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THE HIGH COURT OF SIKKIM : GANGTOK (Civil Appellate Jurisdiction) DATED : 02-08-2013 CORAM HON’BLE MR. JUSTICE S. P. WANGDI, JUDGE MAC App. No.01 of 2013 The Branch Manager, National Insurance Company Limited, Opposite Tourism Department, 31-A National Highway, P.O. & P.S. Gangtok, East Sikkim. … Appellant Versus 1. Master Suraj Subba, S/o Late Birkha Bahadur Subba, R/o Tambutaar, Saramsa, P.O. & P.S. Ranipool, East Sikkim Represented by Shri Suk Dhoj Subba, S/o Late Izam Subba, R/o Karthok, P.O. & P.S. Pakyong, East Sikkim. … Respondent/Claimant 2. Smt. Suk Rani Subba, W/o Late Birkha Bahadur Subba, R/o Tambutaar, Saramsa, P.O. & P.S. Ranipool, East Sikkim (owner of vehicle SK-02/9434) … Respondent/Owner MAC App. No.01 of 2013 2 For Appellant : Mr. Thupden G. Bhutia, Advocate. For Respondent No.1 : Mr. N. Rai, Senior Advocate with Mr. K. B. Chettri, Mr. Jeewan Kharka and Mr. Sushant Subba, Advocates. For Respondents No.2 : Mr. S. P. Bhutia, Advocate. J U D G M E N T (ORAL) Wangdi, J. This Appeal arises out of the impugned judgment of the Learned Member, Motor Accident Claims Tribunal, East and North Sikkim at Gangtok dated 28-09- 2012 in M.A.C.T. Case No.21 of 2010, by which in a Claim Petition under Section 166 of the Motor Vehicles Act, 1988 (in short the “Act”), death compensation amounting to Rs.38,44,780/- was awarded in favour of the Respondents with interest calculated @ 10% on the said amount from the date of the filing of the Claim Petition, i.e., 18-08- 2010. 2. The brief facts of the case leading to the filing of the Claim is that the father of the Respondent No.1, the Claimant in the original Claim Petition, who was employed as a Range Officer, NTFP/SMPB Division, Forests, Environment and Wildlife Management Department, MAC App. No.01 of 2013 3 Government of Sikkim, died in a motor vehicle accident on 07-07-2010 involving a Maruti Car bearing No.SK-02/9434 owned by the Respondent No.2, the mother of the Claimant-Respondent No.1 and the wife of the deceased. 3. In the original Petition, the Respondent No.2, the mother, was impleaded as Opposite Party No.1 and the Appellant-Insurance Company as Opposite Party No.2. The Claim Petition was resisted by the Appellant primarily on the ground that the deceased being the husband of the Respondent No.2, the owner of the accident vehicle, did not fall within the meaning of “third party” as contemplated under Section 165 of the Act and, therefore, was not covered under the Insurance Policy. Further, the Claimant-Respondent No.1 as the son of the Respondent No.2, the owner of the vehicle, would be a deemed insured and thus a “second party” to the Insurance Policy. As such, the Tribunal lacked the necessary jurisdiction to entertain the Claim made by such a party. 4. The Learned Claims Tribunal upon consideration of the pleadings, the evidence and the records and also the law obtaining in such cases rejected the contentions raised on behalf of the Appellant and passed an award of MAC App. No.01 of 2013 4 Rs.38,44,780.00 in favour of the Claimant-Respondent No.1 by the impugned judgment. 5. In the Appeal, the Appellant-Insurance Company apart from raising the very same objections as grounds of Appeal against the impugned judgment, has taken an additional ground that the Claim having been switched from one under Section 163A to Section 166 of the Act, it was mandatory on the part of the Claimant to have proved negligence that resulted in the accident in which the deceased died. These facts are sufficient to dispose of the Appeal. It is, however, relevant to note that the present Appeal is the second round of litigation between the parties before
Legal Reasoning
this Court involving the very same accident. 6. In the first round, the Appeal filed by the Respondent No.1 against rejection of his Claim Petition by the Learned Claims Tribunal had been disposed of by this Court’s Order dated 26-04-2012 by which the case was remanded back with a direction to consider the case de novo in view of an application for amendment of the original Claim Petition preferred by the Appellant and also because of this Court having found the report of the Motor MAC App. No.01 of 2013 5 Vehicle Inspector, a vital document that would have a direct bearing on the outcome of the Claim Petition filed with the memo of Appeal, was not before the Learned Claims Tribunal when the impugned judgment was passed. The Learned Claims Tribunal by the impugned judgment, having concluded the proceedings on the Claim Petition de novo in compliance to the aforesaid Order of this Court, the present Appeal has now come up for consideration by this Court. 7(i). Mr. Thupden G. Bhutia, Learned Counsel, appearing on behalf of the Appellant, submits that in view of the decision of the Hon’ble Supreme Court in New India Assurance Company Limited vs. Sadanand Mukhi and Others : (2009) 2 SCC 417 and Ningamma and Another vs. United India Insurance Company Limited : (2009) 13 SCC 710, the deceased did not fall within the meaning of third party and, therefore, the finding on this by the Learned Claims Tribunal was grossly erroneous and the compensation awarded in consideration of that was unsustainable. It is stated that the deceased was neither a passenger in the ill-fated vehicle nor was he a pedestrian on the road but was rather driving the vehicle MAC App. No.01 of 2013 6 at the time of the accident. It was then contended that it was impermissible for the Claimant-Respondent No.1 to have switched his Claim from one under Section 163A to Section 166 of the Act. The Claim under Section 163A in any case was not maintainable as the income of the deceased at the time of his death was revealed as being more than Rs.40,000/- annually. That the Learned Claims Tribunal erred in applying Second Schedule to the Act for calculating the death compensation for a Claim switched to Section 166 when the said Schedule applies only to a Claim under Section 163A. (ii). It was then submitted that the principle adopted in arriving at a “just” compensation by the Learned Claims Tribunal was grossly erroneous and impermissible under the law. As per him the finding was per incuriam the ratio laid down in the cases cited by him. It was then submitted that the Claimant-Respondent No.1 being the legal heir of the ‘insured’, who is the Respondent No.2 in the Appeal, is to be deemed a “second party” to the Insurance Policy and as such, the Learned Claims Tribunal committed a grave error by awarding compensation in his favour. MAC App. No.01 of 2013 7 8(i). Mr. N. Rai, Learned Senior Counsel, appearing on behalf of the Respondents, on the other hand, would submit that the Learned Claims Tribunal had committed no error and that the ground set out for assailing the impugned judgment cannot be sustained in view of the well-settled principles of law and the various decisions on the question of both this Court and the Apex Court. (ii). On the first contention, it is the submission of Mr. Rai that in The Branch Manager, New India Assurance Company Ltd., Gangtok vs. Smt. Jasu Subba and Others : AIR 2011 Sikkim 37 the very question has been considered in depth by this Court and has arrived at a finding that the driver means any person including the ‘insured’ would be covered in the kind of Insurance Policy as the one in the present case. That the Insurance Policy involved in the case at hand, as per the Learned Counsel, is a ‘Package Policy’ and not an ‘Act Policy’. Reference in this regard was also made to Senior Branch Manager, National Insurance Co. Ltd., Gangtok vs. Smt. Namita Dixit and Others : AIR 2010 Sikkim 50. It is then submitted that by virtue of the law laid down in the case of Amrit Lal Sood and Another vs. Kaushalya Devi MAC App. No.01 of 2013 8 Thapar and Others : (1998) 3 SCC 744, the expression “any person” appearing in the policy would include an occupant of a Car who is gratuitously travelling. (iii). On the scope of an ‘Act Policy’, ‘Comprehensive Policy’ or ‘Package Policy’, Mr. Rai drew the attention of this Court to National Insurance Company Limited vs. Balakrishnan and Another : (2013) 1 SCC 731. He went on to submit that in view of the change in law resulting from the introduction of the new Section 147 in the Act the objection raised on behalf of the Appellant as regards the meaning of “third party” would pale into insignificance. 9. I have considered the rival contentions of the Learned Counsels and upon consideration of the pleadings and the records available, I am inclined to agree with the submissions made by Mr. Rai. The decision in Smt. Jasu Subba (supra) is comprehensive and has dealt with in great detail the first question raised on behalf of the Appellant. In that judgment rendered by this very Court (Wangdi, J.), upon consideration of the nature of the Insurance Policy which was identical to the one under consideration in the present Appeal, the provisions of India MAC App. No.01 of 2013 9 Motor Tariff and cognate Rules, it was concluded as under:- for Tariff “9. On a perusal of the India Motor Tariff (IMT) prescribed by the Tariff Advisory Committee in exercise of its powers u/S. 64UC of the Insurance Act, 1938, it is found that Section 4 thereof provides for regulation for Commercial Vehicles. Regulation 12B falling thereunder provides for “Guide to Completion of Policy Schedules and Certificate of Insurance”. Under the head “Certificate of Insurance and Policy Schedule Wording Regarding “Limitations As to Use: for Use in Package Policy And Liability Only Policy Forms”, we find Clause D inserted provides for “Vehicles for Hire” which contains several paragraphs from amongst which we are concerned only with paragraph (vii) providing for “Certificate of Insurance and Policy Schedule Wording Regarding “Driver” for use in Package Policy and Liability only Policy Forms. “Driver” has been defined in the table provided thereunder which reads as follows :- “Driver : Persons or classes of persons entitled to drive: Stage Carriage/Contract Carriage/Private Service Vehicle Any person including insured : (underlining supplied ) Provided that a person driving holds an effective driving license at the time of the accident and is not disqualified from holding or obtaining such a license. Provided also that the person holding an effective Learner’s License may also drive the vehicle when not used for the transport of passengers at the time of accident and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989. 10. It becomes quite clear from the above entry that in respect of stage carriage/contract carriage/ private service vehicle, “driver” means any person including “insured” with the only condition being that such person should hold to effective driving license at the time of the accident and is not disqualified from holding or obtaining such a license. This, therefore, is consistent with the case of the respondents/claimants that the driver owner is fully covered. Any other view would be inconsistent with the object of the Motor Vehicles Act, 1988 and, therefore, unacceptable. It is also not the case of the appellant that the insured who was the owner driver, did not hold a valid driving license at the time of the accident. It is well settled that law does not restrict or prohibit the insured and the insurer from entering into a special contract, providing larger coverage of risk on payment of special or higher premium. We may usefully refer to the case of National Insurance Assurance Company Ltd. v. C. M. MAC App. No.01 of 2013 10