Gopal Sarkar & Anr. v. Reliance General Insurance Co. Ltd. & Anr.

O R D E R That the application filed by the claimant- petitioners is hereby allowed ex parte against the O.P. No.1 and dismissed on contest against the O.P. No.2. The claimants, subject to payment of ad valorem Court fees, gets a compensation award to the extent of Rs.3,00,000/- along with interest @ 5% per annum as decided in the body of the judgment, to be paid through this Tribunal, within two months from the date of the 3 order by O.P. No.1, failing which the order shall be executable as per law‖.

#6. The appellants/claimants being aggrieved by the judgment and award passed by the learned Trial Court has come up with the instant appeal. The appellants have challenged the order of the learned Trial Judge on the ground that the quantum awarded is inadequate and secondly, the learned Trial Judge has directed the respondent No. 2-owner of the vehicle to pay the awarded sum instead of respondent No. 1/Reliance General Insurance Company Ltd.

#7. Learned advocate draws the attention the terms of the policy and submits that as it is a package policy and the passenger in a motorbike is not a gratuitous passenger but is a third party. Learned advocate also relies upon the decision of the Hon’ble Supreme Court in the case of: i) General Manager, United India Insurance Co. Ltd. Vs. M. Laxmi and Others reported in 2009 (1) T.A.C. 6 (S.C.). ii) Oriental Insurance Company Ltd. Vs. Surendra Nath Loomba and Others reported in 2013 (1) T.A.C. 15 (S.C.).

#8. It appears from the record that the policy of the vehicle owner was a package policy thus in this regard it is necessary to consider the decision of the Hon’ble Supreme Court in the case of Surendra Nath Loomba. The Hon’ble Supreme 4 Court in the said case was pleased to observe and direct as follows: ―8. Learned Counsel for the respondents would contend that whether the policy is an ―Act Policy‖ or a ―Comprehensive Package Policy‖ or whether any extra-premium was paid to cover the passenger, is not reflected from the Certificate of Insurance as the policy was not brought on record by tendering the same before the Tribunal. 9 In Tilak Singh (supra) this Court referred to the concurring opinion rendered in a three-Judges Bench decision in New India Assurance Co. Ltd. V. Asha Rani, (2003) 2 S.C.C. 223, and ruled thus: ―In our view, although the observations made in Asha Rani case were in connection with carrying passengers in a goods vehicle, the same would apply with equal force to gratuitous passengers in any other vehicle also. Thus, we must uphold the contention of the appellant Insurance Company that it owed no liability towards the injuries suffered by the deceased Rajinder Singh who was a pillion rider, as the insurance policy was a statutory policy, and hence it did not cover the risk of death of or bodily injury to a gratuitous passenger.‖

#9. In the case of M. Laxmi and Others the Hon’ble Supreme Court was pleased to observe and direct as follows: ―4. Learned Counsel for the appellant submitted that the High Court has misread the Circular of the Tariff Advisory Committee 5 dated 2nd June, 1986. The same referred to compensation payable to pillion riders in comprehensive policy. The Clarification/Circular has no relevance so far as Act Policy Cases are concerned and it relates to only Comprehensive Policy.

#5. Learned Counsel for respondent Nos. 1 to 3, on the other hand, supported judgment of the High Court.

#6. there is no dispute that the Circular dated 2nd June, 1986 refers to Comprehensive Policy. It categorically states that standard form for motorcycle should cover liability to pillion passengers in case of Comprehensive Policy. As noted by the MACT, the policy in the instant case was an Act Policy.

#7. In New India Assurance Co. Ltd. v. Asha Rani and others, 2003 (2) S.C.C. 223:2003 (1), it has been noted as follows: ―Section 147 of the 1988 Act, inter alia, prescribes compulsory coverage against the death of or bodily injury to any passenger of ―public service vehicle‖. Proviso appended thereto categorically states that compulsory coverage respect of drivers and conductors of public service vehicle and employees carried in a goods vehicle would limited liability under Workmen’s Compensation Act does not speak of any passenger in a ―goods carriage‖. In view of the changes in the relevant provisions in the 1988 Act vis-(cid:224)-vis the 1939 Act, we are of the opinion that the meaning of the words ―any person‖ must also be 6 attributed having regard to the context in which they have been used i.e. ―a third party’. Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle the insurers would not be liable therefor. Furthermore, sub-clause (i) of Clause (b) of sub-section (1) of Section 147 speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place, whereas sub-clause (ii) thereof deals with liability which may be incurred by the owner of a vehicle against the death or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place.‖.

#10. Learned advocate further refers to a judgment of learned Coordinate Bench of this Court where the learned judge was pleased to observe as follows: ―b) The Notification dated 22nd May 2018, issued under Section 163A(3) of the Act, revises the Second Schedule to enhance the quantum of compensation to Rs.5,00,000/- in death cases. The core issue is whether such enhancement can be retrospectively applied to a case where the accident occurred in 2004 — nearly 14 years prior to the notification. 7 The Notification itself is categorical in its language: "This notification shall come into force on the date of its publication in the Official Gazette." The Hon’ble Supreme Court in Pratap Narain Singh Deo v. Srinivas Sabata [(1976) 1 SCC 289] held in clear terms that the relevant date for determination of compensation is the date of the accident, and not the date of adjudication or decision. This cardinal principle has been uniformly followed across decades of jurisprudence and affirmed in several judgments. The issue of retrospective applicability of the 2018 Notification was directly addressed in Ramkhiladi & Anr. v. United India Insurance Co. Ltd. [AIR 2020 SC 527; 2020 (2) SCC 550]. The Hon’ble Apex Court in Paras 3.7, 4.4, 5.8, 7.1, and 9.8 held that the notification has only prospective effect, and cannot invoked determine compensation in cases where the accident occurred prior to its issuance. c) The reliance on the unreported decision of the Hon’ble Supreme Court in New India Assurance Co. Ltd. v. Urmila Halder [SLP (C) No. 6240 of 2019, disposed on 08.02.2024] — where retrospective application was seemingly approved — must be viewed with circumspection. This later decision did not notice or consider the binding coordinate Bench judgment in Ramkhiladi (supra), nor did it consider the Four-Judge Bench ruling in Pratap Narain 8 Singh Deo (supra). As such, per the doctrine of per incuriam, a decision rendered in ignorance of a binding precedent is not good law. In this context, the following decisions affirm the principles governing precedential hierarchy: . State of Bihar v. Kalika Kuer [(2003) 5 SCC 448] – A coordinate bench must follow earlier decisions or refer the matter to a larger bench. . National Insurance Co. Ltd. v. Pranay Sethi