission or omission of the insured and when the loss/liability belongs to the insured. He submits that in the situation where the loss has been occasioned by some persons other than the insured, the Insurance Company will obviously not be required to make good the loss, as a claim will have to be raised against that other person who had caused the loss. He further contends that if it was taken that the IRDA circulars seek to provide compensation to occupants of the vehicle under any and all circumstances, only because the policy in question is a comprehensive policy, it will lead to an anomalous situation wherein even where the accident has evidently been caused by some other vehicular persons, the Insurance Company will be liable to pay compensation only because the policy was a comprehensive policy. He submits that the circular dated 16.11.2009 followed by circular dated 3.12.2009 were required to be issued by IRDA for the reason that prior to said circular, the Insurance Companies used to try to avoid liability in respect of occupant of vehicles, even in cases where the fault of the accident lay with the driver of the insured vehicle by contending that the occupants were not third party and therefore cannot agitate claim before the Motor Accident Claims Tribunal. He also submits that the circular does not state anything for compensation and should not be construed as such, as to negate the law on negligence as enunciated in the case of Oriental Insurance Company vs. Meena Variyal (supra).
With regard to the issue of comprehensive policy learned counsel submits that the requirement to indemnify the owner/insured against claims of occupants cannot be said to exist in all circumstances where there is a comprehensive policy. Learned counsel refers to judgment rendered in United India Insurance Co. Ltd., vs. Rukiya (2007) 1 ACJ 698 where a division bench of the Kerala High Court has held that a comprehensive policy will not cover all types of risks that is possible and only statutory liability and liability for risk for which additional premium is paid are covered. He also relies in the judgment of New India Assurance Company vs. Sadanan Mukhi (2009) 2 SCC 17 where at para 11 it has been held as follows: -
"11. Provisions relating to grant of compensation occurring in Chapters XI and XII of the Act have been enacted by Parliament in order to achieve the purpose and object stated therein. Section 146 of the Act lays down the requirements for insurance against third-party risk. Where a third-party risk is involved, an insurance policy is required to be mandatorily taken out. The requirements of policies and the limits of liability, however, have been stated in Section 147 of the Act. Section 147(1)(b) of the Act, reads as under:
"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-
* * *
(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 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;
(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-
(i) 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 (8 of 1923), 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."
The provisions of the Act, therefore, provide for two types of insurance- one statutory in nature and the other contractual in nature. Whereas the insurance company is bound to compensate the owner or the driver of the motor vehicle in case any person dies or suffers injury as a result of an accident; in case involving owner of the vehicle or others are proposed to be covered, an additional premium is required to be paid for covering their life and property.
On the issue of the Indian Motor Tariff (IMT) formulated by the Tariff Advisory Committee under the Insurance Act of 1938, learned counsel submits that a perusal of the General Regulations (GR) as applicable, GR 36 (B)(2) which provides for 'Personal Accident' cover to unnamed passenger other than the insured, the paid driver and cleaner is applicable however with the stipulation that endorsement IMT-16 is to be used in such cases. He submits that GR 36 (B) (2) read with endorsement IMT-16 only provides
'Personal Accident Coverage' to unnamed passengers/occupants subject to additional premium being paid for the same, which additional premium has evidently not been paid in the present case.
In closing his arguments, learned counsel submits that the accident satisfies the definition of Hit and Run, the same being a Hit and Run case the Tribunal does not have jurisdiction to entertain cases of this nature, the IRDA circular is of no assistance as accident was caused on account of some other vehicle and that a comprehensive policy does not cover all types of risks. He therefore submits that the appeals being without merit are liable to be rejected.
Having heard learned counsels for the parties who have argued at length with regard to the entire gamut of the matter supported by respective rulings, this Court after considering all the submissions and materials as placed in these appeals, for the sake of brevity will not dwell on each and every point or decision as advanced but will address the matter on the points in issue that have arisen.
Shorn of other attendant facts and circumstances, the main point in issue stems from the maintainability of the claim petition which has been filed under Section 166 of the Motor Vehicle Act, 1988 before the Tribunal. In this regard, it would be expedient to refer to the judgment in the case of Manjuli Devi Mishra vs. Commercial Motors reported in 2008 ACJ 1624 at Para-8 which has categorized four types of cases that can give rise to claim of compensation, the same is reproduced herein below along with the findings of each category
"I. Claims for compensation in cases where it is alleged that motor vehicle driver was solely responsible for causing accidental injuries giving rise to the claims for compensation.
II. Claims for compensation in cases of accidents where it is alleged that accident is caused not on account of rash or negligent driving of driver of the motor vehicle but is solely caused on account of rashness or negligence of any outside agency who might have rashly or negligently used any vehicle other than the motor vehicle causing the accidental injuries or who might have been solely responsible for the accident even otherwise.
III. Claims for compensation in case where it is alleged that the accident giving rise to the claim is being the result of composite negligence not only of the driver of the motor vehicle but also of outside agency or driver of another vehicle which may not be motor vehicle but who might be found negligent contributing to the causing of the accident, meaning thereby, claims for compensation against joint tortfeasors, one of which at least is the driver of a motor vehicle.
IV. Cases where it is alleged that accidental injuries have been caused on account of composite negligence of driver of the motor vehicle as well as any other person who might be jointly responsible for causing the accident. But when ultimately, on evidence, it is found by the Tribunal that driver of the motor vehicle was not at all responsible, not even to the slightest extent and that sole responsibility for causing of the accident rested on the shoulders of the driver of the vehicle which is not a motor vehicle or on the shoulders of any other agency.
The Bench held that so far as the first type of cases is concerned it is the Claims Tribunal which alone can entertain the claim under Section 110(1) of the Act and adjudicate upon it and if it was found that the motor vehicle driver was negligent, appropriate compensation can be awarded against the driver, owner and insurer of the vehicle as the case may be.
In regard to the second type of cases, the Bench held that the Tribunal shall have no jurisdiction to entertain the same because the claim does not allege that the accident was caused by the negligence in the use of motor vehicle.
So far as the third type of cases is concerned the learned Judges ruled that such a composite claim would be triable by the accident Tribunal on the principle that apart from the fact that the accident was caused by the negligent use of the motor vehicle, the outside agency (other than the motor vehicle) had also contributed to the accident in such cases inter se liability can be adjudicated by the Tribunal fixing just compensation and making it payable by the joint tortfeasors, jointly or severally. Their Lordships held that thereby future litigation as regards the extent of the liability of joint-feasors can be avoided.
In respect of the last category of cases, the Bench held that where the accident is alleged to have been caused on account of composite negligence of the driver of the vehicle or any other vehicle or outside agency, claim for compensation would be maintainable by the Claims Tribunal but if after hearing the parties the Tribunal comes to the conclusion that the accident was caused not on account of the rash and negligent use of the motor vehicle but solely on account of negligence or rashness of some outside agency like railway engine, carts, etc. the case would go out of the purview of Section 110(1) and the Tribunal may thereupon reject the claim petition on the ground of lack of jurisdiction to award compensation.
Having given the matter our careful consideration we agree with the conclusion reached by the Gujarat High Court as to the circumstances in which the Claims Tribunal shall have jurisdiction to entertain petitions filed under Section 110 as well as the cases in which it shall have no jurisdiction to entertain the petition at the very threshold or subsequently on a finding that the accident was not caused by the use of the motor vehicle but solely by some outside agency.
The upshot of the above discussion, therefore, is that the Claims Tribunal shall have jurisdiction to entertain all claims for compensation in respect of accidents involving the death of, or bodily injuries to persons where the accident is caused by the use of the motor vehicle or the use of the motor vehicle contributes, whether by itself or along with some other joint tort-feasors, to the accident. As a corollary, this Court holds that the mere fact that the motor vehicle was involved in the accident by itself, and without more would not confer on the Tribunal jurisdiction to entertain a claim. We further hold that where the claim for compensation alleges that the accident was caused by the negligence of the driver of the motor vehicle as well as by some outside agency, then too the Tribunal shall have jurisdiction to entertain the petition provided that if the Tribunal ultimately finds that the accident was caused wholly by the outside agency and not by the driver of the motor vehicle it will cease to have any jurisdiction to grant any relief to the claimant. We also hold that where the claim petition is directed solely against outside agencies, i.e. other than the driver, owner or the insurer of the vehicle and the allegation is, as was the case before the Full Bench of the Punjab and Haryana High Court (AIR 1986 Punj and Har 239) (supra), that the accident was caused entirely by the negligence of that outside agency, the Tribunal shall have no jurisdiction even to entertain the petition at the very threshold. The first and the second questions are answered accordingly.
The Case of the appellants is that they come within the category 3 and 4 which in essence means that the claim will be maintainable on account of the circumstances of composite negligence which will have to be tested by evidence in effect, by application of the findings of paragraphs 12 and 13 of the quoted judgment above. The respondents also place reliance on the same judgment to establish that the accident comes under category 2 and also on the findings as recorded in the last part of the above quoted judgment at paragraph 15, wherein it has been held that if the accident was caused by an outside agency, the Tribunal will have no jurisdiction. In this context, it is noted that the claim petition on examination reflects in para 23 as follows:-
23 Any other information that may be necessary or helpful in the disposal of the claim That the claimant was travelling in the vehicle while they were coming from Gauhati towards Shillong and due to another vehicle coming at a very high speed from opposite direction in a rash and negligent manner and while suddenly giving side to the said vehicle it hit against the station truck which was parked wrongly almost covering half of the road thereby causing severe damage to the vehicle and also causing sever injury to the claimant
The claimant and other occupants were immediately after the accident shifted to Down Town Hospital, for treatment
The accident took place due to the rash and negligent driving of the vehicle coming from wrong side and due to the wrong parking of the station truck.
Due to the grievous injury sustained by the claimant in the accident she couldn't attempt to her daily work and even now she is not totally fit to attend to her normal work.
A bare perusal of the paragraph 23 of the claim petition shows that a categorical averment has been made wherein the accident has been attributed due to rash and negligent driving of the vehicle coming from the wrong side and due to the wrong parking of a stationary truck. No mention is made as to the fact as to whether there was composite negligence or that the insured driver in any manner contributed to the cause of the accident.
On another aspect as raised by the appellants, that the tribunal had dismissed the claim on the ground of negligence and not on the ground as put up by the respondent Insurance Co. of 'Hit and Run', the judgement as rendered in the case of Oriental Insurance Co. vs Meena Variyal & Ors. (supra) will be of use to determine this issue. This observation is made in view of the fact that, as held in this case at Paragraph 27, negligence is essential to be proven in a claim under Section 166 of the MV Act, the same is however not required for a claim under Section 163-A of the Act. The claim petition as quoted not having taken this stand, inasmuch as, the entire allegations, are against the other vehicles and no negligence being attributed to the insured driver, it cannot be taken that the Tribunal had erred in rejecting the claim, on the observation of the Tribunal that the accident was caused due to the negligence of the other unknown vehicle, inasmuch as this is the pleading of the appellants in the claim petition.
The other issue that under a comprehensive policy the occupants of a car are covered, irrespective of the terms and conditions of the Insurance Policy, in view of the IRDA (Insurance Regulatory and Development Authority) Circulars dated 2.6.1986, 16.11.2009 and the judgment of National Insurance Co. Vs Balakrishnan and Anr. (supra), it is noticed that no doubt that the judgment took care to cover third party risk of an occupant in a car and held that if the policy was comprehensive, the liability would be covered under the IRDA circulars and the Insurance Co. would have to make good the loss. However, on this issue, I am inclined to agree with the contention of the respondents that the Circulars will not be applicable as the insurance company can make good a loss or provide indemnity only when the loss/liability has occurred on account of acts and commission of the insured which is not the situation in the instant case. As also on the purport and purpose of the circulars the same will not be applicable, inasmuch as, Circular dated 3.12.2009 was issued by the IRDA, for the reason that prior to this Circular, the Insurance Cos. used to try to avoid liability in respect of occupants of vehicles, even when the fault lay with the driver of the insured vehicle by contending that the occupants were not third party. It is apposite herein to refer to the judgment in the case of New India Assurance Company vs. Sadanan Mukhi (supra) which has been relied upon by the counsel of the respondents with regard to third party risks, and Section 147 of the MV Act discussed on the requirement of policies and limits of liabilities. The Hon'ble Supreme Court had held that in cases involving owner of the vehicle or others are proposed to be covered, an additional premium is required to be paid for covering the life and property.
On a final assessment of the facts and circumstances of the case, without going further into any other issue such as the applicability of the Indian Motor Tariff, the inescapable conclusion which can be drawn is that the claim petition under Section 166 is not maintainable. On the question of the alternate prayer of the appellant that the appeal be converted into one under Sec. 163-A, the same is not considered as the subsequent petition under Section 163 A of the Act will not be barred under Order II Rule 2 CPC and also that the finding in the earlier petition will not operate as res judicata against the appellants.
For the foregoing reasons, the appeals are dismissed, order dated 16.02.2018 upheld and the appellants are at liberty to avail other remedy as provided in law.