Oriental Insurance Company Limited vs Sundar Lal Chandrakar

Sanjay K. Agrawal, J

This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”) has been preferred by the appellant/claimant seeking enhancement in the amount of compensation, challenging the impugned award dated 26.09.2022 passed by the 1st Additional Motor Accident Claims Tribunal, Durg, Chhattisgarh (for short “Claims Tribunal”) in Claim Case No. 297/2021, whereby learned Claims Tribunal has allowed the claim application of the claimants by fastening the liability upon the Insurance Company/appellant herein to pay the awarded to the tune of ₹3,70,000/- as compensation along with interest to the claimants.

Mr. Anil Gulati, learned counsel for the appellant, would submit as under:-

(i) that vehicle was a private car which was being used for the commercial purpose as per Ex.D/2, therefore, it was being plied in terms and conditions of the insurance policy.

(ii) Even the offending vehicle is found to be not used for commercial purpose, the liability would be limited and confined to the extent of ₹1,00,000/- in view of GR-36-B-2.

None for the respondents though served.

Mr. Akash Shrivastava, learned counsel appearing as amicus curiae, would submit that it has not been proved by the Insurance Company that the offending vehicle was used for the commercial purpose and though the plea of limited liability has been taken but no evidence has been laid down by the Insurance Company except the statement of Alok Verma (NAW-1), therefore, the instant appeal deserves to be dismissed.

I have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records precisely.

First plea of the Insurance Company is that the vehicle was being used for the commercial purpose as the same was being used for carrying passengers. In this regard, copy of owner certificate (Ex.D/1) has been produced by the appellant herein and the author of the said document who is the driver-cum-owner has also been examined. However, Claims Tribunal with regard to Ex.D/1 has recorded a finding in paragraph No.14 of its judgment that merely because that vehicle was being taken for booking, it cannot be held that the it was being used for the commercial purpose in absence of specific evidence which appears to be correct finding of fact based on evidence available on record and, as such, I do not find any merit in this argument, accordingly the same is dismissed.

The next plea raised by the Insurance Company is the limited liability vide Ex.D/2 on the basis evidence of the Administrative Officer Alok Verma (NAW-1). However NAW-1 has only stated that as per GR-36-B-2, the contractual liability of the Insurance Company is ₹1,00,000/-. However, GR-36-B-2 neither has been filed nor attached with the insurance policy. In this regard the decision of the Supreme Court in the matter of Manjusha and others v. United India Assurance Company Limited and another 1 may be noticed herein. In which their Lordships of the Supreme Court have held that guidelines issued by the Tariff Advisory Committee regulates the issuance of the policies by the insurer but unless it is specified in the insurance policy, it cannot be bind the insured and observed as under:-

When the contention of limited liability was neither taken before the Tribunal nor even in the memorandum of appeal filed, there was no reason for the High Court to look into the policy document to find limited liability; which again is urged before us on the basis of an extract of the Indian Motor Tariffs, termed to be a guideline issued, with respect to insurance policies, by the Tariff Advisory Committee. By the guidelines it is intended that a comprehensive regulatory framework governing the structure, terms, conditions and premium rates applicable to Motor Vehicle policies in India is created. It is stated that the IMT is binding on all general insurance companies, operating in the Country and ensures uniformity and fairness in underwriting motor insurance risk. No doubt, the guidelines issued by the Tariff Advisory Committee regulates the issuance of the policies by the insurers but unless it is specified in the insurance policy, it cannot bind the insured.

Specific reference was also made to IMT 16 which has the nominal heading ‘personal accident to unnamed passengers other than insured and paid driver and the cleaner’, which is stated to be limited to the amounts specified therein. Under IMT 16, there is a tabular form which enables 100% compensation with respect to various injuries inter alia of death. It is in the proviso that there is a limit provided with specification that the Capital Sum Insured (CSI) per person is to be inserted. Whether such sum was inserted in the policy and whether such a contention was taken before the Tribunal is most relevant in the adjudication of the instant case.

In this context, we cannot but notice Ramkhiladi6, in which there was a contention taken by the claimant that the deceased was employed by the owner of the vehicle, the motor bike. It was held in paragraph 9.3 that no evidence was led by the claimants to prove that the deceased driver was an employee of the owner. Pleadings and proof of such pleadings; by valid evidence led, is the crux and core of any adjudicatory process. Trite is the principle that there can be no proof offered without specific pleadings. The limited liability was not pleaded, by the insurance company, either before the Tribunal, as we see from the award made, nor in the appeal filed before the High Court as we see from the memorandum of appeal filed before the High Court.

Coming to the facts of the present case, with regard to the plea of limited liability except self serving statement of Alok Verma (NAW-1) no evidence has been brought on record by the Insurance Company and even GR-36-B-2 has not been filed along with the policy neither before the Tribunal nor before this Court to demonstrate that in GR-36-B-2 the contractual liability is ₹1,00,000/-.

In view of the aforesaid discussion and analysis, I hereby affirm the finding recorded bytheClaimsTribunal,consequently, accordingly, the instant appeal is dismissed. No order as to cost(s).

This Court appreciates the assistance rendered by Mr. Akash Shrivastava, learned counsel, as amicus curiae in the present case.