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Judgment
Hon'ble Siddhartha Sah, J. (Oral)
By means of the Appeal From Order No.340 of 2017 under Section 173 of the Motor Vehicles Act, 1988, the appellant/insurer has assailed the impugned judgment and award dated 22.04.2017, passed by the learned Motor Accident Claims Tribunal, Uttarkashi in MACP No. 13 of 2016, by which an amount of Rs.6,54,040/- was awarded as compensation by the learned Tribunal.
By means of the Appeal From Order No.339 of 2017 under Section 173 of the Motor Vehicles Act, 1988, the appellant/insurer has assailed the impugned judgment and award dated 22.04.2017, passed by the learned Motor Accident Claims Tribunal, Uttarkashi in MACP No.11 of 2016, by which an amount of Rs.56,39,680/- was awarded as compensation by the learned Tribunal.
By means of the Appeal From Order No.341 of 2017 under Section 173 of the Motor Vehicles Act, 1988, the appellant/insurer has assailed the impugned judgment and award dated 22.04.2017, passed by the learned Motor Accident Claims Tribunal, Uttarkashi in MACP No.12 of 2016, by which an amount of Rs.4,70,000/- was awarded as compensation by the learned Tribunal.
All these three Appeals from Order arise from an accident which occurred on 24.09.2015 and three claim petitions were filed on account of the death of father, mother and brother of the minor claimant. Therefore, they are being heard and decided together.
Since the facts are identical, therefore, facts of A.O. No. 340/2017 are being stated hereunder :-
Claim Petition No.13 of 2016, Km. Vaishnavi vs. Reliance General Insurance Company was filed with the averments that the mother of the claimant-Smt. Poonam Pawar along with the entire family including the claimant, her father and brother were traveling in vehicle bearing no.UK 07 X 0436 Maruti to Dehradun. The said vehicle was being driven by the driver Ashish, and as soon as the said vehicle reached a place Kaplani (Suwakholi), Thana Mussoorie, District Dehradun, the vehicle met with an accident due to the rash and negligent driving of the driver, in which the passengers traveling in the said vehicle, being the mother, father, brother and the driver met with a sad demise at the place of the accident and the claimant somehow was saved. The FIR of the accident was registered at Police Station Mussoorie, District Dehradun.
Therefore, three separate claim petitions came to be filed in the court of Motor Accident Claims Tribunal, Uttarkashi, in which compensation was sought separately on account of the death of mother, father and the brother of the claimant respectively.
The insurance company contested the claim petition by filing its WS. The vehicle owner also contested the claim petition by filing his WS. After the exchange of pleadings, the issues were framed. Issue nos. 1, 3 and 5 were decided together and the learned Tribunal came to the conclusion that PW-2 Shri Pramod Singh Rana, who was traveling on his vehicle on that motor road and was going to Dehradun, is the eyewitness of the incident. In his affidavit of evidence, he has clearly stated that driver of vehicle no. UK 07 X 0436 Maruti 800 was driving the vehicle rashly and negligently and he overtook the vehicle of the said witness. As soon as the said vehicle reached 30 meters ahead of the vehicle of the witness, it lost control and fell into the gorge beside the road. After search operations, it was found that the passengers in the vehicle died on the spot, however, the claimant, aged one year, was saved.
The issue no.1 was decided by the learned Tribunal to the effect that the accident occurred due to the rash and negligent driving of the driver of vehicle no. UK 07 X 0436 Maruti and therefore, the claim petition under Section 166 of the Motor Vehicles Act is maintainable. The learned Tribunal also came to the conclusion that since the deceased was traveling in the vehicle as a gratuitous passenger, therefore, the fact is insignificant that the deceased was a valid passenger or not.
The issue no.2 was decided to the effect that on the date of the accident, the driver of the vehicle in question was holding a valid and effective driving license and all the documents of the vehicle were valid and effective and the vehicle was insured with Reliance General Insurance Company Ltd.
The issue no.4 regarding the quantum of compensation and from whom, was decided against the insurance company, and the claim petition was allowed by granting a compensation of an amount of Rs. 6,54,040/-.
Assailing the aforesaid impugned judgments and awards, the learned counsel for the insurance company, Mr. Pulak Agarwal would submit that the claim petition has been filed under Section 166 of the Motor Vehicles Act and since there is no FIR of the incident, hence the claim petition would not be tenable. He would submit that regarding the accident, there is a GD entry of Thana Mussoorie that the accident was a coincidence. The vehicle fell into a gorge since it got out of control. He would further submit that the claimants have produced only one eyewitness, Mr. Pramod Singh Rana and in the absence of any FIR, his testimony cannot be relied upon.
On facts, learned counsel for the appellant/ insurance company would submit that the occupants in the vehicle were not the owner of the car, but someone else. The vehicle was being used for hire or reward, therefore, there is breach of policy conditions, and the insurance company cannot be held liable for paying any compensation. He would further submit that on account of the aforesaid grounds, the appeals deserve to be allowed and the impugned judgments and awards are liable to be set aside.
Referring to Appeal from Order No.339 of 2017, learned counsel for the appellant would submit that the deceased-Mr. Suresh Pawar, was an Assistant Teacher, and his income was claimed to be Rs.35,799/- per month, but no witness has been produced to prove his salary slip. Therefore, he would submit that the income of the deceased, late Suresh Pawar is not duly proved, hence the learned Tribunal erred by assessing the income of the deceased, Mr. Suresh Pawar at Rs. 35,799/- per month.
Learned counsel for the appellant has relied upon the judgment of the Hon'ble Supreme Court in the case of Surender Kumar Arora and Another vs. Manoj Bisla and Others, reported in (2012) 4 SCC 552 and has referred to paragraph nos. 9 and 10 thereof. Paragraph nos. 9 and 10 are being extracted hereunder for ready reference:
“9.Admittedly, the petition filed by the claimants was under Section 166 of the Act and not under Section 163-A of the Act. This is not in dispute. Therefore, it was the entire responsibility of the parents of the deceased to have established that Respondent 1 drew the vehicle in a rash and negligent manner which resulted in the fatal accident. Maybe, in order to help Respondent 1, the claimants had not taken up that plea before the Tribunal. Therefore, the High Court was justified in sustaining the judgment and order passed by the Tribunal. We make it clear that if for any reason, the claimants had filed the petition under Section 163-A of the Act, then the dicta of this Court in Kaushnuma Begum [(2001) 2 SCC 9 : 2001 SCC (Cri) 268] would have come to the assistance of the claimants.
10.In our view the issue that we have raised for our consideration is squarely covered by the decision of this Court in Oriental Insurance Co. Ltd. [(2007) 5 SCC 428 : (2007) 2 SCC (Cri) 527] In the said decision the Court stated: (SCC pp. 445-46, para 27)
“27.… 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.”
While placing reliance on the judgment of Surender Kumar Arora (supra), learned counsel for the appellant would submit that it is the burden of the claimants to prove that the vehicle was being driven rashly and negligently. He would further submit that the occupants would not be covered specifically and would therefore not be entitled to compensation.
Per contra, learned counsel for the claimant/ respondent Mr. Pramod Belwal, would submit that so far as the contention regarding the tenability of the claim petition is concerned, issue no.3 was specifically framed regarding the maintainability of the claim petition and while issue nos. 1, 3, and 5 were decided together, the learned Tribunal has dealt with the said issue. Learned counsel for the claimant-respondent would submit that the witness, Pramod Singh Rana, who was the eyewitness and was going to Dehradun from Uttarkashi at around 7:30 PM on 24.09.2015 had actually seen the occurrence of the said accident, and he has categorically deposed before the Tribunal that the driver of vehicle No. UK-07-X-0436 Maruti car was driving rashly and negligently and he overtook the car of the witness and thereafter the vehicle fell into a deep gorge since it got uncontrollable.
He would further refer to the cross-examination of the said witness, in which he denied the suggestion that the accident did not occur due to the rash and negligent driving and it was by coincidence. He would further submit that Issue No. 1 was decided against the insurance company. He would further submit that while deciding motor accident claims cases, the Tribunal cannot decide it on the principle of beyond reasonable proof, but on the basis of preponderance of probabilities.
The learned counsel for the claimant/ respondent has relied upon a judgment of the Hon'ble Supreme Court in the case of Raj Kumar Das vs. National Insurance Company Ltd. reported in 2026 (5) Supreme 141(2026 SCC OnLine SC 930) and has referred to paragraph No. 8 thereof. Paragraph 8 thereof is being extracted hereunder for ready reference:-
“8.At the outset, we would like to reiterate that the nature of proceedings under the Act are summary in nature, with an aim to provide expeditious justice. It is a settled position of law that a claim petition is to be decided on the touchstone of preponderance of probability and not proof beyond reasonable doubt. Further in a claim under Section 163A, the enquiry is narrower still, for negligence is not required to be proved, and it is sufficient that the injury is reasonably connected with the motor vehicle in question.”
On the ground as agitated by learned counsel for the appellant that the deceased was a fare-paying passenger, the learned counsel for the claimant/ respondent would contend that the deceased was a non-fare paying passenger/occupant of a private car. The insurance policy was a package policy which covers occupants of a car/vehicle.
The learned counsel for the claimant/respondent has relied upon a judgment of the Hon'ble Supreme Court in the case of Oriental Insurance Company vs. Surendra Nath Loomba and Others, reported in (2012) 13 SCC 792 and has drawn the attention of the Court to paragraph Nos. 13 and 14 thereof. Paragraph Nos. 13 and 14 thereof are being extracted hereunder for ready reference:
“13.It is apt to note here that this Court in Bhagyalakshmi v. United Insurance Co. Ltd. [(2009) 7 SCC 148 : (2009) 3 SCC (Civ) 87 : (2009) 3 SCC (Cri) 321] , after dealing with various facets and considering the authorities in Amrit Lal Sood v. Kaushalya Devi Thapar [(1998) 3 SCC 744 : 1999 SCC (Cri) 158] , Asha Rani [(2003) 2 SCC 223 : 2003 SCC (Cri) 493] , Tilak Singh [(2006) 4 SCC 404 : (2006) 2 SCC (Cri) 344] , Jhuma Saha [(2007) 9 SCC 263 : (2007) 3 SCC (Cri) 443] and Sudhakaran K.V. [(2008) 7 SCC 428 : (2008) 3 SCC (Cri) 110] , has observed thus: (Bhagyalakshmi case [(2009) 7 SCC 148 : (2009) 3 SCC (Civ) 87 : (2009) 3 SCC (Cri) 321] , SCC p. 158, para 25)
“25.Before this Court, however, the nature of policies which came up for consideration were Act policies. This Court did not deal with a package policy. If the Tariff Advisory Committee seeks to enforce its decision in regard to coverage of third-party risk which would include all persons including occupants of the vehicle and the insurer having entered into a contract of insurance in relation thereto, we are of the opinion that the matter may require a deeper scrutiny.”
14.Recently this Bench in National Insurance Co. Ltd. v. Balakrishnan [(2013) 1 SCC 731 : (2013) 1 SCC (Cri) 677 : (2013) 1 SCC (Civ) 771] , after referring to various decisions and copiously to the decision in Bhagyalakshmi [(2009) 7 SCC 148 : (2009) 3 SCC (Civ) 87 : (2009) 3 SCC (Cri) 321] , held that there is a distinction between “Act policy” and “comprehensive/package policy”. Thereafter, the Bench took note of a decision rendered by the Delhi High Court in Yashpal Luthra v. United India Insurance Co. Ltd. [2011 ACJ 1415 (Del)] wherein the High Court had referred to the circulars issued by the Tariff Advisory Committee (TAC) and the Insurance Regulatory and Development Authority (IRDA). This Court referred to the portion of Circulars dated 16-11-2009 and 3-12-2009 which had been reproduced by the High Court and eventually held as follows: (Balakrishnan case [(2013) 1 SCC 731 : (2013) 1 SCC (Cri) 677 : (2013) 1 SCC (Civ) 771] , SCC pp. 743-44, paras 24-27)
“24.It is extremely important to note here that till 31-12-2006 the Tariff Advisory Committee and, thereafter, from 1-1-2007 IRDA functioned as the statutory regulatory authorities and they are entitled to fix the tariff as well as the terms and conditions of the policies issued by all insurance companies. The High Court had issued notice to the Tariff Advisory Committee and IRDA to explain the factual position as regards the liability of the insurance companies in respect of an occupant in a private car under the ‘comprehensive/package policy’. Before the High Court, the competent authority of IRDA had stated that on 2-6-1986, the Tariff Advisory Committee had issued instructions to all the insurance companies to cover the pillion rider of a scooter/motorcycle under the ‘comprehensive policy’ and the said position continues to be in vogue till date. It had also admitted that the ‘comprehensive policy’ is presently called a ‘package policy’. It is the admitted position, as the decision would show, the earlier Circulars dated 18-3-1978 and 2-6-1986 continue to be valid and effective and all insurance companies are bound to pay the compensation in respect of the liability towards an occupant in a car under the ‘comprehensive/package policy’ irrespective of the terms and conditions contained in the policy. The competent authority of IRDA was also examined before the High Court who stated that the Circulars dated 18-3-1978 and 2-6-1986 of the Tariff Advisory Committee were incorporated in the Indian Motor Tariff effective from 1-7-2002 and they continue to be operative and binding on the insurance companies. Because of the aforesaid factual position, the Circulars dated 16-11-2009 and 3-12-2009, that have been reproduced hereinabove, were issued.
25.It is also worthy to note that the High Court, after referring to individual circulars issued by various insurance companies, eventually stated [2011 ACJ 1415 (Del)] thus: (Yashpal Luthra case [2011 ACJ 1415 (Del)] , ACJ p. 1424, para 27)
‘27. In view of the aforesaid, it is clear that the comprehensive/package policy of a two-wheeler covers a pillion rider and comprehensive/package policy of a private car covers the occupants and where the vehicle is covered under a comprehensive/package policy, there is no need for the Motor Accidents Claims Tribunal to go into the question whether the insurance company is liable to compensate for the death or injury of a pillion rider on a two-wheeler or the occupants in a private car. In fact, in view of the TAC's directives and those of IRDA, such a plea was not permissible and ought not to have been raised as, for instance, it was done in the present case.’
26.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 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 Bhagyalakshmi [(2009) 7 SCC 148 : (2009) 3 SCC (Civ) 87 : (2009) 3 SCC (Cri) 321] 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 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.
27.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 ‘comprehensive/package policy’? There has been no discussion either by the Tribunal or the High Court in this regard. True it is, before us, Annexure P-1 has been filed which is a policy 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.”
Placing reliance upon the judgment in the case of Surendra Nath Loomba (supra), learned counsel for the claimant/respondent would submit that in the said judgment, the Hon'ble Supreme Court has clarified the legal position as regards the liability of the insurance companies in respect of an occupant in a private car under a comprehensive/package policy. Thus, learned counsel for the claimant/respondent would submit that since the deceased was an occupant in a vehicle whose insurance policy was a package policy, therefore, all the occupants of the car would be entitled to be granted compensation by the insurance company. Therefore, he would submit that the claim petition under Section 166 of the Motor Vehicles Act was legally maintainable.
Learned counsel for the claimant/respondent while placing reliance upon a judgment of a Coordinate Bench of this Court in the case of ICICI Lombard General Insurance Company vs. Nahid & Others, Appeal From Order No. 174 of 2023 (judgment dated 09.04.2026), would submit that in view of the provisions of Order 41 Rule 33 of the CPC, enhancement for future prospects needs to be granted, since that aspect has been overlooked by the learned Tribunal.
Learned counsel for the claimant/respondent has relied upon a judgment of the Hon'ble Supreme Court in the case of Shishu Pal & Others vs. Surjeet & Others, reported in 2026 SCC OnLine SC 1114 and has drawn the attention of the Court to paragraph 20 thereof. Para 20 is being extracted hereunder for ready reference:
“20.It is in these circumstances, that we deem it appropriate to direct that when a Motor Accidents Claim Tribunal or the High Court or this Court is concerned with or a case involving the death of a homemaker, in order to overcome the inherent disadvantage accrued against the homemaker on a calculation of compensation on the basis of conservatively computed notional income and while being acutely aware of the dictum in Pranay Sethi (supra) regarding loss of consortium as also the disposition towards uniformity, that for the three major heads (the homemaker's contribution towards smooth functioning of the household, the loss of maternal support for children and loss of spousal support/the support and care of their child who is an adult, for the parents of the deceased) discussed in the foregoing paragraphs, a composite sum of Rs. 30,000/- shall be added under the head of ‘loss of domestic care’, provided that all three of these heads are met in the given case. This determination shall be revised by 10%, cumulatively, every three years. It may be clearly stated that this amount of Rs. 30,000/-i.e., loss of domestic care is to be taken as a ‘stand-in’ (basic minimum monthly income) for monthly income in those cases where the homemaker does not have an input into the house, in strictly conventional, monetary terms. In those cases where the homemaker is part of the workforce, the component of loss of domestic care shall be in addition to the monthly income as may be proved before the Tribunal/Courts.”
Placing reliance upon the aforesaid judgment in the case of Shishu Pal (supra), learned counsel for the claimant/respondent would submit that in view of the said judgment, the compensation needs to be enhanced on the basis of computing the monthly income of the deceased-Smt. Poonam Panwar to be Rs. 30,000/-per month on the ground of being a homemaker and as such, the compensation deserves enhancement.
Learned counsel for the claimant/respondent has also contended that the claimants/respondents in all the three connected appeals are also entitled to future prospects, heads of loss of consortium, loss of estate and funeral expenses, as have been laid down by the Hon'ble Supreme Court in the case of National Insurance Company Ltd. vs. Pranay Sethi and Others, reported in (2017) 16 SCC 680. He would submit that at least the awarded compensation deserves to be enhanced in view of the judgment in the case of Pranay Sethi (supra).
Learned counsel for the claimant/respondent would also respond to the contention raised by the learned counsel for the appellant that the salary slip is not duly proved. Learned counsel for the claimant/ respondent, Mr. Pramod Belwal would submit that the salary slip is duly corroborated by PW-1 Mr. Mahendra Singh Pawar, and the finding to that effect is duly returned in the disposal of Issue No. 4. He would submit that PW-1, who is the elder brother of the deceased and who appeared as PW-1 before the Tribunal, had duly deposed that the deceased was working on the post of Assistant Teacher in Primary School, Sagara and he was drawing a monthly salary of Rs.35,799/-.
Learned counsel for the claimant/respondent would further submit that there is not a single rebuttal against the said evidence as adduced on behalf of the claimants. In fact, no objection has been raised against the said salary slip, and at the appellate stage, it is not open to the insurance company to raise the said contention regarding the salary slip.
Regarding Appeal from Order No. 341 of 2017, learned counsel for the claimant/respondent would submit that the learned Tribunal erred by awarding a lump sum amount of Rs.4,70,000/- as compensation on account of the death of a 6 year old boy child-Shaurya Pawar, who was the brother of the claimant/respondent. Learned counsel for the claimant/respondent would submit that the income on account of the death of the brother-Shaurya Pawar, ought to be determined on the basis of notional income. He has relied upon the judgment of the Hon'ble Supreme Court in the case of Hansraj v. Mukesh Nath & Others, reported in 2026 (4) Supreme (SC) 494, and has drawn the attention of the Court to paragraph 8 of the said judgment, which is being extracted hereunder for ready reference:
“8.Under the head of attendant charges, the High Court has awarded sum of Rs. 1,21,800/-. This figure again is on a lower side. As held by this Court in Kajal (supra), the minimum wages admissible in this regard will have to be taken. The figure of Rs. 5,000/- as monthly wages of a semi-skilled workman is accordingly taken into account being the charges of an attendant for a month. The appellant having suffered permanent disability, he would require the assistance of two attendants round the clock. Applying the multiplier of 18, this figure would come to Rs. 21,60,000/-.”
On the basis of the aforesaid judgment of the Hon'ble Supreme Court in the case of Hansraj (supra), learned counsel for the claimant/respondent would submit that the compensation on account of the death of late Shaurya Pawar also needs enhancement.
In rejoinder, learned counsel for the appellant, Mr. Pulak Agarwal, would submit that the enhancement as sought under various heads as well as the enhancement with reference to certain judgments cited by the learned counsel for the claimant/respondent, cannot be granted. He would contend that since no appeal has been filed by the claimant/respondent for the enhancement of the compensation as awarded by the learned Tribunal, no question arises for the enhancement of the compensation already determined.
He would further submit that since the claimant/respondent was satisfied with the quantum of the compensation as was awarded by the learned Tribunal, no appeal for enhancement was filed.
While placing reliance upon a judgment of the Hon'ble Supreme Court in the case of Ranjana Prakash and Others vs. Divisional Manager and Another, reported in (2011) 14 SCC 639, learned counsel for the appellant, Mr. Pulak Agarwal, would submit that provisions of Order 41 Rule 33 of the CPC cannot be pressed into service for a higher relief. He would refer to paragraph numbers 6, 7 and 8 of the said judgment, which are being reproduced hereunder for ready reference:
“6.We are of the view that the High Court committed an error in ignoring the contention of the claimants. It is true that the claimants had not challenged the award of the Tribunal on the ground that the Tribunal had failed to take note of the future prospects and add 30% to the annual income of the deceased. But the claimants were not aggrieved by Rs 23,134 being taken as the monthly income. There was therefore no need for them to challenge the award of the Tribunal. But where in an appeal filed by the owner/insurer, if the High Court proposes to reduce the compensation awarded by the Tribunal, the claimants can certainly defend the quantum of compensation awarded by the Tribunal, by pointing out other errors or omissions in the award, which if taken note of, would show that there was no need to reduce the amount awarded as compensation. Therefore, in an appeal by the owner/insurer, the appellant can certainly put forth a contention that if 30% is to be deducted from the income for whatsoever reason, 30% should also be added towards future prospects, so that the compensation awarded is not reduced. The fact that the claimants did not independently challenge the award will not therefore come in the way of their defending the compensation awarded, on other grounds. It would only mean that in an appeal by the owner/insurer, the claimants will not be entitled to seek enhancement of the compensation by urging any new ground, in the absence of any cross-appeal or cross-objections.
7.This principle also flows from Order 41 Rule 33 of the Code of Civil Procedure which enables an appellate court to pass any order which ought to have been passed by the trial court and to make such further or other order as the case may require, even if the respondent had not filed any appeal or cross-objections. This power is entrusted to the appellate court to enable it to do complete justice between the parties. Order 41 Rule 33 of the Code can however be pressed into service to make the award more effective or maintain the award on other grounds or to make the other parties to litigation to share the benefits or the liability, but cannot be invoked to get a larger or higher relief. For example, where the claimants seek compensation against the owner and the insurer of the vehicle and the Tribunal makes the award only against the owner, on an appeal by the owner challenging the quantum, the appellate court can make the insurer jointly and severally liable to pay the compensation, along with the owner, even though the claimants had not challenged the non-grant of relief against the insurer. Be that as it may.
8.Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by the owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by the owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation.”
Bare perusal of the judgment in the case of Ranjana Prakash and Others (supra) would show that in an appeal by the owner/insurer, the claimants will not be entitled to seek enhancement of the compensation by urging any new ground, in the absence of any cross-appeal or cross-objection.
He would further submit that Order 41 Rule 33 of the Code can, however, be pressed into service to make the award more effective or maintain the award on other grounds or to make the other parties to the litigation share the benefits or the liability, but cannot be invoked to get a larger or higher relief.
He has also stressed that the High Court cannot obviously increase the compensation in an appeal by the owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of the compensation.
He would thus submit that there is no question of enhancing the compensation already awarded by the learned Tribunal, nor is there any question of granting compensation on additional heads which were not granted by the learned Tribunal.
"In view of the aforesaid rival submissions on behalf of the learned counsel for the appellant and the claimant/respondent, the main points for determination which arise for in this appeal are as follows:
Whether the claim petition by the claimant/respondent was tenable under Section 166 of the Motor Vehicles Act?
Whether the occupants/deceased were travelling in the vehicle as non-fare passengers as contended by the learned counsel for the claimant/respondent or were they occupants for hire or reward as being contended by the learned counsel for the appellant insurance company?
Whether the compensation as awarded by the learned Tribunal deserves any enhancement as being contended on behalf of the learned counsel for the claimant/ respondent?
On point for determination No.1 the contention is raised by the learned counsel for the appellant, Mr. Pulak Agarwal, Advocate that the claim petition would not be tenable in the absence of FIR and only on the basis of GD entry.
It is clear from the record, as being contended on behalf of the learned counsel for the claimant/ respondent, that issue no. 3 was specifically framed by the learned Tribunal pertaining to the tenability of the claim.
Perusal of the impugned judgment would reveal that issue nos. 1, 3 and 5 were decided together and the learned Tribunal while deciding all the three issues, came to the conclusion that on the basis of evidence available on record, it is clearly proved that the vehicle in question was being driven by the driver rashly and negligently, due to which the accident occurred and the occupants of the vehicle sustained grievous injuries and they died on the spot. Since the vehicle was being driven rashly and negligently, therefore, the claim petition is tenable under Section 166 of the Motor Vehicles Act.
Thus, this issue has already been dealt with and duly decided by the learned Tribunal. It is a well-considered disposal on issue nos. 1, 3, and 5 and this Court does not find any error in deciding the said issue regarding the tenability.
So far as the point for determination no.2, which is based on the contentions as raised by the learned counsel for the appellant that the occupants in the vehicle were occupants for hire and reward, and since there is a breach of policy conditions, therefore, the insurance company cannot be held liable for paying the compensation.
On the other hand, learned counsel for the claimant/respondent has relied upon the judgment of the Hon'ble Supreme Court in the case of Oriental Insurance Company Limited v. Surendra Nath Loomba and Others, wherein it has been categorically held by the Hon'ble Supreme Court that if the insurance policy is a package policy, it covers occupants of the car. Since this point for determination is squarely covered by the judgment of the Hon'ble Supreme Court in the case of Surendra Nath Loomba (supra), and it has also been dealt with by the learned Tribunal in disposal of issue no.2, hence this Court does not find any error in the judgment of the learned Tribunal in deciding issue no 2. The point for determination no. 2 is decided accordingly.
This point for determination no.3 has been framed on the contentions raised on behalf of the learned counsel for the claimant/respondent, Mr. Pramod Bailwal. Learned counsel for the claimant/respondent has vehemently argued that though the claimant/respondent has not filed an independent appeal or a cross-appeal, yet in view of the recent judgments of the Hon'ble Supreme Court in the case of Shishupal and Others (supra) and Hansraj (supra), the compensation as awarded by the learned Tribunal deserves enhancement. He has also relied upon a judgment of a coordinate Bench of this Court rendered in Appeal from Order No. 174 of 2023, ICICI Lombard General Insurance Company v. Nahid and Others.
Thus, placing reliance upon the legal principles as enunciated by the Hon'ble Supreme Court in the cases of Shishupal and Others (supra) and Hansraj (supra), and also the judgment in the case of ICICI Lombard General Insurance Company rendered by a coordinate Bench of this Court, learned counsel for the appellant would submit that the claimant/respondent is entitled to enhancement on account of future prospects, on account of the heads of loss of consortium, loss of estate, and funeral expenses.
He would also submit that the lump-sum amount as has been granted on account of the death of Shaurya Pawar is also very inadequate, and it ought to have been granted on the basis of notional income.
On the other hand, learned counsel for the appellant insurance company, Mr. Pulak Agarwal, Advocate, would rely on the judgment of the Hon'ble Supreme Court in the case of Ranjana Prakash and Others (supra), and he has vehemently argued that there is no question of any enhancement since the claimant/respondent has neither filed any independent appeal for enhancement nor has filed any cross-appeal. Hence, there is no question of enhancement in the appeal of the insurance company.
While placing reliance upon the judgment in the case of Ranjana Prakash and Others (supra) he would submit that in the said case, the Hon'ble Supreme Court has held that claimants will not be entitled to seek enhancement of the compensation by urging any new ground in the absence of any cross-appeal or cross-objection.
He has also submitted that Order 41 Rule 33 of the CPC cannot be pressed into service to get a larger or higher relief. He also submits that this Court cannot increase the compensation in an appeal by the owner/insurer.
After having considered the submissions on this point as advanced by the learned counsel for the parties, it is clear that though in the case of Shishupal and Others (supra), the Hon'ble Supreme Court has provided for additional head on account of loss of domestic care, however, the enhancement on the said head would be available to the claimant/respondent had she filed a separate appeal for enhancement.
The judgment in the case of ICICI Lombard General Insurance Company rendered by a coordinate Bench also does not come to the aid of the claimant/respondent in the light of the judgment of the Hon'ble Supreme Court in the case of Ranjana Prakash and Others (supra).
The judgment of the Hon'ble Supreme Court in the case of Hansraj (supra) also does not come to the aid of the claimant/respondent, inasmuch as in the absence of any independent appeal or a cross-appeal by the claimant/respondent, there is no question of enhancement of compensation.
Thus, in view of the aforesaid consideration/analysis, the enhancement of the compensation as being contended on behalf of the learned counsel for the claimant/respondent does not arise. Therefore, point for determination no.3 is answered against the claimant/respondent that in an appeal by the insurance company, the claimant/respondent cannot seek enhancement of compensation in the absence of any cross-appeal or an independent appeal by the claimant.
Thus, on account of the aforesaid facts and circumstances, the contentions as raised by the learned counsel for the appellant do not find force with the Court, and the appeals deserve to be dismissed, also the enhancement as being sought on behalf of the claimant/respondent also cannot be granted. Thus, the appeals deserve to be dismissed.
The insurance company is directed to deposit the balance amount before the concerned Tribunal within 45 days from the date of production of the certified copy of this order after deducting the amount which has already been paid to the claimants.
The registry is directed to remit the statutory amount to the Motor Accident Claims Tribunal concerned forthwith. The original records be also transmitted to the concerned Tribunal.