Judgment:
1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :JUDGMENT
: S.B.CIVIL MISC.
APPEAL NO.1757/2013 Manager, M/s J.Trust Gramin Vikas Yojna, Jodhpur versus ICICI Lombard General Ins.
Co.LTD.& Anr.
Date of Judgment :: 9.1.2014 PRESENT HON'BLE Mr.JUSTICE ARUN BHANSALI Mr.Anil Bhandari, for the appellant/s.
Mr.Vinay Kothari, for the respondent/s.
---- BY THE COURT: REPORTABLE This appeal is directed against the judgment and award dated 15.12.2012 passed by Motor Accident Claims Tribunal (I).Jodhpur ('the Tribunal').whereby for the death of one Annaram, the Tribunal has awarded a sum of Rs.2,92,500/- alongwith interest @ 8.5% p.a.from the date of application i.e.26.11.2009 and the Insurance Company has been exonerated from liability to pay the compensation.
The facts in brief may be noticed thus : the application under Section 163A of the Motor Vehicles Act, 1988 ('the Act') was filed by Smt.
Antri Devi, mother of the deceased Annaram with the averments that on 20.8.2009, the deceased was riding on motor-cycle RJ-19-SL-1039 when the same collided with a truck resulting in fatal injuries to the said Annaram.
It was 2 claimed that the deceased was aged 23 years had a valid driving licence and while working as a driver, he used to earned Rs.40,000/- annually.
A reply to the application was filed by the appellant, owner of the motor-cycle disputing its liability to pay compensation as no accident had occurred from the said motor-cycle.
The insurer also filed its reply and denied most of the allegations, it was contended that the deceased cannot be termed as third party so as to saddle the Insurance Company with the liability to pay the compensation.
The Tribunal framed four issues.
On behalf of the claimant, claimant Smt.
Antri Devi was examined and 16 documents were exhibited.
On behalf of the Insurer, one Shri Manibhushan Singh appeared in the witness- box and policy (Ex.-A/1) was exhibited.
After hearing the parties, the Tribunal came to the conclusion that the accident occurred by use of motor-cycle RJ.19-SL-1039, which resulted in death of Annaram.
While considering the issue relating to liability of Insurance Company, the Tribunal came to the conclusion that the policy-in- question was 'act only policy' and no premium was charged by the Insurance Company and therefore, the Insurance Company was not liable to make payment of compensation.
The Tribunal observed that the Insurance Company has not charged any premium for the employee and as the deceased was not a third party, Insurance Company was not liable to make payment of compensation.
The Tribunal assessed the compensation at Rs.2,92,500/- and awarded interest as noticed hereinbefore.
3 It is submitted by learned counsel for the appellant that the finding recorded by the Tribunal on issue No.2 relating to the liability of the Insurance Company is ex-facie incorrect.
It was submitted that a bare look at the policy (Ex.-A/1) would indicate that the same was package policy and as such, the exoneration of the Insurance Company by treating the policy as 'act only policy' is on its face incorrect and as such, the finding recorded by the Tribunal exonerating the Insurance Company deserves to be set-aside.
In the alternative, it was submitted that even if the policy is 'act only policy', still the Insurance Company was required to satisfy the award to the extent required under Section 147(2) of the Act as laid down by the Hon'ble Supreme Court in National Insurance Company Limited v.
Prembai Patel & ORS.: 2005 ACJ1323and Andhra Pradesh High Court in National Insurance Company Limited v.D.Sivasankar and Anr.
: 2007 ACJ291 Per contra, learned counsel appearing for the respondent- Insurance Company supported the award impugned.
It was submitted that from the policy (Ex.-A/1).it is apparent that the same was act only policy and therefore, the liability of the deceased was not covered as he was not a third party.
Reliance was placed on judgments of the Hon'ble Supreme Court in the case of Ningamma & Anr.v.United India Insurance Company Limited : (2009) 13 SCC710and New India Assurance Company Limited v.
Sadanand Mukhi & ORS.: (2009) 2 SCC417 A bare look at the policy (Ex.-A/1) indicates that the insurer has issued the Two Wheeler Certificate-cum-Policy 4 Schedule to the insured J.Trust Gram Vikas Yojna for the period 9.11.2008 to 8.11.2009.
Under the columns relating to the premium charged it charged premium under the heading A.
Own Damage Premium Computation (Section I) at Rs.472/- and, B.
Liability Premium Computation (Section II) at Rs.350/- and charged service tax and gross premium at Rs.925/-.
The policy provided the following limit of liability : “Limit of Liability: Limit of the amount of the Company's liability under the Section II-1(i) in respect of any one accident as per M.V.Act 1988.
Limit of the amount of the Company's liability under Section II-1(ii) in respect of any one claim or series of claims arising out of one event : Upto Rs.100000/-”.
In view of the fact that the document Ex.-A/1 appared to be a summary of the policy conditions, this Court by order dated 25.11.2013 directed the respondent No.1 – Insurance Company to produce the conditions as attached with the certificate-cum- policy produced as Ex.-A/1.
In pursuance thereof, learned counsel has produced the document said to be the entire policy, however, from the document produced, it is noticed that the same is not different from Ex.-A/1 so far as the conditions of the policy are concerned.
In view of the fact that the Tribunal has found said policy as 'act only policy' and the claim of the appellant is that the same is a package policy, the nature of the policy as noticed hereinbefore needs to be examined.
The Indian Motor Tariff ('IMT') contains Rules, Regulations, Rates, Advantages, Terms & Conditions for transaction of Motor Insurance in India in accordance with the provisions of Part II B5of the Insurance Act, 1938 as laid down by the Tariff Advisory Committee and the provisions of the Tariff are binding on all concerned, the IMT describes vide General Regulations (GR) 3 'Policy Forms', which reads as under :- “GR.3.
Policy ForMs.Policies insuring Motor Vehicles are to be issued only as per the Standard Form(s) given in Section 6 of the INDIA MOTOR TARIFF.A.Types of Policies There are two types of Policies : (i) Liability Only Policy : This covers Third Party Liability for bodily injury and/or death and Property Damage.
Personal Accident Cover for Owner- Driver is also included.
(ii) Package Policy : This covers loss or damage to the vehicle insured in addition to (i) above.
Restricting the scope of cover under Section-I (loss of or damage to the vehicle insured) of the Package policy without any reduction in Tariff rates is permitted.
Excepting this, no alteration or extension of any of the CoveRs.TerMs.Conditions, Exclusions, etc.of any of the Policies / Endorsements laid down in this tariff is permitted without prior approval of the TAC.”
.
A bare reading of the said GR.3 indicates that the policy which covers loss or damage to the vehicle insured, in addition to the 'liability only policy' is described as 'package policy'.
Section-II, which has been referred to in the policy under 'Limit of Liability' (supra).which is a part of 'Standard Form for Two Wheeler Package Policy' in the IMT, reads as under:- “SECTION II- LIABILITY TO THIRD PARTIES1 Subject to the limits of liability as laid down in the Schedule hereto the Company will indemnify the insured in the event of an accident caused by or arising out of the use of the insured vehicle against all sums which the insured shall become legally liable to pay in respect of i) death of or bodily injury to any person including occupants carried in the insured vehicle (provided such occupants are not carried for hire or reward) but except so far as it is necessary to meet the requirements of Motor Vehicles Act, the Company shall not be liable where such death or injury arises out of and in the couRs.of the employment of such 6 person by the insured, ii).damage to property other than property belonging to the insured or held in trust or in the custody or control of the insured.”
.
From reading of the above GR.3 alongwith Section II-1(i) of the IMT, it is apparent that a package policy is distinguished from liability only policy (act only policy) on account of the fact that it covers loss or damage to the vehicle insured, in addition to the liability under the Act.
In the present case as noticed above, the respondent – Insurance Company has charged a sum of Rs.472/- under Table- A- Own Damage Premium Computation and therefore, the policy-in-question is, in fact, a package policy only and the finding recorded by the Tribunal that the policy-in-question (Ex.- A/1) was 'act only policy' has no basis and consequently, the finding recorded by the Tribunal is set-aside and it is held that the Insurance Company is liable for making payment of the compensation.
Once the finding in this regard is arrived at regarding the policy being package policy, the issue raised by learned counsel for the appellant regarding the quantum of liability under Section 147 of the Act in case of 'act only policy' based on judgments in the case of Prembai Patel and D.
Sivasankar (supra) does not require any further consideration.
The judgments cited by learned counsel for the respondent-Insurance Company in the case of Sadanand Mukhi & ORS.and Ningamma & Anr.
(supra) also dealt with a case of 'act only policy' and as such, the same have no application to the 7 present case.
So far as maintainability of claim under Section 163A of the Act is concerned, the Hon'ble Supreme Court in the case of Ningamma (supra).while discussing a case of a person, who had borrowed the vehicle from the real owner and was held to have stepped into the shoes of the owner, in para 21 of the said judgment distinguished the position of that of a owner from that of an employee of the owner, for the purpose of award of compensation under Section 163A of the Act and the liability of the Insurance Company and as the borrower / owner was involved in the said case, the liability / maintainability was declined.
Paras 21 & 22 in the case of Ningamma (supra) reads as under:- “21.
In our considered opinion, the ratio of the decision in Oriental Insurance Co.LTD.case is clearly applicable to the facts of the present case.
In the present case, the deceased was not the owner of the motorbike in question.
He borrowed the said motorbike from its real owner.
The deceased cannot be held to be an employee of the owner of the motorbike although he was authorised to drive the said vehicle by its owner and, therefore, he would step into the shoes of the owner of the motorbike.
We have already extracted Section 163-A of the MVA hereinbefore.
A bare perusal of the said provision would make it explicitly clear that persons like the deceased in the present case would step into the shoes of the owner of the vehicle.
22.
In a case wherein the victim died or where he was permanently disabled due to an accident arising out of the aforesaid motor vehicle in that event the liability to make payment of the compensation is on the insurance company or the owner, as the case may be as provided under Section 163-A.
But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to pay the same is on him.
This proposition is absolutely clear on a reading of Section 163-A of the MVA.
Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under Section 163-A of the MVA.”
.
(emphasis supplied) 8 Admittedly, in the present case the insured, owner of the vehicle is J.Trust Gramin Vikas Yojna, which is a charitable trust and the deceased was employee of the said trust.
The observations made by the Tribunal that the Insurance Company has not charged any premium for the employee appears to be misplaced in the present case, inasmuch as, the vehicle is owned and insured in the name of public charitable trust and therefore, under the instructions of the said institution, it is the employee only, who would ride the said vehicle as the institution being a legal person cannot drive the said vehicle.
In that view of the matter, as the employee of the owner is involved in the present case, the maintainability of the petition under Section 163A of the Act and consequential liability of the Insurance Company cannot be disputed.
In view of the above discussion, the appeal filed by the appellant is allowed.
The judgment and award dated 15.12.2012 passed by the Tribunal is modified to the extent that alongwith the appellant, the respondent-Insurance Company also would be liable to make payment of the compensation as awarded by the Tribunal.
No costs.
(ARUN BHANSALI).J.
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