High Court · 2012

Heard Ms. A. Ajitsaria, learned counsel appearing for the appell ant as well as Mr. S. K. Goswami, learned counsel appearing for the respondent N o.1. This is an appeal under Section 173 of the Motor Vehicles Act, 1 02. 988 by the United India Insurance Co. Ltd. against the judgment and award dated 20.07.2006 passed by the Motor Accident Claims Tribunal, Golaghat in MACT Case N o.01 of 2003. 03. The findings as returned by the Tribunal as regards the accident that occurred on 01.03.2002 when the respondent No.1 was coming to Golaghat by driving the vehicle No.AS-01G/6211 (Tata Sumo) as owned by the respondent No.1 a nd met the said accident at a sharp turning near Garampani, serious injuries tha t he received from the accident compelling him to be treated as an indoor patien t for 25 days and also the insurance cover of the offending vehicle by the appel lant are not in dispute by either of the parties or in the appeal. As such, tho se findings stand affirmed and fresh appraisal thereof is avoided. 04. The solitary question that has been projected in the appeal is t hat whether the appellant as the insurer has any liability to pay any compensati on to the respondent No.1 who received the injuries from the said accident and w hether the liability is limited to the extent of Rs.20,000/- in case it is found that the appellant is under obligation to pay the compensation. Ms. Ajitsaria, learned counsel for the appellant seriously criti 05. cized the findings of the Tribunal while determining the Issue No.2 framed on wh ether the liability of the insurance company, the OP No.2 is limited as contende d. Gainfully the said finding is extracted hereunder: (cid:28)The opposite party No.2 in para 1 of their written statement contended that the ir liability to pay compensation is limited to the extent of Rs.20,000/- subject to the injury sustained by the claimant in the light of IMT-71 under the terms and conditions of the policy. Shri Srimanta Mazumdar, DW1 is the Branch Manager of the OP No.2. He admitted into evidence the certified copy of the policy Ex-A and the relevant portion of the Indian Motor Tariff, Ex-B in support of their co ntention made in para 1 of the additional written statement. During cross-examin ation he stated that the offending vehicle is a private vehicle and the policy o f the vehicle laws a comprehensive policy. I have gone through the Rule 71 of th e Indian Motor Tariff framed by the Tariff Advisory committee and it extended th e benefits to the driver (other than paid driver) who are not otherwise covered in the Workmen Compensation Act. But the present claim petition is filed under s ection 163-A of the Motor Vehicle Act and the OP No.2 does not take the plea tha t the present petition is not maintainable in view of the said Rule 71 I.M.T. Shri Paresh Saikia, the claimant, CW1, deposed that on 01/03/2002 at about 12-15 AM at night he was coming from Sarupathar to Golaghat by driving the offending vehicle and the opposite party No.1, the owner of the vehicle was also with him in the vehicle and while reaching near Garampani, the vehicle turned turtle on t he road due to mechanical defect and as a result he sustained the injury. During cross examination, he stated that the owner is his friend. The claimant has tra velled in the offending vehicle and had driven the same at the request of the ow ner who accompanied him in the vehicle. There is no plea from the side of the In surance company that the claimant did not have any driving licence and the drivi ng licence if any possessed by the claimant was not proper and effective. The DW 1 deposed that the offending vehicle is a private vehicle and the policy was a c omprehensive policy. As the rule 71 IMT is not applicable in this case and the c laimant is the third party in this case. In the case of Oriental Fire and General Insurance Co. Ltd. Vs. Smti. Anita, 199 9(J)TAC, 563, the Hon’ble Madhya Pradesh High Court held as under:- (cid:28)It is also noteworthy that the contract was between the owner of the vehicle an d the Insurance Company. As such, the occupants of the vehicle, in such case, wh ere persons have travelled at the request of the owner for giving him company wo uld be deemed to be a third party. In our considered opinion therefore, Insuranc e company, has rightly been held liable for making of compensation amount. (cid:29) The ruling cited above is benefiting with the facts and circumstances of the cas e in hand. As such the Insurance company, the OP No.2 is liable to pay compensat ion and their liability is not limited as contended. Hence this issue is answere d in the negative. (cid:29) Ms. Ajitsaria, learned counsel for the appellant further submitt 06. ed that the premises in which the said finding has been returned cannot be susta ined in law inasmuch as the occupants of the private vehicle cannot be treated a s the third party as the private vehicles are not supposed to carry passengers a s per the terms of their registration. In consideration thereof, even in the pol icy no premium had been charged. A special contract by paying a premium is unles s entered into between the owner of the vehicle and the insurer, the coverage is not extended to the occupants.

07. On the other hand, Mr. Goswami, learned counsel for the responde nt No.1 submitted that the claimant-respondent No.1 while travelling by the vehi cle sustained the injury. For realising the damage the claim has been raised und er Section 163-A of the Motor Vehicles Act, 1988. Therefore, the negligence is n o more required element for deciding the claim. The claim has to be decided unde r no fault liability. Therefore, the finding as returned by the Tribunal cannot be faulted with. 08. On scrutiny of the records, it appears to this Court that the cl aim was filed under Section 163-A of the Motor Vehicles Act, 1988. From the depo sition of the claimant (CW1) it appears that the respondent No.1 was driving the offending vehicle at the request of the owner of the vehicle, namely, Pulin Cha ndra Bharali, the respondent No.2 herein, who was also accompanying the responde nt No.1 at the time of journey. From the deposition of DW1, namely, Srimanta Maz umdar, a Branch Manager of the United India Insurance Company Ltd. it appears th at no additional premium was paid for the accident coverage of the driver other than the paid driver. The United India Insurance Co. Ltd., Jorhat Branch is liab le to pay as per the norms of the IMT No.71. From the policy certificate, Exbt.A it appears that the policy w 09. as a package policy and the contract of the insurance shall be governed by the t erms, conditions and endorsement as per the tariff regulations applicable as on date of the issuance of the policy. There is no allegation by the appellant that the vehicle was being driven by a person without any licence. It appears from t he accident information report, Exbt.1, the respondent No.1 was having the valid driving licence bearing No.DTGL/385/Prof/2001 which is a professional driving l icence issued by the competent authority. The said driving licence has been admi tted in the evidence as the Exbt.8. Therefore, the owner of the vehicle has enga ged a professional driver for driving his vehicle. For the purpose of understand ing the meaning of the paid driver, the payment is not the only criteria, engage ment of a professional driver; is the sine qua non for that purpose. Therefore, for all purposes the respondent No.1 has to be treated as the paid driver within the meaning of the said policy terms. Apart that, in a package policy there can be no restriction so far the liability emerging out of the accident. A referenc e in this regard is required to be made to a circular of the Insurance Regulator y and Development Authority (IRDA) dated 16.11.2009 whereby it has been stated t hat (cid:28)The Authority vide circular no.066/IRDA/F&U/Mar-08 dated March 26, 2008 iss ued under File & Use Guidelines has reiterated that pending further orders the i nsurers shall not vary the coverage, terms and conditions, wordings, warranties, clauses and endorsements in respect of covers that were under the erstwhile tar iffs. Further the Authority, vide circular no.019/IRDA/NL/F&U/Oct-08 dated Novem ber 6, 2008 has mandated that insurers are not permitted to abridge the scope of standard covers available under the erstwhile tariffs beyond the options permit ted in the erstwhile tariffs. All General Insurers are advised to adhere to the aforementioned circula rs and any non-compliance of the same would be viewed seriously by the Authority . (cid:29) Therefore, there is no relevance of the IMT No.71 as referred by the appella nt. However, this provision is not required to be referred to in view of what ha s been observed by this Court regarding the status of the respondent No.1 in ter ms of the policy. As corollary to this, this Court holds that there is no substanc 10. e in the appeal and accordingly the appeal is dismissed. However, there shall no t be any order as to cost. The appellant is directed to pay the entire amount of compensation with interest as has been determined by the Tribunal within a peri od of two months from today in the Tribunal. The statutory deposit, if any, may be returned to the appellant for the purpose of making the final payment. There shall be no order as to costs. Send down the LCRs forthwith.