R IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE22D DAY OF DECEMBER, 2020 BEFORE THE HON’BLE MR.JUSTICE HANCHATE SANJEEVKUMAR MFA NO.31781/2010 C/W MFA NOS.31782/2010, 30418/2011, 30649/2011, 31036/2011, 31128/2011, 31393/2011 & 32463/2012; MFA NO.31842/2012 C/W MFA NOS. 31844/2012 & 31881/2012; MFA NO.30659/2013 C/W MFA NOS.30656/2013, 30657/2013 & MFA NO.30658/2013; MFA NO.30904/2012; MFA NO.32191/2012; MFA NO.200224/2019; MFA NO.200225/2019; MFA NO.32243/2012 & MFA NO.31685/2012 (MV) IN MFA No.31781/2010: Between: Divisional Manager, United India Insurance Co. Ltd., Divisional Office, P.B. No.47, Dr. Jawali Complex, Ist Floor, Super Market, Gulbarga. … Appellant (By Sri. Shivanand Patil, Advocate) And:
1. Shamaraya S/o Basanna Kattimani Age:
42. Years, Occ: Coolie, 2 R/o Udagi, Tq. Sedam, Dist. Gulbarga.
2. Gousuddin S/o Ameerudin, Age:
30. Years, Occ: Driver, R/o H.No.11-104/66, MSK Mills, Jeelanabad, Gulbarga.
3. The President Gurudev Education Society Khanta Layout, Afzalpur Road, Gulbarga.
4. Dinesh M. Naik S/o M. Naik Age:
42. Years, Occ: Business, R/o #6, Leo Lond Building A Captain Prakash Patel Marg Coloba, Mumbai-400 005. … Respondents (Notice to R-2 are served; Vide order dated 08.11.2016, notice to R-3 is accepted, vide order dated 09.12.2016, notice to R-4 is held sufficient, Sri. Harshavardhan R. Malipatil, Advocate is appointed as Amicus Curiae for R-1) This MFA is filed under Section 173(1) of MV Act, against the judgment and award dated 24.02.2010 passed in MVC No.904/2006 on the file of the III Addl. Civil Judge (Sr. Dn.) and MACT, Gulbarga, partly allowing the claim petition and awarding compensation of Rs.2,19,200/- with interest at 6% p.a. 3 IN MFA No.31782/2010: Between: Divisional Manager, United India Insurance Co. Ltd., Divisional Office, P.B. No.47, Dr.Jawali Complex, Ist Floor, Super Market, Gulbarga. … Appellant (By Sri. Shivanand Patil, Advocate) And:
1. Devindrappa S/o Gurulingappa Kattimani, Age:
35. Years, Occ: Coolie, R/o Udagi, Tq. Sedam, Dist. Gulbarga.
2. Gousuddin S/o Ameerudin, Age:
30. Years, Occ: Driver, R/o H.No.11-104/66, MSK Mills, Jeelanabad, Gulbarga.
3. The President, Gurudev Education Society Khanta Layout, Afzalpur Road, Gulbarga.
4. Dinesh M. Naik S/o M. Naik Age:
42. Years, Occ: Business, R/o #6, Leo Lond Building A Captain Prakash Patel Marg Coloba, Mumbai-400 005. … Respondents (Vide order dated 28.09.2015 notice to R-2 to R-4 are held sufficient; 4 Sri. Harshavardhan R. Malipatil, Advocate is appointed as Amicus Curiae for R-1) This MFA is filed under Section 173(1) of MV Act, against the judgment and award dated 24.02.2010 passed in MVC No.972/2006 on the file of the III Addl. Civil Judge (Sr. Dn.) and MACT at Gulbarga, partly allowing the claim petition and awarding the compensation of Rs.58,800/- with interest at 6% p.a. IN MFA No.30418/2011: Between: The Branch Manager, United India Insurance Co. Ltd., Raichur. Represented by its Asst. Manager, Raichur. … Appellant (By Sri. S.S.Aspalli, Advocate) And:
1. Abdul Azeez S/o Abdul Hai Age:
50. Years, Occ: Employee in Farook Anwar Co., Working as Security Guard.
2. Smt. Azamathunnisa W/o Abdul Azeez Age:
40. Years, Occ: Household, Both R/o H.No.-5-1-123/3, Station Area, Raichur.
3. Fazal Ahmed Fahad S/o Abdul Azeez Age: Major, Occ: Student, 5 R/o H.No.1-5-103, Station Area, IB Road, Raichur. … Respondents (By Sri. B.R.Math, Advocate for R-1 & R-2; Sri. R.S.Siddapurkar, Advocate for R-3) This MFA is filed under Section 173(1) of MV Act against the Judgment and award dated 27.11.2010 passed in MVC No.331/2010 on the file of the MACT and Fast Track Court-I at Raichur, partly allowing the claim petition and awarding compensation of Rs.4,62,000/- with interest at 6% p.a. IN MFA No.30649/2011: Between: The Divisional Manager The National Insurance Company Limited, Divisional Office, P.B. No.88, Bilgundi Complex, Station Road, Gulbarga. … Appellant (By Sri. R.V.Nadagouda, Advocate) And:
1. Anil Kumar S/o Vinod Rajput Age:
39. Years, Occ: R.M.P. Doctor, R/o Khatak Chincholi, Bhalki Now R/o Suryodaya Colony, Basavakalyan, Dist. Bidar.
2. Shivakumar S/o Sangshetty Chilleti, Age: Major, Occ: Business and Owner of Maruti Omni Car KA-32/M-2222, 6 R/o Khatak Chincholi, Tq. Bhalki, Dist. Bidar. … Respondents (By Sri. Sanjeev Kumar C. Patil, Advocate for C/R-1; Vide Order dated 17.08.2016, notice to R-2 is held sufficient) This MFA is filed under Section 173(1) of MV Act against the Judgment and Award dated 20.07.2010 passed in MVC No.170/2007 on the file of the Court of Civil Judge (Sr. Dn.) and Addl. MACT at Basavakalyan partly allowing the claim petition and awarding compensation Rs.4,26,400/- with interest at 6% p.a. IN MFA No.31036/2011: Between:
1. Tarabai W/o Tirupati Naik Age:
23. Years, Occ: H.H.Work, R/o Uppaldinni LT, Tq. Shorapur, Dist. Yadgir.
2. Shantabai W/o Ratnappa Naik, Age:
44. Years, Occ: H.H.Work, 3. Ratnappa S/o Shivappa Naik Age:
48. Years, Occ: Coolie, Petitioners No.2 and 3 R/o Nagbenal LT, Tq. Muddebihal. … Appellants (By Sri. Harshavardhan R. Malipatil, Advocate) 7 And:
1. Someshekhar S/o Dodda Ayyalappa Age:
48. Years, Occ: Business, R/o Balashettihal Tq. Shorapur, Dist. Yadgir.
2. The Divisional Manager, National Insurance Co. Ltd., Ramdev Galli, Belgaum. … Respondents (By Sri. G.B.Yadav, Advocate for R-1 Sri. Sudarshan M., Advocate for R-2) This MFA is filed under Section 173(1) of MV Act against the Judgment and Award dated 12.01.2011 passed in MVC No.161/2008 on the file of the Accident Claims Tribunal No.VIII at Muddebihal, partly allowing the claim petition and seeking enhancement of compensation. IN MFA No.31128/2011: Between: The Manager, The National Insurance Co. Ltd., Pattanchur Tq. and Dist. Medak, Through Divisional Manager, National Insurance Co. Ltd., Opp. Mini Vidhana Soudha, Gulbarga. … Appellant (By Sri. S.S.Aspalli, Advocate) 8 And:
1. Shaik Haleema Bee W/o Late Shaik Babu, Age:
43. Years, Occ: Household, 2. Shaik Mohammed S/o Late Shaik Babu, Age:
21. Years, Occ: un-employed, 3. Shaik Irfan S/o Late Shaik Babu, Age:
17. Years (Minor) Occ: Un-employed 4. Shaik Afridi S/o Late Shaik Babu Age:
11. Years (Minor) 5. Shaik Rukhiyya D/o Late Shaik Babu Age:
15. Minor. Petitioner No.3 to 5 are minors U/G Real mother Petitioner No.1 All R/o Proper Town Bhalki, Tq. Bhalki, District: Bidar.
6. Mohd Sardar S/o Aziz Miyan Age: Major, Occ: Business and Owner of Jeep Bearing Regn. No.KA-23/M-2993, R/o Methi Melkunda Tq. Bhalki, Dist. Bidar.
7. Vaijinath S/o Veershetty Age:
32. Years, Occ: Driver R/o Teen Dhukan Galli, Old Town Bhalki, Dist. Bidar. … Respondents (By Sri. Ustad Sadat Hussain and 9 Sri. Shivasharana Reddy, Advocate for R-1 & R-2; Sri. S.K. Kankatte, Advocate for R-1 & R-2; R-3 to R-5 are minors rept. by R-1; Sri. Babu H.Metagudda, Advocate for R-6, Notice to R-7 is served but unrepresented) This MFA is filed under Section 173(1) of MV Act praying to set aside the Judgment and Award dated 26.06.2010 passed in MVC No.173/2008 on the file of the Presiding Officer, F.T.C-II at Bidar, (Sitting at Bhalki), by allowing the appeal. IN MFA No.31393/2012: Between: Umalu @ Umaji S/o Thavaru Rathod Aged:
68. Years, Occ: Coolie, R/o Hitnalli Tanda, Tq: Sindagi, Dist: Bijapur. … Appellant (By Sri. Sanganabasava B. Patil, Advocate) And:
1. Bhimasing S/o Bhiku Rathod Age: Major, Occ: Business, R/o Hitnalli Tanda, Tq: Sindagi, Dist: Bijapur.
2. The Branch Manager, The New India Assurance Co. Ltd., Hanamashetti Building, Gurukul Road, Bijapur.
3. Rajashekhar Peerappa Logavi, Aged: Major, Occ: Business, A/P Jambargi (A), Tq: & Dist: Bijapur. … Respondents 10 (By Sri. G.G.Chagashetty, Advocate for R-3; R-1 is served but unrepresented; Sri. Sanjay M.Joshi, Advocate for R-2) This MFA is filed under Section 173(1) of MV Act against the Judgment and Award dated 09.01.2012 passed in MVC No.1829/2009 on the file of the MACT and Fast Track Court-I/II at Bijapur, partly allowing the claim petition and seeking for enhancement of compensation. IN MFA No.32463/2012: Between: United India Insurance Company Ltd., Through its Division Officer, Post Box No.47, Super Market, Dr. Jawali Complex, Gulbarga. … Appellant (By Smt. Anuradha M. Desai, Advocate) And:
1. Sharanagouda S/o Veergouda Age:
45. Years, Occupation: Business and owner of Vehicle, R/o Gundur , PO: Gangavati, Tq. & Dist. Koppal-583 227.
2. Padma W/o Shivaji Biradar, Aged:
40. Years, Occ: Household, R/o Jalsingi, Tq. Humnabad-585 401.
3. Sonu S/o Shivaji Biradar Age:
19. Years, Minor, U/g of petitioner No.1 11 R/o Jalsingi, Tq. Humnabad-585 401.
4. Rekha D/o Shivaji Biradar U/g of Petitioner No.1 R/o Jalsingi, Tq. Humnabad-585 401.
5. Rupali D/o Shivaji Biradar, U/g of Petitioner No.1 R/o Jalsingi, Tq. Humnabad-585 401.
6. Pandurang S/o Govindarao Biradar Age:
67. Years, Occ: Household R/o Jalsingi, Tq. Humnabad-585 401.
7. Tanabai W/o Pandurang Biradar Age:
65. Years, Occ: Household R/o Jalsingi, Tq. Humnabad-585 401. … Respondents (By Sri. Basavaraj R. Math, Advocate for R-2 to R-7; R-4 and R-5 are minors, Vide order dated 29.11.2018, Notice to R-1 is held sufficient) This MFA is filed under Section 173(1) of MV Act against the Judgment and Award dated 22.08.2012 passed in MVC No.14/2011 on the file of the Senior Civil Judge and MACT, at Humnabad, partly allowing the claim petition and awarding compensation of Rs.4,88,000/- with interest at 6% p.a. IN MFA No.31842/2012: Between: The Branch Manager, The New India Assurance Co. Ltd., Bijapur, Policy No.151300/31/04/ 12 03493, valid from 28.07.2004 to 27.07.2005. (now, represented through its Asst. Manager) … Appellant (By Smt. Preeti Patil Melkundi, Advocate) And:
1. Riyaz S/o Chand Mahammad Shaikh, Age:
33. Years, Occ: Electrician R/o: Shaikh Colony, Bijapur.
2. Nisar Ahmad S/o Kashimali Shaikh, Aged:
43. Years, Occ: Business, R/o:
356. Begum Peth, Solapur. (Owner as per R.C.Book).
3. Sardar M. Inamadar, Aged: Major, Occ: Business, A/P: Arali, Tq: Mangalweda, Dist. Solapur. (Owner as per Insurance Policy) … Respondents (R-1 and R-3 are served; vide Order dated 06.12.2018 notice to R-2 is dispensed with) This MFA is filed under Section 173(1) of MV Act, against the judgment and award dated 09.04.2012 passed in MVC No.1596/2009 on the file of the Motor Accident Claims Tribunal and Fast Track Court-I/II, Bijapur, partly allowing the claim petition and awarding compensation of Rs.12,000/- with interest at 6% p.a. 13 IN MFA No.31844/2012: Between: The Branch Manager, The New India Assurance Co. Ltd., Bijapur, Policy No.151300/31/04/ 03493, valid from 28.07.2004 to 27.07.2005. (now, represented through its Asst. Manager) … Appellant (By Smt. Preeti Patil Melkundi, Advocate) And:
1. Nasreen W/o Jeelani Shaikh, Age:
37. Years, Occ: Beedi Binding work, R/o: Shaikh Colony, Bijapur.
2. Nisar Ahmad S/o Kashimali Shaikh, Aged:
43. Years, Occ: Business, R/o:
356. Begum Peth, Solapur. (Owner as per R.C.Book).
3. Sardar M. Inamadar, Aged: Major, Occ: Business, A/P: Arali, Tq: Mangalweda, Dist. Solapur. (Owner as per Insurance Policy) … Respondents (R-1 and R-3 are served, Vide order dated 17.04.18, notice to R-2 is dispensed with.) This MFA is filed under Section 173(1) of MV Act, against the judgment and award dated 09.04.2012 passed 14 in MVC No.1600/2009 on the file of the Motor Accident Claims Tribunal and Fast Track Court-I/II, Bijapur, partly allowing the claim petition and awarding compensation of Rs.12,000/- with interest at 6% p.a. IN MFA No.31881/2012: Between: The Branch Manager, The New India Assurance Co. Ltd., Bijapur, Policy No.151300/31/04/ 03493, valid from 28.07.2004 to 27.07.2005. (now, represented through its Asst. Divisional Manager) … Appellant (By Smt. Preeti Patil Melkundi, Advocate) And:
1. Mukhtar Begum W/o Kashim Ali, Age:
73. Years, Occ: Nil, 2. Asoua W/o Mohammed Gous Shaikh, Aged:
28. Years, Occ: Household Work, Both R/o: Shaikh Colony, Bijapur-586 101. (Owner as per R.C.Book) 3. Nisar Ahmad S/o Kashimali Shaikh, Aged:
43. Years, Occ: Business, R/o:
356. Begum Peth, Solapur-413 001. (Owner as per R.C.Book).
3. Sardar M. Inamadar, Aged: Major, Occ: Business, A/P: Arali, Tq: Mangalweda, 15 Dist. Solapur-413 305. (Owner as per Insurance Policy) … Respondents (Vide order dated 06.12.2018, service of notice to R-1 and R-2 is held sufficient, Notice to R-3 is dispensed with and Notice to R-4 is served) This MFA is filed under Section 173(1) of MV Act, against the judgment and award dated 09.04.2012 passed in MVC No.1597/2009 on the file of the Motor Accident Claims Tribunal and Fast Track Court-I/II, Bijapur, partly allowing the claim petition and awarding compensation of Rs.4,04,000/- with interest at 6% p.a. IN MFA No.30659/2013: Between: Rukmini W/o Rakesh Madgal Age :
38. Years, Occ: Household, R/o H.No.19-6-285, Shiva Nagar Bidar, Now at Plot No.141, Karnueshwar Nagar, Dist. Gulbarga-585 102. … Appellant (By Sri. Kailash C.Jidage, Advocate) And:
1. Siddappa S/o Raghunath Ranga Age:
42. Years, Occ: Jeep Owner, R/o Adarsh Colony, Latur (M.S.), Now a Venkatesh Furniture, Halwayl Complex, Ambedkar Circle, Bidar-585 401 16 2. The Manager, United India Insurance Co. Ltd., Pune, through it's Divisional Manager, United India Insurance Co. Ltd., Jewali Complex, Super Market, Gulbarga-585 101. … Respondents (By Sri. Sanjay M. Joshi, Advocate for R-2, R-1 served, unrepresented) This MFA is filed under Section 173(1) of MV Act, against the judgment and award dated 29.09.2011 passed in MVC No.1413/2009 on the file of II Addl. Senior Civil Judge and Member, MACT No.VII Gulbarga, partly allowing the claim petition and seeking enhancement of compensation. IN MFA No.30656/2013: Between:
1. P. Sudarshan Reddy S/o Yeshareddy Age:
48. Years, Occ: Agri., 2. Smt. Sharanamma W/o P. Sudarshanreddy Age:
45. Years, Occ: Household, R/o H.No.196/452/1, Shiva Nagar Bidar, Now at Plot No.141, Karuneshwar Nagar, Dist: Gulbarga-585 102. … Appellants (By Sri. Kailash C. Jidage, Advocate) And:
1. Siddappa S/o Raghunath Ranga Age:
38. Years, Occ: Jeep Owner, 17 R/o Adarsh Colony, Latur (M.S.), Now at Venkatesh Furniture Halwayl Complex, Ambedkar Circle, Bidar-585 401 2. The Manager, United India Insurance Co. Ltd., Pune, through it's Divisional Manager, United India Insurance Co. Ltd., Jewali Complex, Super Market, Gulbarga-585 101. … Respondents (By Sri. Sanjay M. Joshi, Advocate for R-2, Notice to R-1 is served, unrepresented) This MFA is filed under Section 173(1) of MV Act, against the judgment and award dated 29.09.2011 passed in MVC No.1410/2009 on the file of II Addl. Senior Civil Judge and Member, MACT No.VII Gulbarga, partly allowing the claim petition and seeking enhancement of compensation. IN MFA No.30657/2013: Between: Dattatraya S/o Kishanrao Madgal Age:
67. Years, Occ: Ret. Govt. Servant, R/o. H.No.19-6-285, Shiva Nagar, Bidar, Now at Plot No.141, Karuneshwar Nagar, Dist: Gulbarga-585 101. … Appellant (By Sri. Kailash C. Jidage, Advocate) And:
1. Siddappa S/o Raghunath Ranga 18 Age:
49. Years, Occ: Jeep Owner, R/o Adarsh Colony, Latur (M.S.), Now at Venkatesh Furniture Halwayl Complex, Ambedkar Circle, Bidar-585 401 2. The Manager, United India Insurance Co. Ltd., Pune, through it's Divisional Manager, United India Insurance Co. Ltd., Jewali Complex, Super Market, Gulbarga-585 101. … Respondents (By Sri. Sanjay M. Joshi, Advocate for R-2, R-1 is served but unrepresented) This MFA is filed under Section 173(1) of MV Act, against the judgment and award dated 29.09.2011 passed in MVC No.1412/2009 on the file of II Addl. Senior Civil Judge and Member, MACT No.VII Gulbarga, partly allowing the claim petition and seeking enhancement of compensation. IN MFA No.30658/2013: Between: Dattatraya S/o Kishanrao Madgal Age:
64. Years, Occ: Ret. Govt. Servant, R/o. H.No.19-6-285, Shiva Nagar, Bidar, Now at Plot No.141, Karuneshwar Nagar, Dist: Gulbarga-585 102. … Appellant (By Sri. Kailash C. Jidage, Advocate) 19 And:
1. Siddappa S/o Raghunath Ranga Age:
39. Years, Occ: Jeep Owner, R/o Adarsh Colony, Latur (M.S.), Now at Venkatesh Furniture Halwayl Complex, Ambedkar Circle, Bidar-585 401 2. The Manager, United India Insurance Co. Ltd., Pune, through it's Divisional Manager, United India Insurance Co. Ltd., Jewali Complex, Super Market, Gulbarga-585 101. … Respondents (By Sri. Sanjay M. Joshi, Advocate for R-2, Notice to R-1 is served, unrepresented) This MFA is filed under Section 173(1) of MV Act, against the judgment and award dated 29.09.2011 passed in MVC No.1411/2009 on the file of II Addl. Senior Civil Judge and Member, MACT No.VII Gulbarga, partly allowing the claim petition and seeking enhancement of compensation. IN MFA No.30904/2012: Between: Basawaraj S/o Govind Rao Koli, Age:
38. Years, Occ: Owner of the Jeep bearing No.: KA-38/M-0720, R/o Jantha Colony, Santhapur, Tq. Aurad, Dist: Bidar. … Appellant (By Sri. Sharanabasappa K. Babshetty, Advocate) 20 And:
1. The Manager, United India Insurance Co. Ltd., 9-2-24/5, 1st Floor, Main road, Near Ambedkar Circle, Bidar.
2. Gyanoba Rao S/o Gunwanth Rao, Age:
52. Years, R/o village Nagoor-M, Tq: Aurad, Dist: Bidar. Dead by his LRs:- i) Yamunabai W/o Late Gyanobarao, Age:
50. Years, Occ: House-hold, ii) Baburao S/o Late Gyanobarao, Age:
33. Years, Occ: House-hold, iii) Santosh S/o Late Gynobarao, Age:
30. Years, Occ: House-hold, iv) Siddabai @ Seelabai W/o Late Gyanobarao, Age:
45. Years, Occ: House-hold, v) Naunath S/o Late Gyanobarao, Age:
28. Years, Occ: House-hold, vi) Naganath S/o Late Gyanobarao, Age:
26. Years, Occ: House-hold, All R/o Village Nagoor-M, Tq. Aurad, Dist: Bidar. … Respondents (By Smt. Preeti Patil Melkundi, Advocate for R-1, R-2 (i) (ii) (iii) (iv) are held sufficient vide order dated 04.08.2015; Vide order dated 15.10.2020, notice to R-2 (v) and R2 (vi) are held sufficient) 21 This MFA is filed under Section 173(1) of MV Act against the Judgment and award dated 07.09.2011 passed in MVC No.395/2010 on the file of the Presiding Officer, FTC-I and Addl. MACT at Bidar, partly allowing the claim petition and awarding compensation of Rs. 44,000/- with interest at 6% p.a. IN MFA No.32191/2012: Between: The Branch Manager, United India Insurance Co. Ltd., Branch Office, Prashant House, Behind Syndicate Bank, Humnabad, Represented by its Branch Manager, Branch Office, Main Road, near Ambedkar Circle, Bidar. Through its Divisional Manager, Jawali Complex, Super Market, Gulbarga. … Appellant (By Sri. Shivanand Patil, Advocate) And:
1. Anand @ Anand Kumar S/o Madeppa Ganji, Age:
20. Year, Occ: Labour/Coolie, R/o Village Rajeshwar, Taluka Basavkalyan, now at Bidar-585 401.
2. Ramchandra S/o Suresh Age: Major, Occ: Business Nil, R/o H.No.2/97, Bagwan Galli, Humnabad-585 401. … Respondents 22 (By Sri. Sharanabasppa K Babshetty, Advocate for R-1, Sri. B.R.Math, Advocate for R-2) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 29.08.2012 passed in MVC No.590/2011 on the file of the II Additional MACT and Additional District Court at Bidar, partly allowing the claim petition and awarding compensation of Rs.80,000/- with interest at 6% p.a. IN MFA No.200224/2019: Between: The Manager The IFFCO-TOKIO General Insurance Company Ltd., Asian Arcade, Near Anand Hotel, S.B.Temple Road, Kalaburagi. … Appellant (By Sri Subhash Mallapur, Advocate) And:
1. Mahesh S/o Basavannappa Siroor, Age:
25. Years, Occ: Agri., & Coolie, R/o H-No.2-1-17, Madan Hipparga, Tq: Aland, Dist. Kalaburagi- 585 102.
2. Ahmed S/o Ibrahim Bepari Age:
42. Years, Occ: Owner of Jeep No.KA-25/B-3436, R/o Madan Hipparga, Tq. Aland, Dist. Kalaburagi-585 102. … Respondents (R-1 and R-2 are served) 23 This MFA is filed under Section 173(1) of MV Act, praying to allow the appeal and to set aside the judgment and award dated 22.10.2018 passed by the court of the Senior Civil Judge and MACT, Aland, in MVC No.771/2017, in the interest of justice and equity. IN MFA No.200225/2019: Between: The Manager The IFFCO-TOKIO General Insurance Company Ltd., Asian Arcade, Near Anand Hotel, S.B.Temple Road, Kalaburagi. … Appellant (By Sri Subhash Mallapur, Advocate) And:
1. Neelkanth S/o Sharnappa Langoti, Age:
46. Years, Occ: Agri., & Coolie, R/o Madan Hipparga, Tq: Aland, Dist. Kalaburagi- 585 102.
2. Ahmed S/o Ibrahim Bepari Age:
42. Years, Occ: Owner of Jeep No.KA-25/B-3436, R/o Madan Hipparga, Tq. Aland, Dist. Kalaburagi-585 102. … Respondents (R-1 and R-2 are served) This MFA is filed under Section 173(1) of MV Act, praying to allow the above the appeal and consequently be pleased to set aside the judgment and award dated 24 22.10.2018 passed by the Senior Civil Judge and MACT, Aland, in MVC No.772/2017, in the interest of justice and equity. IN MFA NO.32243/2012: Between:
1. Meerabai W/o Narayan Pawar Age 28 years, Occ. Household, R/o Bachanl Thanda, Post : Ranjol, Kamalapur Circle, Tq. & Dist. Gulbarga.
2. Mithnu S/o Narayan Pawar, Age :
11. years, Minor, 3. Ravina D/o Narayan Pawar Age :
10. years, minor, 4. Karina D/o Narayan Pawar, AGe :
8. years, minor, 5. Sachin S/o Narayan Pawar, Age 10 years, minor, 6. Shevu S/o Keeru Pawar, Age :
49. years, Occ. Coolie, 7. Ramanabai W/o Shevu Pawar, Age :
44. years, Occ. Household, Appellants 2 and 5 are minors, u/g of appellant No.1 All are R/o Bachnl Thanda, Post : Ranjol, Kamalapur Circle, Tq & Dist. Gulbarga. … Appellants (By Sri Ganesh Naik, Advocate) 25 And:
1. Meerasab S/o Nabisab Nagur, Age :
38. years, OCc. Business, R/o Kamalapur, Tq. & Dist. Gulbarga.
2. The United India Insurance Co.Ltd., Through its Divisional Manager, Dr.Jawali Complex, Super Market, Gulbarga. … Respondents (By Sri Babu H.Metagudda, Advocate for R1 Sri Sudarshan M.Advocate for R2) This MFA is filed under Section 173(1) of MV Act, against the judgment and award dated 22.04.2009 passed in MVC No.544/2008 on the file of the II Addl. Civil Judge (Sr.Dn.) & MACT, Gulbarga and award the compensation as prayed for and fix the entire liability on the insurance companies. IN MFA NO.31685/2012: Between: Baswaraj S/o Mallappa @ Gundappa, Aged 38 years, Occ. Mechanic in T.V.Servicing and Electronics R/o Janata Nagar Colony, Hudgi, Tq. Humnabad, Now at Pratap Nagar, Bidar. … Appellant (By Sri Jairaj K.Bukka, Advocate) 26 And:
1. Baswaraj S/o Ramanna, Aged Major, Occ. Business, R/o Kapper Gaon Tq. Humnabad, Dist. Bidar.
2. The National Insurance Co.Ltd., Divisional Office, , Gulbarga, through its Branch Office, G.G.Road, Giri Complex, Bidar. … Respondents (By Sri Basavaraj R.Math, Advocate for R1 Sri Sanjay M.Joshi, Advocate for R2) This MFA is filed under Section 173(1) of MV Act, praying to modify the judgment and award dated 16.11.2009 passed in MVC No.133/2004 on the file of the Presiding Officer, FTC-II, Bidar by enhancing the compensation amount from Rs.83,500/-(i.e., half of Rs.1,67,000/-) to Rs.6,40,000/- directing respondent No.2 to pay the said entire compensation amount discharging respondent No.1 of its liability and further be pleased to allow this appeal filed by the appellant. These appeals having been heard and reserved for judgment, coming on for “Pronouncement of judgment” this day, the Court delivered the following;
JUDGMENTAll the appeals have involved common question of law therefore they are taken up together for common consideration and discussion, therefore, they are taken up together for decision making in order to avoid repetition. 27
2. Here, in the present case for convenient the parties are referred as claimant/s, owner and insurance companies for easy reference.
3. In these present appeals the claimants have travelled as occupants in the Jeep/Car and some of the claimants have travelled as pillion rider on the motorcycle and met with accident and have sustained injuries/death occurred in the road traffic accident arising out of use of vehicles, therefore, whether the claimants are entitled compensation as being to be considered as third parties, by the insurance companies when in all the appeals the Insurance policies are 'Statutory policies/Act policies/liability only policies'.
4. As it is legal principle established that under the 'Statutory Policies/Act policies/liability only policies' the risk of third parties are Compulsorily covered as per Section 147 of the Motor Vehicles Act, 1988 (for brevity 'M.V.Act'). Compulsorily coverage of risk of third parties is made mandatory as per the provisions of the M.V.Act 28 Under these legal principles whether the occupants of the Car/Jeep or in case of two wheeler whether pillion rider is to be considered as third party and thus, these persons are covered under the 'Statutory policies/Act Policies/ liability only policies' is to be considered in all these batch of appeals.
5. There is divergent opinion by the Division Bench of this Court in the cases in the Oriental Insurance Company Limited v. Sri Purushotham T. M (ILR2006KAR889 and in the case of the Branch Manager, The New India Assurance Company v. Mahadev Pandurang Patil and another (ILR2012KAR1841.
6. In the case in Sri Purushotham T.M's case (supra), it is held that the passenger in private car is also covered by the 'Act Policy' under Section 147 of the M.V.Act. Their Lordships were pleased to follow previous pronouncement in the case of Ramachandra v. Shantaram (ILR2004KAR398 in which also it is held 29 that under the provisions of the M.V.Act the insurer is compulsorily required to cover the risk of the passengers of a private car or if any passenger carrying vehicle including two wheeler. Also by following judgment rendered by the Full Bench of Kerla High Court in the case of Oriental Insurance Company v. Ajaykumar (1999 ACJ1499.
7. But in the case in Mahadev Pandurang Patil's case (supra) it is held that where in the 'Act Policy' the risk of occupants of the car/jeep/vehicle and in case of pillion rider of motorcycle is not covered as these occupants in the car/jeep/vehicle or pillion rider are not to be categorized as third parties. It is held in the above case that if additional premium is paid to the insurance company to cover the risk of occupants in the vehicle or pillion rider then the insurance company is liable, otherwise not as per Sections 146 and 147 of the M.V.Act. While coming to such conclusion the Division Bench had referred many pronouncement of the Hon'ble Apex Court 30 and were pleased to observe at paras 16 and 17, which are as follows :-
"16. If the risk of an occupant of a car, inmate of a vehicle or passenger in a private car, is to be covered, additional premium has to be paid. If no additional premium is paid, their risk is not covered. The statutory liability under Sections 146 and 147 of the Act has to be read with the terms of the insurance policy issued under Section 146 of the Act. But that does not prevent an insurer from entering into a contract of insurance covering a risk wider than the minimum requirement of the statute, whereby the risk to gratuitous passengers could also be covered. A third party policy does not cover liability to gratuitous passengers who are not carried for hire or reward. If a liability other than the limited liability provided for under the Act s to be enhanced under an insurance policy, additional premium is required to be paid. The liability is restricted to the liability arising out of the statutory requirements under Section 14 only.
17. In view of the authoritative pronouncement of the Apex Court holding that an occupant/inmate/passenger in a private car, is not a third party, the finding recorded by the 31 Tribunal that the insurance policy issued covers the risk of such persons and therefore the insurance company is liable to pay compensation amount is illegal and contrary to the law declared by the Apex Court. In fact, in the policy, no additional premium is received by the insurance company to cover the risk of such persons. It is clear from the terminology used in the policy which fact is not in dispute. In one of the cases, additional premium is collected to loading the risk of third party only, as is clear from the policy that loading was not meant to cover risk of inmates of a private car and therefore, merely because an additional premium is collected under the said policy, it cannot be inferred that the risk of inmates of a car are covered. The words are specific that the loading is done in order to cover only third party risk, it is not a case of additional premium being collected to cover the risk of inmates along with third parties. Therefore, in the facts of this case, we are satisfied, as the insured has not paid additional premium and the insurance company has not collected any additional premium, the risk of the occupants of a private car was not covered. Therefore, liability foisted on the insurance company cannot be sustained and accordingly, it is herby set-aside."
32 8. When this being the exactly divergent opinion formed by the Division Bench of this Court, then references can be mad on the judgments of Hon'ble Apex Court to resolve controversy involved in all the appeals. The Hon'ble Apex Court in the judgment of United India Insurance Co.Ltd,. Shimla v. Tilak Singh (MANU/SC/8088/2006), were pleased to consider this aspect upon the provisions of the M.V.Act 1939 and under the M.V.Act.
1988. Admittedly the present case is after coming into force of the M.V.Act.
1988. It is worthwhile to extract the pronouncements made at paragraphs 14, 15 and 16, as follows :-
"14. The argument that the risk pertaining to a third party would extend to a person other than the parties to the insurance contract was raised in New India Assurance Company v. Satpal Singh and Ors., MANU/SC/0751/1999 : AIR2000SCC235where after contrasting the language of Section 95 (1) of the 1939 Act with the provisions of Section 147 (1) of the 1988 Act this Court held:
33. "The result is that under the new Act an insurance policy covering third party risk is not required to exclude gratuitous passengers in a vehicles, no matter that the vehicle is of any type or class. Hence the decisions rendered under the old Act vis-a- vis gratuitous passengers are of no avail while considering the liability of the insurance company in respect of any accident which occurred or would occur after the new Act came into force.
15. The view expressed in Satpal Singh's case (supra) however, has been specifically overruled in the subsequent judgment of a Bench of three judges in New India Assurance Company v. Asha Rani and Ors.,MANU/SC/1105/2002 :AIR2003SCC607 In that case the discussion arose in connection with carrying passengers in a goods vehicle. This Court after referring to the terms of Section 147 of the 1988 Act, as contrasted with Section 95 of the 1939 Act, held that the judgment in Satpal Singh's case (supra) had been incorrectly decided and that the insurer will not be liable to pay compensation. In the concurring judgment of Sinha, J.
after contrasting the language used in 34 the 1939 Act with that of the 1988 Act, it has been observed (vide paras 25 and 27):
"25. Section 147 of 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 in respect of drivers and conductors of public service vehicle and employees earned in a goods vehicle would be limited to the liability under the Workmen's Compensation Act. It does not speak of any passenger in a `good carriage'.
27. Furthermore, sub-clauses (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 of or bodily injury to any passenger of a public service caused by or 35 arising out of the use of the vehicle in a public place.
16. In our view, although the observation made in Asha Rani's case (supra) 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 toward 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 gratuitous passenger."
(Emphasis supplied) 9. In Tilak Singh's case (supra) the core issue involved before the Hon'ble Apex Court is whether a 'Statutory policy/Act Policy/liability only policy'' under the M.V.Act 1988 intended to cover the risk to life or damage to the properties of third parties, would cover the risk of death or injury to a passenger/occupant in a private vehicle. 36
10. Therefore, in Tilak Singh's case (supra) above case it is the dictum of the Hon'ble Apex Court that the Insurance Companies owe no liability towards the injuries suffered or death occurred in respect of those who travel as occupant in the car/jeep/vehicle or pillion rider in case of two wheeler where the insurance policy is a 'Act Policy/Statutory Policy/liability only policy' and hence, it does not cover the risk of those persons.
11. Further, the Hon'ble Apex Court in the case of Oriental Insurance Company Limited v. Sudhkaran K.V (2008 ACJ2045, wherein the issue for consideration is that, as to whether the pillion rider on a scooter would be a third party within the meaning of Section 147 of the M.V.Act so as to cover the risk of a pillion rider under the 'Act Policy/Statuary Policy'. It is held by the Hon'ble Apex Court that the death of pillion rider on the scooter is not covered by holding that the pillion rider is not third party as per Section 147 of the M.V.Act, where the policy is 'Act Policy/Statutory Policy/liability only policy'. After referring 37 many previous pronouncements the Hon'ble Apex Court were pleased to observe at para 19, which is as follows :-
"19. The law which emerges from the said decisions, is: (i) the liability of the insurance company in a case of this nature is not extended to a pillion rider of the motor vehicle unless the requisite amount of premium is paid for covering his/her risk (ii) the legal obligation arising under Section 147 of the Act cannot be extended to an injury or death of the owner of vehicle or the pillion rider; (iii) the pillion rider in a two wheeler was not to be treated as a third party when the accident has taken place owing to rash and negligent riding of the scooter and not on the part of the driver of another vehicle.
12. Further, the Hon'ble Apex Court in the judgment in the case of National Insurance Company Limited v. Balkrishnan [(2013) 1 SCC731, were pleased to define the difference between 'Act Policy/Statutory Policy/liability only policy' and 'Comprehensive/Package Policy'. It is held that under the 'Act Policy' the injury or death occurred in respect of 38 occupants of the car/jeep/vehicle and pillion rider in case of two wheeler, the risk is not covered under the 'Act Policy', hence, the Insurance Companies are not liable to pay compensation. But under the 'Comprehensive Policy', the injury or death occurred in respect of occupants of the car/jeep/private vehicle and pillion rider in case of two wheeler the risk is covered, hence, the Insurance Company is liable to pay the compensation.
13. It is worthwhile to mention the observations made by their Lordships in Balakrishnan's case (supra) which is made after referring may previous judgments, at paragraphs 20, 21 and at para 26 and 27, which are as follows :-
"20. Thus, it is quite vivid that the Bench in Bhagyalakshmi case v. United Insurance Co.LTd., (2009) 7 SCC148 had made a distinction between the “Act policy” and “comprehensive policy/package policy”. We respectfully concur with the said distinction. The crux of the matter is what would be the liability of the insurer if the policy is a “comprehensive/package policy”. We 39 are absolutely conscious that the matter has been referred to a larger Bench, but, as is evident, the Bench has also observed that it would depend upon the view of the Tariff Advisory Committee pertaining to enforcement of its decision to cover the liability of an occupant in a vehicle in a “comprehensive/package policy” regard being had to the contract of insurance.
21. At this stage, it is apposite to note that when the decision in Bhagyalakshmi (supra) was rendered, a decision of High Court of Delhi dealing with the view of the Tariff Advisory Committee in respect of “comprehensive/package policy” had not come into the field. We think it apt to refer to the same as it deals with certain factual position which can be of assistance. The High Court of Delhi in Yashpal Luthra and Anr. V. United India Insurance Co. Ltd. and Another[2011 ACJ1415(Del)]., after recording the evidence of the competent authority of Tariff Advisory Committee (TAC) and Insurance Regulatory and Development Authority (IRDA), reproduced a Circular dated 16.11.2009 issued by IRDA to CEOs of all the Insurance Companies restating the factual position relating to the liability of Insurance companies in respect of a pillion rider 40 on a two-wheeler and occupants in a private car under the comprehensive/package policy."
xxx xxx xxx 26. In view of the aforesaid factual position, there is no scintilla of doubt that a “comprehensive/package policy” would cover the liability of the insurer for payment of compensation for the occupant in a car. There is no cavil that an “Act Policy” stands on a different footing from a “Comprehensive/Package Policy”. As the circulars have made the position very clear and the IRDA, which is presently the statutory authority, has commanded the insurance companies stating that a “comprehensive/ package Policy” covers the liability, there cannot be any dispute in that regard. We may hasten to clarify that the earlier pronouncements were rendered in respect of the “Act Policy” which admittedly cannot cover a third party risk of an occupant in a car. But, if the policy is a “comprehensive/package Policy”, the liability would be covered. These aspects were not noticed in the case of Bhagyalakshmi (supra) and, therefore, the matter was referred to a larger Bench. We are disposed to think that there is no necessity to refer the present matter to a larger 41 Bench as the IRDA, which is presently the statutory authority, has clarified the position by issuing circulars which have been reproduced in the judgment by the Delhi High Court and we have also reproduced the same.
27. In view of the aforesaid legal position, the question that emerges for consideration is: whether in the case at hand, the policy is an “Act policy” or “comprehensive/package Policy”?. There has been no discussion either by the Tribunal or the High Court in this regard. True it is, before us, Annexure P-1 has been filed which is a policy issued by the insurer. It only mentions the policy to be a “comprehensive policy” but we are inclined to think that there has to be a scanning of the terms of the entire policy to arrive at the conclusion whether it is really a “package policy” to cover the liability of an occupant in a car.
14. Even though in the above Balakrishnan's case (supra) the Hon'ble Apex Court were pleased to remand the matter for fresh consideration regarding determination of nature of policy but it is held if the policy is found to be 'Comprehensive/Package Policy' then the liability would be fastened on the Insurer. Therefore, it is 42 further the dictum in Balakrishnan's case (supra) that by giving clarification that under the 'Act Policy', it cannot cover a third party risk of an occupant in a car (para 26).
15. Further the Hon'ble Apex Court in the case of General Manger, United India Insurance Company Limited vs. M.Laxmi and others (2009 ACJ104, wherein the facts are that the pillion rider while going on the scooter died in the accident as the rider hit the scooter to the bullock cart, and the Insurance Policy is 'Act Policy' in respect of the said scooter and the Tribunal held that Insurance Company is not liable but owner of the scooter is liable to pay the compensation. The owner of the scooter preferred appeal before the High Court, and the High Court modified the award by holding that insurance company is liable to pay compensation but not the owner of the vehicle. The order of the High Court is challenged before the Hon'ble Apex Court and the Hon'ble Apex Court, after discussing the Tilak Singh's case (supra) set- aside the judgment of High Court and thus the award 43 passed by the MACT is restored. Therefore, in M.Laxmi's case (supra) it is the ratio that under the 'Act Policy' the risk of the pillion rider on two wheeler is not covered, hence, Insurance Company is not liable to pay the compensation.
16. The Hon'ble Apex Court in the judgment of the New India Assurance Company Limited v. C M.Jaya and others (2002 ACJ271 were pleased to consider the previous pronouncements and were pleased to observe at paragraphs 5, 6 and 7, which are as follows ;-
"5. Thus, a careful reading of these decisions clearly shows that the liability of the insurer is limited, as indicated in Section 95 of the Act, but it is open to the insured to make payment of additional higher premium and get higher risk covered in respect of third party also. But in the absence of any such clause in the insurance policy the liability of the insurer cannot be unlimited in respect of third party and it is limited only to the statutory liability. This view has been consistently taken in the other decisions of this Court. 44
6. In Shanti Bai's case (supra), a bench of three learned Judges of this Court, following the case of Jugal Kishore, has held that (i) a comprehensive policy which has been issued on the basis of the estimated value of the vehicle does not automatically result in covering the liability with regard to third party risk for an amount higher than the statutory limit, (ii) that even though it is not permissible to use a vehicle unless it is covered at least under an "Act only" policy, it is not obligatory for the owner of a vehicle to get it comprehensively insured and (iii) that the limit of liability with regard to third party risk does not become unlimited or higher than the statutory liability in the absence of specific agreement to make the insurer's liability unlimited or higher than the statutory liability.
7. On a careful reading and analysis of the decision in Amrit Lal Sood (supra), it is clear that the view taken by the Court is no different. In this decision also, the case of Jugal Kishore is referred to. It is held (i) that the liability of the insurer depends on the terms of the contract between the insured and the insurer contained in the policy; (ii) there is no prohibition for an insured from entering into a contract of insurance covering a risk wider than the minimum 45 requirement of the statute whereby risk to the gratuitous passenger could also be covered; and (iii) in such cases where the policy is not merely statutory policy, the terms of the policy have to be considered to determine the liability of the insurer. Hence, the Court after noticing the relevant clauses in the policy, on facts found that under Section II-1(a) of the policy, the insurer has agreed to indemnify the insured against all sums which the insured shall become legally liable to pay in respect of death of or bodily injury to "any person". The expression "any person" would undoubtedly include an occupant of the car who is gratuitously traveling in it. Further, referring to the case of Pushpabai Purshottam Udeshi (supra), it was observed that the said decision was based upon the relevant clause in the insurance policy in that case which restricted the legal liability of the insurer to the statutory requirement under Section 95 of the Act. As such, that decision had no bearing on Amrit Lal Sood's case as the terms of the policy were wide enough to cover a gratuitous occupant of the vehicle. Thus, it is clear that the specific clause in the policy being wider, covering higher risk, made all the difference in Amrit Lal Sood's case as to unlimited or higher liability. The Court decided that case in the light of the specific clause contained in the policy. The 46 said decision cannot be read as laying down that even though the liability of the insurance company is limited to the statutory requirement, an unlimited or higher liability can be imposed on it. The liability could be statutory or contractual. A statutory liability cannot be more than what is required under the statute itself. However, there is nothing in Section 95 of the Act prohibiting the parties from contracting to create unlimited or higher liability to cover wider risk. In such an event, the insurer is bound by the terms of the contract as specified in the policy in regard to unlimited or higher liability as the case may be. In the absence of such a term or clause in the policy, pursuant to the contract of insurance, a limited statutory liability cannot be expanded to make it unlimited or higher. If it is so done, it amounts to re-writing the statute or the contract of insurance which is not permissible.
17. This court in catena of decisions in MFA No.4246/2009 dated 01.07.2017 (National Insurance Co.Ltd., v. Srinivas); in MFA No.20607/2010 (MV) dated 28.02.2018 (Divisional Manager, United India Insurance Co.Ltd.,v Veerabhdarappa); in MFA No.32234/2010 (MV) 47 dated 10.03.2020 (United India Insurance Co.Ltd., v. Satayanarayan); in MFA No.21077/2012 (MV) connected with MFA No.24740/2012 (MV) dated 27.08.2019 (The Branch Manager, Oriental Insurance Co.Ltd., Rachappa); in MFA No.2628/2010 connected with MFA No.2629/2010 (MV) dated 15.09.2020 (The New India Assurance Co.Ltd., v. Smt.Girija); in MFA No.30792/2012 (MV) dated 30.09.2020 (The Divisional Manager, United India Insurance Company v. Shanti) were pleased to hold that were the insurance policy is 'Act Policy/Statutory Policy/liability only policy' the risk so far as occupants in the car/jeep and pillion rider on motorcycle are not covered as these persons are not categorized as 'third party' as per Section 147 of the M.V.Act.
18. The learned counsels appearing for the claimants and owners of the vehicle, places reliance on the judgment of the High Court of Gujarat at Ahmedabad in the case of Hemendrasinh Mansinh Jadav v. Sanjaybhai Govindbhai Dabhi (First Appeal 48 No.384/2016 dated 03.10.1980) and argued that the occupants in the car/jeep and pillion rider on two wheeler are also to be categorized as 'third party' and thus the Insurance Company is liable irrespective of nature of policy because there is nothing like different type of policies in the statute and the liability of the Insurance Company is certainly statutory and therefore the Insurance Companies cannot escape from such liability. The High Court of Gujarat has considered various judgments and came to conclusion that there is no exclusion under the statute that the occupants of the car/jeep or pillion rider in case of two wheeler for covering risk under Section 147 of the M.V.Act as the word used in Section 147 of the M.V.Act is 'any person' except class of person specifically excluded under the statute. The High Court of Gujarat in the above stated judgment referred various judgments of the other High Courts and by observing that those are not overruled or referred before the Hon'ble Apex Court, hence, the occupants in the 49 car/jeep or pillion rider are also covered under the 'Act Policy'. Therefore, it is view of the High Court of Gujarat that the occupant of the car/jeep or pillion rider are also statutorily covered under Section 147 of the M.V.Act under the 'Act Policy', as these are to be categorized as third party. The High Court of Gujarat in the above cited case (supra) eruditely delivered judgment upon considering the history and evolution of concept of insurance developed through statute from time to time even discussing from the period of British era and till coming into force of the New Enactment also considering the various judgments of the Hon'ble Apex Court and other High Courts. Therefore, the High Court of Gujarat has held that even under the 'Act Policy/Statutory Policy/ liability only policy' risk of the occupants of the car/jeep or pillion rider on the two wheeler is covered as they are coming under the category of third parties.
19. The High court of Judicature at Madras in the judgment in C.M.A.No.2696/2018 and C.M.P. 50 No.20384/2018 dated 28.02.2019 in the case United India Insurance Company v. Satishkumar, held that in an 'Act Policy', the pillion rider on two wheeler is gratuitous passenger and therefore the Insurance Company is not liable to pay the compensation to the pillion rider. Therefore, the High Court of Judicature at Madras has taken a view that the pillion rider on motorcycle is gratuitous passenger, hence, under the 'Act Policy' Insurance Company is not liable to pay compensation.
20. Therefore, from the ratio laid down by the Hon'ble Apex Court in the above referred judgments, the ratio laid down by this Court except Sri Purushotham T.M's case (supra) and by the Madras High Court (supra) it is settled principle of law that under the 'Act Policy/Statutory Policy/liability only policy', the occupants of the car/jeep or pillion rider on motorcycle the risk is not covered as they are not to be categorized as third parties. But under the 'Comprehensive Policy/Package Policy/ liability only policy', the risk of occupants of the car/jeep 51 or pillion on motorcycle are covered as the insured(owner) has entered into contract of insurance with the Insurer for covering risk at higher degree by making payment of extra premium above the horizon of covering risk under the 'Statutory Policy'. Therefore, it is dictum in the above cited judgments if extra premium is not paid covering the risk of the occupants of the car/jeep or pillion on motorcycle, the Insurance Companies are not liable to indemnify the owner by making payment of compensation.
21. But, the High Court of Gujarat took different view in above cited case (Hemendrasinh Mansinh Jadav) that even the occupants of the car/jeep or pillion rider on the motorcycle are to be termed as third parties and irrespective of the nature of insurance policies so to particularly to say that even under the 'Act Policy/ Statutory Policy/liability only policy' the risk is covered and hence the Insurance Companies are liable to pay the compensation. 52
22. Chapter X of the M.V.Act stipulates regarding liability on the Insurance Companies 'without fault' in certain cases. Therefore, Chapter X of the M.V.Act is dealing with liability of payment of compensation on the principle "no fault liability'. Chapter XI of the M.V.Act deals with insurance of motor vehicles against third party risks. The provisions in Chapter XI and XII of the M.V.Act deals with procedures regarding award of compensation, liability on the owner and insurance companies etc. Section 145 of the M.V.Act gives the definitions. Clause (g) only stipulates the "third party" includes the Government (before amendment Act 2019). Section 146 of the M.VAct deals with necessity for insurance against third party risk. Section 147 of the M.V.Act stipulates regarding requirements of policies and limits of liability. Therefore, there are no definitions in the M.V.Act defining the term 'Act Policy/Statutory Policy/liability only policy' and 'Comprehensive Policy/Package Policy'. These terminology are evolved and generated through the wordings used in 53 the M.V.Act. Therefore, these terminologies are used which arose out of practice of purchase of insurance policies keeping in view the degree of covering risk. Covering risk of third party is mandatorly made by the statute. Unless a vehicle is made insured compulsorily so far as covering risk of third party, that vehicle shall not be used on the public places or even in private premises for plying. Therefore every insured shall purchase insurance policy compulsorily covering risk of third parties before making use the said vehicle for plying either in public place or in private place. Therefore, the terminology of 'Act Policy/Statutory Policy/liability only policy' is being used. Therefore, the contract of insurance between the insured and insurer in case of covering risk of third parties is compulsorily made and for this the owner of the vehicle has to pay a minimum amount of premium compulsorily as this type of insurance policy is called as 'Act policy/Statutory Policy/liability only policy'. Whereas, if the owner intends to cover higher degree of risk above the 54 covering risk of third parties so as to include covering risk of occupants in the car/jeep or pillion rider on the motorcycle or damaged caused to the vehicle the owner has to pay higher amount of premium covering the risk comprehensively. Therefore, above the degree of covering the risk of third parties, if the owner intends to cover risk on higher degree as above stated it is because of on own volition of insurer and insured. Therefore, the degree of covering risk of covering third party only or covering higher degree of risk that depends upon payment of extra premium. Therefore if extra premium is paid on the own volition of the insured (owner) then it covers higher degree of risk, otherwise not.
23. Section 2(35) of the M.V.Act defines 'public service vehicle' which stipulates as follows :- "2(35). "public service vehicle" means any motor vehicle used or adapted to be used for the carriage of passengers of hire or reward, and includes a maxicab, a motorcab, contract carriage, and stage carriage."
55 Therefore, the passenger of any motor vehicle which is not meant for public service is not covered under Section 2(35) of the M.V.Act.
24. Section 2(33) of the M.V.Act defines 'private service vehicle', which is extracted as follows :- "2(33). "private service vehicle" means a motor vehicle constructed or adapted to carry more than six persons excluding the driver and ordinarily used by or on behalf of the owner of such vehicle for the purpose of carrying persons for, or in connection with, his trade or business otherwise than for hire or reward but does not include a motor vehicle used for public purposes.
25. Therefore, there is clear distinction is made between the passengers carrying in 'private service vehicle' and 'public service vehicle'. Insured (owner) is first party and insurer is second party. Therefore, the persons who are outside the offending vehicle or may be passengers in another vehicle if it meets with accident by offending 56 vehicle are only terms as third parties considering the definitions enshrined in Section 2(33) of and Section 2(35) of the M.V.Act with reference to the types of passengers in the said nature of vehicles. Section 147 of the M.V.Act does not require a policy to cover the risk to passengers who are not carried for hire or reward. The statutory insurance as mandated in Section 147 of the M.V.Act does not cover injuries suffered by the occupants of the private vehicle or death of the occupants is caused in the accident whether they are carried for hire or reward or not then they are not to be categorized as third parties and as such the insurer cannot be held liable under Section 147 of the M.V.Act. Therefore, considering the definitions enshrined in Section 2(33) and Section 2(35) and Section 147 of the M.V.Act and if they are read harmoniously, the occupants/passengers/inmates of a private vehicle do not fall within the definition of category as third parties. Therefore, the legal obligations made as per Section 147 of the M.V.Act is only to the third parties stated above to 57 those persons stated therein and it cannot extend to the occupants of the car/jeep or pillion rider on the motorcycle as they are not carried for hire or reward in a private service vehicle, hence, they are not third parties.
26. In public service vehicle the carriage of passengers is on hire or reward basis and for that terms of contract of insurance is different. But, in private service vehicle the passengers are not carried for hire or reward basis, simply they are occupants in the private service vehicle. Even giving private service vehicle on hire or reward basis is not correct as per law. Therefore, the terms of contract of insurance in so far as private service vehicle is concerned is different. For private service vehicle, it is compulsory to purchase insurance policy for third parties are concerned, but is an option so far as covering risk of occupants in the private service vehicle is concerned. Therefore, in private service vehicle for covering risk of occupants an additional premium is to be paid. Hence, in these context, the Hon'ble Apex Court were 58 pleased to make difference between the nature of 'Act Policy/Statutory Policy/Liability only policy" on one hand and 'Comprehensive Policy' on other hand in the judgment stated supra. Therefore, Section 147 of the M.V.Act only covers the risk of third party and to cover the risk in respect of the persons stated therein, but, certainly does not extend covering risk of occupants of the car/jeep or pillion rider on the motorcycle.
27. As discussed above, if insured (owner) intends to cover higher degree of risk than what is covering risk of third parties, then, the insured (owner) shall pay additional premium and it is on volition of insurer and insured as it is pure contract between them in this regard. In absence of payment of additional premium covering risk of the persons at higher degree apart from third parties, then the insurance companies are not liable to pay compensation. Therefore, under Section 147 of the M.V.Act the liability arising out of statutory requirement stated therein. 59
28. The Hon'ble Apex Court in the case of Oriental Insurance Company v. Meena Variyal and others [(2007) 5 SCC428 were pleased to observe at paragraphs 12, 13, 14, which are as follows:-
"12. Chapter XI of the Act bears a heading, "Insurance of Motor Vehicles against third party risks". The definition of "third party" is an inclusive one since Section 145(g) only indicates that "third party" includes the Government. It is Section 146 that makes it obligatory for an insurance to be taken out before a motor vehicle could be used on the road. The heading of that section itself is "Necessity for insurance against third party risk". No doubt, the marginal heading may not be conclusive. It is Section 147 that sets out the requirement of policies and limits of liability. It is provided therein that in order to comply with the requirements of Chapter XI of the Act, a policy of insurance must be a policy which is issued by an authorised insurer; or which insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) against any liability which may be incurred by the owner in respect of the death of or bodily injury or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. With effect from 14.11.1994, injury to the owner of goods or his authorised representative carried in the vehicle was also added. The policy had to cover death of or bodily injury to any 60 passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place. Then, as per the proviso, the policy shall not be required to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment, other than a liability arising under the Workmen's Compensation Act, 1923 in respect of the death of, or bodily injury to, an employee engaged in driving the vehicle, or who is a conductor, if it is a public service vehicle or an employee being carried in a goods vehicle or to cover any contractual liability. Sub-section (2) only sets down the limits of the policy.
13. As we understand Section 147 (1) of the Act, an insurance policy thereunder need not cover the liability in respect of death or injury arising out of and in the course of the employment of an employee of the person insured by the policy, unless it be a liability arising under the Workmen's Compensation Act, 1923 in respect of a driver, also the conductor, in the case of a public service vehicle, and the one carried in the vehicle as owner of the goods or his representative, if it is a goods vehicle. It is provided that the policy also shall not be required to cover any contractual liability. Uninfluenced by authorities, we find no difficulty in understanding this provision as one providing that the policy must insure an owner against any liability to a third party caused by or arising out of the use of the vehicle in a public 61 place, and against death or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of vehicle in a public place. The proviso clarifies that the policy shall not be required to cover an employee of the insured in respect of bodily injury or death arising out of and in the course of his employment. Then, an exception is provided to the last forgoing to the effect that the policy must cover a liability arising under the Workmen's Compensation Act, 1923 in respect of the death or bodily injury to an employee who is engaged in driving the vehicle or who serves as a conductor in a public service vehicle or an employee who travels in the vehicle of the employer carrying goods if it is a goods carriage. Section 149(1), which casts an obligation on an insurer to satisfy an award, also speaks only of award in respect of such liability as is required to be covered by a policy under clause (h) of sub- section (1) of Section 147, (being a liability covered by the terms of the policy). This provision cannot therefore be used to enlarge the liability if it does not exist in terms of Section 147 of the Act.
14. The object of the insistence on insurance under Chapter XI of the Act thus seems to be to compulsorily cover the liability relating to their person or properties of third parties and in respect of employees of the insured employer, the liability that may arise under the Workmen's Compensation Act, 1923 in respect of the driver, the conductor and the one carried in a goods vehicle carrying goods. On this plain understanding of Section 147, we find it difficulty to hold that the insurance company, in the case on hand, was liable to indemnify the owner, the employer Company, the insured, in respect of the 62 death of one of its employees, who according to the claim, was not the driver. Be it noted that the liability is not one arising under the Workmen's Compensation Act, 1923 and it is doubtful, on the case put forward by the claimant, whether the deceased could be understood as a workman coming within the Workmen's Compensation Act, 1923. Therefore, on a plain reading of Section 147 of the Act, it appears to be clear that the insurance company is not liable to indemnify the insured in the case on hand.
29. Further, in the very same judgment in Meena Variyal''s Case (supra) it is observed at paragraphs 28 and 29, which are as follows :-
"28. In Pushpabai Purshottam Udeshi & Ors. Vs. M/s Ranjit Ginning & Pressing Co. (P) Ltd. & Anr. [(1977) 3 S.C.R. 372]., two of the learned judges who constituted the Bench in Minu B. Mehta (supra) held that when a car is driven by the owner's employee on owner's business, the normal rule was that it was for the claimant for compensation to prove negligence. When the Manager of the owner while driving the car on the business of the owner took in a passenger, it would be taken that he had the authority to do so, considering his position unless otherwise shown. If due to his negligent driving an accident occurred and the passenger died, the owner would be liable for compensation. The court noticed that the modern trend was to make the master liable for acts of his servant which may not fall within the expression "in the course of his employment" as formerly understood. With respect, we think that the extensions to the 63 principle of liability has been rightly indicated in this decision.
29. On the facts of this case, there is no finding that Mahmood Hasan, another employee of the owner was driving the vehicle. Even if he was, there is no finding of his negligence. The victim was the Regional Manger of the Company that owned the car. He was using the car given to him by the Company for use. Whether he is treated as the owner of the vehicle or as an employee, he is not covered by the insurance policy taken in terms of the Act --- without any special contract --- since there is no award under the Workmen's Compensation Act that is required to be satisfied by the insurer. In these circumstances, we hold that the appellant Insurance Company is not liable to indemnify the insured and is also not obliged to satisfy the award of the Tribunal/Court and then have recourse to the insured, the owner of the vehicle. The High Court was in error in modifying the award of the Tribunal in that regard.
30. In Meena Variyal's case (supra) the facts are that the deceased Suresh Chandra Variyal was employed as Regional General Manager in M/s Apace Savings and Mutual Benefits (India) Limited, who is owner of the Car. The deceased was provided with a car by the above said employer. There was no special contract. It means the contract of insurance is statutory contract only covering risk of third party and no more coverage of risk. It was 64 contended before the Tribunal at one time one Mahmood Hasan was driving the car and another contention taken was the deceased was driving the car. Therefore, the deceased either he was occupant in the car or was driving the car (it is observed in the said judgment that there is no specific evidence which version whether deceased was driving the car or Mahmood Hasan was driving the car is not clear). But the Tribunal held that the deceased was driving the car and met with accident and died. Then the Tribunal assessed compensation and directed the owner of the vehicle to pay the compensation by exonerating liability of the Insurance Company. Then the claimants have preferred appeal before the High Court and the High Court held the Insurance Company is liable to pay compensation. Then the Insurance Company took the matter to the Hon'ble Apex Court. The Hon'ble Apex Court reversed the decision of the High Court and restored the award passed by the Tribunal exonerating the Insurance Company from liability. In this background of factual 65 matrix involved in the above cited case it is held that insurance company is not liable to pay compensation as the insurance policy is presumed to be 'Act Policy' and there is no special contract between the insurer and insured and even either the deceased was driving the car or occupant in the car is not clear on evidence, but on these facts and circumstances it is held that under the 'Act Policy' the risk of occupant of the car or driver of the car is not covered, hence, insurance company is not liable to pay compensation. In the above cited case one of the fact is that there is no proof of payment of additional premium covering the risk of other persons other than third parties. Therefore, it is the ratio laid down when there is no special contract of insurance between the owner and the Insurance Company and where the insurance policy is mandatorily covering risk of third party only then under such insurance policy as it is 'Act Policy/Statutory Policy liability only policy' the risk of occupants of the car/jeep is not covered, therefore, 66 restored the award of Tribunal as was held the owner is liable but not the Insurance Company.
31. Therefore, the ratio laid down in the Meena Variyal's case (supra) is squarely applicable to the present facts, circumstances involved in these cases. Section 147 of the M.V.Act prescribes, requirements of policy of insurance and limits of liability, while in the proviso appended thereto carves out an exception to the main provision. It prescribes compulsorily coverage of risk to third parties and to those who are stated in the said provision. Therefore, unless the purchase of insurance policy compulsorily at minimal covering the risk of third parties, the owner cannot ply the vehicles on road or on public places and also in private places. Therefore, the provisions of the M.V.Act are benevolent in nature protecting right and interest of victims arising out of accident particularly who are third parties. There is compulsion on the owner for purchasing 'Act Policy/Statutory Policy/liability only policy' but the owner 67 is at option to purchase insurance policy covering more risk apart from third parties. Therefore, for covering risk for occupant in the car/jeep or pillion rider on the motorcycle, then the owner has to pay additional premium. Therefore, proof of additional premium is a pure question of fact. Therefore, where compulsorily purchase of insurance policy covering third parties only the insurance policy is 'Act' Policy/Statutory Policy/liability only policy' but under this 'Act Policy/Statutory Policy/ liability only policy' the risk of occupant of the car/jeep or pillion rider is not covered as they are not be categorized as third parties. Therefore, by this judgment it is held that under the 'Act Policy/Statutory Policy/ liability only policy', the risk of occupant of the jeep/car or pillion rider is not covered hence the Insurance Company is not liable to pay compensation in respect of death or bodily injury occurred to the occupant of the car/jeep or pillion rider. Therefore, under these circumstances the appeal filed by the Insurance Companies in the cases of putting burden 68 on the Insurance Companies to pay compensation, are hereby allowed as putting burden on the Insurance Companies are erroneous, thus putting burden on Insurance Companies is set-aside. Consequently, the appeal filed by the claimants and owners of the vehicle if they are calling in question exonerating the Insurance Companies are hereby dismissed.
32. As stated above, if additional/extra premium is paid covering risk either to owner-driver of the car/jeep or covering risk of pillion rider, then the proof of payment of additional/extra premium is a pure question of fact based on the insurance policies. Therefore, the insurance policies in each case is to be considered to find out whether additional/extra premium is paid or not.
33. The appeals by Insurance Company in MFA Nos.31781/2010, 31782/2010, 30418/2011, 30649/2011, 31128/2011, 32463/2012, 32191/2012, 200224/2019, 200225/2019, 31842/2012, 31844/2012 and 31881/2012: In these appeals the appellants is/are claimants who are occupants of the private vehicles and hence they are 69 not third party/parties. Therefore, fastening liability on the appellants/insurance companies are erroneous, hence, appeals are liable to be allowed and the Insurance Company is exonerated for payment of compensation by putting burden to pay compensation on the respondents- owner. Hence, the appeals are allowed.
34. The appeals by claimants and owner in MFA Nos.30659/2013, 30656/2013, 30657/2013 and 30658/2013, 31036/2011, 31393/2012, 32243/2012, 31685/2012 and 309042012-(owner) : In these present appeals the claimants are occupants in the private vehicle and hence they are not third parties. Therefore, fastening liability on the owner of the private vehicle is correct. Thus, the Insurance Company is rightly exonerated from the liability to pay compensation. Therefore, the appeals filed by the claimants and owners are liable to be dismissed. Accordingly, dismissed.
35. Hence, for the foregoing reasons and discussions, I proceed to pass the following :
70.
ORDERThe MFA Nos.31781/2010, 31782/2010, 30418/2011, 30649/2011, 31128/2011, 32463/2012, 32191/2012, 200224/2019, 200225/2019, 31842/2012, 31844/2012 and 31881/2012, filed by the Insurance Companies are hereby allowed. The judgment and award passed by the Tribunal are hereby modified to the extent that the appellants/ Insurance Companies are exonerated from payment of compensation by fixing liability on the owner of the vehicle. No order as to costs. Draw award accordingly in the respective appeals. The MFA Nos.30659/2013, 30656/2013, 30657/2013 and 30658/2013, 31036/2011, 31393/2012, 32243/2012, 31685/2012 and 30904/2012-(owner) filed by the claimants/owners are hereby dismissed. The judgment and award passed by the Tribunal so far as fastening liability on the owners of the vehicle are hereby confirmed. No order as to costs. 71 Draw award accordingly in the respective appeals. The other observations and terms of Tribunal kept intact. SD/- JUDGE sn