HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA AND HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY
M.A.C.M.A. Nos.1047 AND 1219 OF 2010
Date:29-04-2014
Between:
M.A.C.M.A. No.1047 OF 2010
M.A.C.M.A. No.1219 OF 2010
The New India Assurance Company Limited, Rep. by its Deputy Manager, Motor Third Party Claims Cell, 404 and 402, A-1 Karim Trade Centre, Ranigunj, Secunderabad. - - - Appellant.
And M. Tarun Reddy and 2 others. - - - Respondents.
This Court made the following :
HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA AND HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY
M.A.C.M.A. Nos.1047 AND 1219 OF 2010
COMMON JUDGMENT: (Per Hon’ble Sri Justice M. Satyanarayana Murthy)
These two appeals are filed by the minor petitioners – claimants, being legal heirs of deceased Kartika, and the 2nd respondent - Insurance Company, separately, aggrieved by the order dated 05.02.2009 passed in Motor Vehicles Original Petition No.1316 of 2002, on the file of Motor Accidents Claims Tribunal-cum-Additional Metropolitan Sessions Judge for trial of Jubilee Hills Car Bomb Blast Case-cum-Additional Family Court-cum-XXIII Additional Chief Judge, Hyderabad (For short, ‘the Tribunal’), where under the claim petition filed by the minor petitioners - claimants was allowed, in part, awarding compensation of Rs.6,28,000/- together with interest at the rate of 7.5% p.a. from the date of petition till the date of deposit, against the original claim of Rs.43,00,000/-.
2. The appellants in M.A.C.M.A. No.1047 of 2010 were the minor petitioners – claimants and the appellant in M.A.C.M.A. No.1219 of 2010 was the 2nd respondent – Insurance Company before the Tribunal in M.V.O.P. No.1316 of 2002. For the sake of convenience, the parties hereinafter will be referred as arrayed before the Tribunal.
3. The petitioners - claimants, being minor children of deceased Kartika, filed claim petition before the Tribunal under Sections 166 and 163-A of the Motor Vehicles Act, 1988 (For short, ‘Act of 1988’) claiming compensation of Rs.43,00,000/- for untimely death of Kartika, in road accident that occurred on the intervening night of 05/06-01- 2002 at about 02:00 a.m. while Kartika was traveling in the Ford Icon car bearing No.AP-13E-456 and when the car reached Road No.4 of Banjara Hills, Hyderabad, the driver of the car while taking a turn at cross-roads of Banjara Hills Road No.4, dashed against the traffic island near road divider, due to which, Kartika sustained fracture injury on her head and other injuries on C-4 and C-5 vertebra and cervical cord compression and other grievous injuries and as such, she became unconscious and developed convulsions. Immediately, she was shifted to Yashoda Super Specialty Hospital, Somajiguda, where she underwent treatment as in-patient and succumbed to the injuries, while undergoing treatment on 26.04.2002. Immediately, after the accident, the same was reported to Banjara Hills Police Station, which initially registered as a case in Crime No.13 of 2002 for the offence punishable under Section 337 I.P.C. and later, converted to an offence punishable under Section 304-A of I.P.C. Thus, the accident occurred only due to rash and negligent act of the driver of car bearing No.AP- 13E-456.
4. The deceased Kartika was aged 36 years, at the time of accident, hale and healthy and carrying on business as partner in M/s. Sports Unlimited for distribution of ESPN and Sports Channels in Andhra Pradesh and used to earn an amount of Rs.6,000/- p.m. towards salary and also used to look after her household duties. Thus, in all, deceased Kartika used to earn an amount of Rs.10,000/- p.m. and contribute the same for the maintenance of her family members, and on account of her untimely death, the petitioners, being minor children, lost their love, motherly affection and future support.
5. The 1st respondent being owner and 2nd respondent being insurer of Car bearing No.AP-13E-456 and as such the policy of insurance was subsisting as on the date of accident, both the respondents are jointly and severally liable to pay compensation.
6. The 1st respondent remained ex parte.
7. The 2nd respondent filed counter denying material allegations of the petition inter-alia contending that the accident not occurred in the manner as pleaded by the petitioners – claimants, and also denied occurrence of accident due to rash and negligent driving of the driver of the Ford Icon car and denied incurring of medical expenditure at Rs.15,00,000/- and called upon the petitioners – claimants to prove the medical expenses, age and income of deceased Kartika.
8. It is further contended that the driver of Car was not holding valid and effective driving license to drive the car, at the time of accident, thereby handing over the car to the driver, who was not holding valid and effective driving license, amounts to breach of terms and conditions of the insurance policy, and therefore the petitioners – claimants are not entitled to claim any compensation against the 2nd respondent. It is further contended that the compensation claimed by the petitioners – claimants is excessive, exorbitant and finally prayed to dismiss the petition.
9. Basing on the above pleadings, the Tribunal framed the following issues:
1. Whether the accident in question took place on 06.01.2002 due to rash and negligent driving of the car bearing No.AP-13E-456 by its driver?
2. Whether the petitioners are entitled to compensation? If so, to what amount and from whom?
3. To what result?
10. During course of enquiry, on behalf of the petitioners - claimants, PWs.1 to 4 were examined and Exs.A-1 to A-14 and Ex.X-1 were marked. On behalf of the 2nd respondent, RWs.1 and 2 were examined and Exs.B-1 to B-4 were marked.
11. Upon hearing argument of both the counsel, considering oral and documentary evidence available on record, the Tribunal awarded compensation of Rs.6,28,000/- together with interest at the rate of 7.5% p.a., under various heads, believing that the accident occurred due to rash and negligent act of the driver of Car bearing No.AP-13E-456 and directed both the respondents, jointly and severally liable, to pay the compensation.
12. Dissatisfied with the quantum of compensation awarded by the Tribunal, petitioners – claimants, being minors, filed Appeal in M.A.C.M.A. No.1047 of 2010 questioning the adequacy of compensation on various grounds mainly contending that the amount of compensation awarded by the Tribunal is too low and the Tribunal failed to take into consideration the total earning of deceased and consider the medical evidence produced before the Tribunal, in proper perspective; and in fact, the medical bills produced before the Tribunal amounts to Rs.13,00,000/-, but the same was not considered by the Tribunal and awarded lesser amount of compensation and, prayed to allow the Appeal granting total compensation of Rs.43,00,000/-.
13. Per contra, learned Standing Counsel appearing for the 2nd respondent – Insurance Company questioned the award on the ground that the insurance policy, insofar as the passengers traveling in the car, covers the risk only up to Rs.50,000/- and, therefore, the liability of 2nd respondent – Insurance Company is limited, but without taking into consideration the limited liability, the Tribunal erroneously passed the impugned award for Rs.6,28,000/- and finally prayed to allow the Appeal setting-aside the impugned award limiting its liability to Rs.50,000/- for the death of Kartika in the road accident.
14. During course of argument, both the counsel reiterated the grounds urged in the respective appeals.
15. Considering rival contentions, perusing the material available on record, the points that arise for consideration, in these appeals are as follows :
1) Whether the liability of 2nd respondent – Insurance Company be limited to Rs.50,000/-?
2) Whether the compensation awarded by the Tribunal is too law? If so, to what amount the petitioners – claimants are entitled?
16. POINT No.1: The minor children of deceased Kartika dissatisfied with the quantum of compensation preferred the appeal in
M.A.C.M.A. No.1047 of 2010 contending that they are entitled to claim entire compensation claimed by them in the petition but the Tribunal awarded compensation at a low rate; but the main contention of learned standing counsel appearing for the 2nd respondent - Insurance Company is that liability is limited to Rs.50,000/- under the policy in the grounds of Appeal. In fact, no such plea was raised in the entire written statement filed by the 2nd respondent - Insurance Company before the Tribunal and for the 1st time, this plea is raised in the Appeal without any factual foundation to such plea. Apart from that, the Insurance Company got examined its Assistant Manager as RW.1, who filed his affidavit under Order 18 Rule 4 of C.P.C. and the same is treated as his examination-in-chief by the Tribunal. In the entire evidence he did state nothing about the limited liability of the Insurance Company to Rs.50,000/-, but in his cross-examination, he admitted that he has no personal knowledge about the accident while admitting insurance of the vehicle with the Company. The Sub- Inspector of Police was examined as RW.2, who testified about manner of accident, but it is not relevant since rashness and negligence and occurrence of accident due to rash and negligent act of the driver of the Car was not questioned by the 2nd respondent – Insurance Company in this Appeal. Therefore, the evidence of RW.2 is totally irrelevant for deciding the present controversy.
17. In New India Assurance Company Limited Vs. C.M. Jaya
[1]
and others , when similar situation came up before the Apex Court, the Apex Court limited the liability of the Insurance Company to Rs.50,000/- and held as follows :
“In the case of Insurance company not taking any higher liability by accepting a higher premium for payment of compensation to a third party, the insurer would be liable to the extent limited under Section 95(2) of the Act and would not be liable to pay the entire amount. The deceased was riding the pillion seat of a two-wheeler when it met with a truck insured by the appellant-Insurance Company by comprehensive insurance policy. It is not the case that any additional or higher premium was paid to cover unlimited or higher liability than the statutory liability fixed as found in the term of the policy and copy of the insurance policy produced before the Court shows that the liability of the Insurance company is limited to Rs.50,000/-. The liability of the Insurance Company was not unlimited merely on the ground that the insured had taken a comprehensive policy i.e., the truck was covered by a comprehensive insurance policy.”
18. However, the judgment of the Apex Court cited supra is only prior to amendment of Motor Vehicles Act, 1988. However, the principle is that if the policy is a comprehensive policy, the Insurance company is liable to pay compensation to the 3rd party, but in the instant case on hand, deceased Kartika is not a 3rd party, she was only a passenger traveling in the Car.
19. In the instant case on hand, the 2nd respondent - Insurance Company produced only certificate of Insurance but not the copy of insurance policy to find out whether the insurance policy is comprehensive policy.
20. In similar situation, the Apex Court in Oriental Insurance Company Limited Vs. Surendra Nath Loomba and others as follows at paragraphs 14 and 15 :
[2]
, held “14. We have quoted in extenso to reiterate the legal position. In the case at hand, the policy has not been brought on record. The learned counsel for the appellant-insurer would submit that it is an “Act Policy”. The learned counsel for the respondent would seriously dispute and submit that extra premium might have been paid or it may be a “Comprehensive/package Policy”. When Certificate of Insurance is filed but the policy is not brought on record it is only conveys that the vehicle is insured. The nature of policy cannot be discerned from the same. Thus, we are disposed to think that it would be appropriate to remit the matter to the Tribunal to enable the insurer to produce the policy and grant liberty to the parties to file additional documents and also lead further evidence as advised, and we order accordingly.
15. It needs no special emphasis to state that whether the insurer would be liable or not would depends upon the nature of the policy when it is brought on record in a manner as required by law.”
21. In another judgment of the Apex Court in National Insurance
[3]
Company Limited Vs. Balakrishnan and another , it was held as follows at paragraphs 21, 22 and 23 :
“21. 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 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.
22. 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.
23. In view of the aforesaid analysis, we think it apposite to set aside the finding of the High Court and the tribunal as regards the liability of the insurer and remit the matter to the tribunal to scrutinize the policy in a proper perspective and, if necessary, by taking additional evidence and if the conclusion is arrived at that the policy in question is a "Comprehensive/Package Policy", the liability would be fastened on the insurer. As far as other findings recorded by the tribunal and affirmed by the High Court are concerned, they remain undisturbed.”
22. In the facts of the judgment cited 3rd supra, the Director of the Company, who was traveling in the Car, signed as owner representing the Company on the proposal form, obtained policy, but the Tribunal and High Court held that the Insurance Company is liable, whereas the Apex Court totally set-aside the award as there is no evidence on record whether the policy is an act policy, comprehensive or package policy and nothing was discussed either by the Tribunal or by the High Court about the nature of policy and liability under the policy and remitted the matter to the Tribunal to find out whether the policy is comprehensive or package policy or an act policy, to fasten the liability on the insurer.
23. In the instant case on hand, certificate of insurance is produced before the Tribunal, which is marked as Ex.B-3, and there was no discussion by the Tribunal whether it is a comprehensive/package policy or an act policy to limit the liability of the Insurance Company and apart from that, the Insurance Company collected premium of Rs.50/- only covering the risk of un-named passengers traveling in the car, but the terms and conditions of the policy were not brought on record before this Court.
24. If the principles laid down in Surendra Nath Loomba (2nd supra) and Balakrishnan (3rd supra) are applied to the present facts of the case, the matters must necessarily be remitted back to the Tribunal to find out whether the policy is comprehensive/package policy or an act policy permitting both the parties to adduce evidence, more particularly, producing the Insurance policy including the proposal made by the Insured to the Insurance Company. Moreover, the principle laid down by the Larger Bench of the Apex court in C.M. Jaya (1st supra) cannot be made applicable for the reason that there is lot of change after amendment to Motor Vehicles Act, 1985, but the instant policy was issued after amendment to Motor Vehicles Act, 1985. Hence, we find that it is apposite to remand the matters with the same direction issued by the Apex Court in Balakrishnan (3rd supra).
25. In view of the aforesaid analysis, we set-aside the finding of the Tribunal as regards the liability of the insurer and remit the matters to the Tribunal to scrutinize the policy in a proper perspective and, if necessary, by taking additional evidence, and if the conclusion is arrived at that the policy in question is a “Comprehensive/Package Policy”, the liability would be fastened on the insurer.
26. POINT No.2: As the matters are remanded to the Tribunal permitting to the Tribunal to receive additional evidence directing the second respondent – Insurance Company to file the insurance policy and proposal form submitted by the insured and adduce further evidence, if any, with regard to liability of the Insurance Company. In
view of the same, the petitioners - claimants and 2nd respondent - Insurance Company is at liberty to raise any objections with regard to quantum of compensation before the Tribunal.
Accordingly, both the Appeals are disposed of.
In consequence, Miscellaneous Petitions, if any, pending in these Appeals, shall stand closed. No order as to costs.
ASHUTOSH MOHUNTA, J Date: 29-04-2014.
Dsh M. SATYANARAYANA MURTHY, J HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA AND HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY
M.A.C.M.A. Nos.1047 AND 1219 OF 2010
(Common Judgment of the Division Bench delivered by Hon’ble Sri Justice M. Satyanarayana Murthy)
Date. 29-04-2014
DSH
[1] AIR 2002 SC 651
[2] AIR 2013 SC 483
[3] AIR 2013 SC 473