S.Jayanthi v. D.Ramesh

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED : 23.04.2010CORAM:THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMANC.M.A(MD)No.69 of 2010S.Jayanthi ... Appellant/ClaimantVs.

D.Ramesh2. The Branch Manager, Oriental Insurance Company Limited, Gopal Rao Library Building, First Floor, Town Hall Road, Kumbakonam. ... Respondents/RespondentsPRAYER: Civil Miscellaneous Appeal filed under Section 173 of MotorVehicles Act, 1988 against the judgment and decree dated 09.11.2009 made inM.C.O.P.No.666 of 2007, on the file of the Motor Accidents Claims Tribunal(Additional Sub Judge), Kumbakonam. For Appellant : Mr.R.A.S.AnandarajFor Respondent-1 : Mr.R.Maheswaran For Respondent-2 : Mr.K.Bhaskaran JUDGMENTThe Pillion riders/occupants of the two-wheelers/cars, got injured/deadare put to untold sufferings in getting compensation provided under the Motor Vehicles Act, though they are covered by the package policy. It is not mandatory under the Motor Vehicles Act(shortly the 'Act') to cover the risk of pillion riders and occupants of the car. It is high-time that the Motor Vehicles Act be amended making it compulsory that the pillion riders and occupants of the car should also be covered under the Insurancepolicy, particularly, when there is vehicular explosion in our country, competing with the population explosion. In fact, the automobile industry have succeeded in its race. Now-a-days, even a common man and office-goersuse two wheeler. What was considered to be luxurious item is now an essential item of life. The same applies to four wheelers also. Nowvillages of our country are linked with roads and variety of four wheelersare introduced day in and day out. But unfortunately, Motor Vehicles Actdo not make it mandatory that the risk of the pillion riders and occupants of a car should be covered by the Insurance Policy. Since, the 'Act' do not provide for mandatory coverage, it is done by package policies. Evenwhen there are package policies, the Insurance Companies take a plea that they are not bound to pay the compensation. This appeal is one among them and the Insurance Company was successful in persuading the Tribunal to direct the vehicle owner to pay the compensation.

It should be mandatory to cover the risk not only the pillion riders and occupants of the car but also the owners of the two-wheelers and four-wheelers by way of necessary amendments to the concerned enactments. It is not like in the olden days that only affluent people would own four-wheelers. Now-a-days, we do not find parking space to park the fourwheelers and owners of car themselves drive the car and do not appoint https://hcservices.ecourts.gov.in/hcservices/ 2drivers. Thus the risk of the owners of two-wheelers and four-wheelersshould also be covered as they are also the road users.

In this case, the appellant was a pillion rider in the two-wheelerowned by the first respondent and the two wheeler was insured with the second respondent. Admittedly, a package policy was taken covering the risk of pillion rider. The two-wheeler involved in an accident on 12.07.2007and the appellant got grievous injuries on her left hand and was admitted as inpatient from 12.07.2007 to 17.07.2007 and underwent surgery. Steelplates were fixed in her hand. The age of the injured at the time of accident was 28 years. She suffered 21.6% of permanent partial disability. However, when she claimed compensation in M.C.O.P.No.666 of 2007 before the Motor Accidents Claims Tribunal, Kumbakonam, the Tribunal held that the second respondent is not liable to pay compensation, even when there was apackage policy. The plea of the second respondent was found acceptance to the Tribunal and the Tribunal directed the first respondent to pay compensation of Rs.88,531/- as compensation as follows: S.No.Description of headsAmount in Rs. 1 Disability compensation Rs. 42,000/- 2. Attendant charges Rs. 2,500/- 3. Medical billsRs. 25,031/- 4. Pain and sufferingRs. 15,000/- 5Extra nourishmentRs. 3,000/- 6Transport expenses 1,000/- 7TotalRs. 88,531/-Aggrieved over the same, the appellant has preferred the present appeal, questioning the correctness of the award of the Tribunal.

In the appeal, the appellant seeks to fasten the liability on the Insurance Company, besides seeking enhancement of compensation.

Heard the learned counsel appearing on either side.

The learned counsel for the second respondent fairly submits that after the judgement of the Delhi High Court in Yashpal Luthra and anothervs. United India Insurance Company Limited and others decided on 9.12.2009,the appellant/Insurance company issued a circular, dated 25.11.2009,advising all their officers to take steps to withdraw the appeals filed by the Insurance Company questioning the liability relating to pillion riders and the said circular is incorporated at Paragraph 25 of the aforesaid judgement of the Delhi High Court and the same is extracted hereunder: "25. Oriental Insurance Company Limited has also issued acircular, dated 25th November, 2009, to all their officers advising them as under: "We have received circular No.IRD.NL/CIR/F&U/073/11/2009,dated 16.11.2009 from IRDA whereby it is confirmed that insurers liability in respect of occupant carried in a private Car and https://hcservices.ecourts.gov.in/hcservices/ 3Pillion Rider carried on 2 wheeler is covered under the standardMotor Package Policy. IRDA has further confirmed that videvarious 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 the policy wording Section2.1.(1) are very clear and are reconfirmed by the IRDA Circular. It is, therefore, advised to immediately review all cases where appeal has been filed on the ground that Insurer is not liable for occupants of Private Cars and Pillion Rider in a 2-wheelerunder 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 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. "

The learned counsel for the second respondent fairly submits that the second respondent is only liable to pay compensation in the case of injury suffered by the appellant as per package policy. However, from the Judgement of the Delhi High Court, it could be seen that hundreds and thousands of cases relating to pillion riders and occupants of the car ispending in Tribunals, High Courts and Supreme Court, wherein, the Insurance Companies are questioning their liability. Paragraphs 29 and 35of the judgement of the Delhi High Court are extracted hereunder: "29. All Motor Accident Claims Tribunals functioning in the National Capital Territory of Delhi will take note and ensure that no such plea is allowed to be put forward by anyInsurance Company.35. Copy of this judgment be also sent to all MotorAccident Claims Tribunals in NCT of Delhi. "

The Delhi High Court directed the Motor Accident Claims Tribunalfunctioning in Delhi to ensure that no plea is put forward by the InsuranceCompany denying their liability in the case of package policy relating to pillion riders/occupants of the car. Considering the importance of the judgment, the Delhi High Court directed that a copy of the judgement besent to all the Motor Accident Claims Tribunal in NCT of Delhi.

Then, the issue is relating to the quantum payable to the appellant. The doctor who gave the disability Certificate was examined asP.W.2 before the Tribunal. He deposed categorically that the appellant suffered 21.6% permanent partial disability. However, the Tribunal only awarded Rs.42,000/- without applying the multiplier method as contemplated under Second Schedule of the Motor Vehicles Act. The Supreme Court has held in various decisions that the multiplier method has to be applied in injury cases for computing compensation. But the learned counsel for the Insurance Company seriously objects for applying the multiplier method in this case. The objection of the learned counsel for the Insurance Companyhas no merit. https://hcservices.ecourts.gov.in/hcservices/ 4 10. In this case, the appellant is a house wife. In the Judgement of the Division Bench in National Insurance Company .vs. 1. Minor Deepika, represented by her guardian and next friend Ranganathan 2.