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Judgment
T.G. Shivashankare Gowda, J
In this appeal, the Insurance Company has challenged the judgment and award dated 01.09.2012 in M.V.C.No.1263/2010 passed by the Principal Senior Civil Judge and M.A.C.T., Shimoga ('the Tribunal' for short).
For the sake of convenience, the rank of the parties will be referred to as per their status before the Tribunal.
Brief facts of the case are, on 10.12.2009, the petitioner boarded the bus bearing Reg.No.KA-18-3810 at Haranahalli in order to go to Nyamathi. Due to heavy rush in the bus, the driver and conductor of the bus asked him to board atop of the bus. On Haranahalli-Hirekere Road, the bus was toppled, the persons sitting in the roof-top including the petitioner fell down from the bus and sustained injuries. After taking treatment, the petitioner has approached the Tribunal for grant of compensation of Rs.65,000/-. Claim was opposed by the Insurance Company. The Tribunal after taking the evidence, allowed the claim petition, awarding compensation of Rs.65,000/- with 6% interest p.a., fastening the liability against driver, owner and the Insurance Company. Aggrieved by the same, the Insurance Company has filed this appeal on various grounds.
Heard the arguments of Smt. Padma. S, learned counsel on behalf of Sri. Ashok. N. Patil, learned counsel for the Insurance Company and Sri. Lokesh Boovanahalli, learned counsel for the petitioner.
It is the contention of the learned counsel for the Insurance Company that the petitioner is a roof-top passenger; policy issued was only liability policy, passengers of the bus were not covered under the policy, hence the owner has to pay the compensation. It is further contended that the accident is tailored, there is a delay of 15 days in filing the complaint and he sought for interference.
Per contra, learned counsel for the petitioner has contended that before the Tribunal, the Insurance Company has not taken such a defence that the petitioner is a roof-top passenger, the policy does not cover such passengers, now the Insurance Company shall not be permitted to argue the said contention and he supported the impugned judgment.
I have given my anxious consideration to the arguments advanced on both sides and also perused the materials on record.
The material on record did point out that on 10.12.2009, the accident had taken place. There is a delay of 15 days in filing the complaint. It is the contention of the Insurance Company that the complaint is tailored for the purpose of compensation. It is pertinent to note that Ex.P6/wound certificate points out that there was an accident on 11.12.2009 at 06:30 pm, but the petitioner pleads that the accident was on 10.12.2009. He has visited the Mc. Gann Hospital, Shimoga with a history of road traffic accident only on 24.12.2009. Since the owner of the vehicle has not disputed the accident nor challenged the same, the claim is only with regard to liability. Hence, it is not proper to go in detail with the validity of the accident or interfering with the compensation determined by the Tribunal.
Ex.R1/policy of insurance explains that it is only a 'liability only policy'. On perusal of the policy, it is pertinent to note that amount of the premium of Rs.10,915/- was towards basic T.P. cover, Rs.100/-was towards P.A. cover for owner-driver, Rs.15/-towards L.L.- paid driver, conductor and cleaner, Rs.25/- towards L.L. to employees and including service tax of Rs.1,140/-, total amount of premium comes to Rs.12,205/-. Policy also refers the seating capacity of the bus as '33+2'. There is no premium paid covering the risk of the passengers. When the Insurance policy did not cover the risk of the passengers, whether the Insurance Company is liable to pay the compensation or not is the question.
In this regard, this Court in Divisional Manager, United India Insurance Co. Ltd. -Vs.-Shamaraya and others M.F.A.No.31781/2010 and connected matters, decided on 22.12.2020 and other connected matters in M.F.A.No.31781/2010 by judgment dated 22.12.2020 referring to judgment of Hon’ble Apex Court in National Insurance Company Limited -Vs.- Balakrishnan (2013) 1 SCC 731 discussed about the difference between Act Policy / statutory policy / liability only policy and comprehensive / package policy in detail. It has also referred to the judgment of Hon’ble Apex Court in Oriental Insurance Company Limited -Vs. Sudhkaran.K.V 2008 ACJ 2045, Oriental Insurance Company -Vs.- Meena Variyal and others (2007) 5 SCC 428 held at paragraph No.31 of its judgment that under the Act policy / statutory policy / liability only policy, the risk of the occupants of the jeep / car / pillion rider is not covered. Hence, Insurance Company is not liable to pay the compensation.
10.1. Paragraph No.31 of the judgment reads as follows:
"31. Therefore, the ratio laid down in the Meena Variyal's case (supra) is squarely applicable to the present facts, circumstances involved in these cases. Section 147 of the M.V.Act prescribes, requirements of policy of insurance and limits of liability, while in the proviso appended therete carves cut an exception to the main provision. It prescribes compulsorily coverage of risk to third parties and to those who are stated in the said provision. Therefore, unless the purchase of insurance policy compulsorily at minimal covering the risk of third parties, the owner cannot ply the vehicles on road or on public places and also in private places. Therefore, the provisions of the M.V.Act are benevolent in nature protecting right and interest of victims arising out of accident particularly who are third parties. There is compulsion on the owner for purchasing 'Act Policy/Statutory Policy/liability only policy' but the owner is at option to purchase insurance policy covering more risk apart from third parties. Therefore, for covering risk for occupant in the car/jeep or pillion rider on the motorcycle, then the owner has to pay additional premium. Therefore, proof of additional premium is a pure question of fact. Therefore, where compulsorily purchase of insurance policy covering third parties only the insurance policy is Act Policy/Statutory Policy/liability only policy' but under this 'Act Policy/Statutory Policy/ liability only policy' the risk of occupant of the car/jeep or pillion rider is not covered as they are not be categorized as third parties. Therefore, by this judgment it is held that under the 'Act Policy/Statutory Policy/ liability only pclicy, the risk of occupant of the jeep/car or pillion rider is not covered hence the Insurance Company is not liable to pay compensation in respect of death or bodily injury occurred to the occupant of the car/jeep or pillion rider. Therefore, under these circumstances the appeal filed by the Insurance Companies in the cases of putting burden on the Insurance Companies to pay compensation, are hereby allowed as putting burden on the Insurance Companies are erroneous, thus putting burden on Insurance Companies is set-aside. Consequently, the appeal filed by the claimants and owners of the vehicle if they are calling in questior exonerating the Insurance Companies are hereby dismissed. "
Here in this case, admittedly, the petitioner was a roof-top passenger, he was made to board the roof-top of the bus at the instructions of its conductor and driver. In order to cover the risk of the owner, he is required to obtain a comprehensive insurance policy by paying premium for the carrying passengers in the bus. If the policy is a comprehensive one, then only the liability of the Insurance Company to indemnify the owner of the bus comes into picture. In this case, since the owner of the bus did not pay any premium to cover the risk of the passengers under the liability only policy, the Insurance Company cannot be asked to indemnify the owner.
On perusal of the impugned judgment, the Tribunal did not examine the liability under Ex.R1/liability policy. It has simply assumed that there is an insurance cover for the passengers of the bus and fastened the liability against the Insurance Company to indemnify the owner which is contrary to the material on record and it is erroneous and unsustainable. In the absence of policy covering the risk of the passengers, the owner of the bus is alone liable to pay the compensation. Hence, the appeal merits consideration, in the result, the following:
ORDER
i) Appeal is allowed-in-part;
ii) Impugned judgment and award is modified;
iii) The Insurance Company is exonerated from indemnifying the owner of the bus;
iv) Respondents No.1 and 2 (owner and driver) are jointly liable to pay the compensation to the petitioner, they are directed to deposit the compensation along with interest within eight weeks from the date of receipt of certified copy of this judgment;
v) The Insurance Company is entitled for refund of the amount deposited by it.