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Judgment
Sunil Kumar Sinha, J.—These appeals have been filed by the Insurance Company, u/s 173 of the Motor Vehicles Act, 1988, against the award(s) passed by the Ninth Additional Motor Accident Claims Tribunal (F.T.C.), Durg in nine different Claim Cases arising out of a common accident, whereby, the Insurance Company has been held liable for payment of compensation to the claimant(s) in the following manner:
Sl. No. Misc. Appeal (C) number Claim Case number Award dated Awarded amount Rs.
M.A.(C) No. 537/08 148/2005 22.12.2007 1,24,500/-
M.A.(C) No. 550/08 150/2005 22.12.2007 1,84,500/-
M.A.(C) No. 576/08 149/2005 27.08.2007 1,89,500/-
M.A.(C) No. 587/08 147/2005 22.12.2007 74,500/-
M.A.(C) No. 593/08 143/2005 27.08.2007 1,72,000/-
M.A.(C) No. 698/08 144/2005 22.12.2007 9,69,428/-
M.A.(C) No. 805/08 146/2005 22.12.2007 4,42,500/-
M.A.(C) No. 1562/08 145/2005 27.08.2007 1,94,500/-
M.A.(C) No. 427/09 151/2005 27.08.2007 4,99,420/-
The facts, briefly stated, are as under:
The claimant(s) filed Claim Petition(s) u/s 166 of the Motor Vehicles Act claiming compensation on account of death of the deceased persons in the motor accident which took place on 8.11.2003, when Tata Sumo Specio vehicle bearing registration No. C.G.-07/2620, on which the deceased persons were traveling, met with an accident on account of rash and negligent driving of the said vehicle by its driver.
The claimant(s) pleaded that on 8.11.2003, the said vehicle was called by one of the deceased namely Rakesh Kumar Sahu, who was a close friend of the owner of the vehicle namely Laxminarayan Dubey, for going to Jagdalpur for Devi-Darshan. The accident took place on the way from Bhilai to Jagdalpur. The driver namely Sanjay Kumar Sahu also died in the accident.
Different amount(s) were claimed by the claimant(s), however, the respective amount(s) shown in the Table (supra) were awarded to them by different award(s).
The Claim Petition filed by the dependents of the driver was dismissed by the Tribunal.
The owner filed his written statement accepting the factum of accident and the insurance of the vehicle. However, he opposed the claims on the ground that exaggerated amount(s) were claimed by the claimant(s).
The Appellant/Insurance Company also filed its written statement. While admitting the factum of insurance of the vehicle with their Company, they pleaded that the vehicle was being plied in breach of policy conditions. It was contended that the vehicle was insured for personal use, whereas, it was being used as a taxi at the time of the accident. They also pleaded that the policy of the insurance covers the risk of 10 persons, whereas, 14 persons were traveling in the vehicle at the time of the accident, therefore, the Appellant/Insurance Company was not liable to pay compensation to the claimant(s).
No permission u/s 170 of the Motor Vehicles Act was granted to the Insurance Company.
The Claims Tribunal held that the accident occurred on account of rash and negligent driving of the offending vehicle by its driver; the vehicle was not being used as a taxi; and the Insurance Company was liable to pay compensation.
Mr. Sudhir Agrawal, learned Counsel appearing on behalf of the Appellant/Insurance Company, very fairly submitted that though no extra premium was paid for covering the risk of occupants of the vehicle but he is not pressing this ground on account of recent circular dated 25.11.2009 of the Head Office, New Delhi as the vehicle was insured under Motor Package Policy also called as Comprehensive Policy. Circular dated 25th November 2009 issued by the Head Office of the Appellant/Insurance Company reads as under:
THE ORIENTAL INSURANCE COMPANY LTD., HEAD OFFICE NEW DELHI
DEPTT: MOTOR
Dated 25th November 2009
CIRCULAR No. HO/MOT(U/W)/282/2008-09/CR-6473
CIRCULAR TO ALLB Os/Dos/R Os, I.A.D, VIGILANCE DEPTT., IT DEPTT. OSTC, ALL DEP1TS. OF H.O. AND C.M.D''S SECTT./SERVICE CENTRE AT HANS ALAYA AND HYDERABAD
LIABILITY OF INSURANCE COMPANIES IN RESPECT OF OCCUPANT OF A PRIVATE CAR AND PILLION RIDER IN A TWO WHEELER UNDER STANDARD MOTOR PACKAGE POLICY (ALSO CALLED COMPREHENSIVE POLICY)
We have received Circular No. IRDA/NL/CIR/F AND U/073/l 1/2009 dt. 16.11.09 from IRDA whereby it is confirmed that insured''s liability in respect of occupant carried in a Private Car and Pillion Rider carried on 2-wheeler is covered under the Standard Motor Package Policy. IRDA has further confirmed that vide various Circulars issued after detariff of Motor, there has been no change in the scope of the standard covers. A copy of the Circular is enclosed for record and ready reference.
The terms of the cover as per the Motor Package Policy for Private Cars and 2-wheeler as given in Policy wording Section 2.1 (i) are very clear and are reconfirmed by the IRDA''s Circular.
It is, therefore, advised to immediately review all cases where appeal has been filed on the grounds that Insurer is not liable for occupants of Private Cars and Pillion Rider in a 2-wheeler under the Motor Package Policy. If the appeal is based solely on these grounds then it must be immediately withdrawn. If there are other grounds for filing appeal then the case must be examined on merits and decision regarding continuation of appeal be taken by the Regional Manager concerned.
Lastly, it must be ensured that our offices desist from filing appeals on the grounds of Pillion Rider or occupants of Private Car not being covered under Motor Package Policies.
Kindly acknowledge receipt and confirm action taken regarding appeal cases to Head Office Motor Department.
Sd/- N.K. SINGH GENERAL MANAGER
Encl: As above.
Admittedly the policy of the vehicle was a Package Policy (Comprehensive Policy) and the deceased persons were the occupants of the vehicle. Therefore, in light of the contents of the above circular, now this ground is not available to the Appellant/Insurance Company, even though no extra premium was paid by the owner for covering the risk of the occupants of the vehicle.
Mr. Sudhir Agrawal argued that the vehicle was being used as a taxi, whereas, it was insured as a private car.
So far as this argument is concerned, we do not find any force in the same. There is ample evidence on record to show that deceased Rakesh Kumar Sahu and Laxminarayan Dubey (owner of the vehicle) were close friends. Both were working as teachers and they had made themselves Mahaprasad (a relationship recognized as brothers in the village) of each other. It is on these relations the said vehicle was called by deceased Rakesh Kumar Sahu for going to Jagdalpur for Devi-Darshan and Rakesh Kumar Sahu and his family members were traveling in the said vehicle. The Tribunal has framed issue on this point and it has scrutinized the evidence adduced on this point at length and has recorded a finding that the vehicle was not being used as a taxi. On due consideration of the entire evidence in each case, we do not find any fault in the said finding recorded by the Tribunal. Therefore, the argument advanced by Mr. Sudhir Agrawal cannot be sustained.
Mr. Sudhir Agrawal then argued that it was a case of over-loading as 14 persons were traveling at the time of the accident, therefore, the Insurance Company would not be liable to pay compensation. In National Insurance Co. Ltd. Vs. Anjana Shyam and Others, , a passenger vehicle was overloaded and the number of dead and injured has exceeded the number of passengers insured. The awards were passed for more than the insured passengers and the Insurance Company was made liable for payment of amounts covered by all the awards. The Insurance company took an objection before the Supreme Court that its liability was confined only to the extent of number of passengers insured by it and should not be extended to cover the persons not covered by the Insurance Policy. The Apex Court held that "In such a situation, the insurance taken for the number of permitted passengers can alone determine the liability of the Insurance Company in respect of those passengers. It held that in terms of Section 149 of the Motor Vehicles Act, the duty of the Insurer is only to satisfy the judgment and awards against the persons insured in respect of the third party risk that is to the extent the third party risk is coverable and is covered".
Referring to National Insurance Co. Ltd. Vs. Anjana Shyam and Others, , this Court has held in Smt. Rambati Madiya and Ors. v. Budanti @ Danteshar Rao and Ors and connected matters 2008 (3) CGLJ 413 (DB), vide Para-14 as under:
Therefore, the law is that in such cases where the vehicle was over loaded, the liability of the insurance Company would be to the extent of number of persons for whom the risk was covered under the agreement and nothing more, but for that kind of breach of policy, the Insurance Company cannot be exonerated from payment of amount of compensation. Hence the finding of the Tribunal that on account of carrying more than permitted persons on the vehicle, the Insurance Company would not be liable to pay compensation even to the persons covered under the Insurance Policy, cannot be sustained and the same is also set aside.
In view of the above, the argument advanced by Mr. Sudhir Agrawal
cannot be sustained, that the Insurance Company would not be liable for payment of amount of compensation because the vehicle was over-loaded at the time of the accident. According to the pleadings of the Insurance Company, the Comprehensive Insurance Policy covers the risk of 10 persons. Therefore, in the facts and circumstances of the case, the Appellant/Insurance Company was liable to pay compensation to the claimant(s), who were the dependants of the nine deceased persons, who died in the said accident.
For the foregoing reasons, we do not find any force in these appeals.
The appeals are liable to be dismissed and are accordingly dismissed.
There shall be no orders as to cost(s).