Kabla Singh vs Kailash Kumari And Ors

Javed Iqbal Wani, J

In the instant appeal, challenge is thrown to award dated 13.11.2006 passed by the Motor Accident Claims Tribunal, Udhampur (hereinafter referred to as the “Tribunal”) in claim titled as, “Kailash Kumari and ors. Vs. the Branch Manager and ors.”

The facts emerging from the instant appeal would reveal that the respondents herein filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short the, “Act”), claiming compensation therein in respect of death of one Birbal Sharma (the husband of respondent 1 and father of respondents 2 and 3) having died in a vehicular accident on 09.10.1998. Besides impleading the Insurance Company-respondent 4 herein as party respondent 1 in the claim petition, the present appellant came to be impleaded as respondent 2 as the owner of the Scooter being driven by respondent 2 with the deceased as a pillion rider thereon.

In response to the notice issued by the Tribunal in the claim petition, the respondent being appellant and respondent 4 herein entered their appearance and contested the claim petition. The respondent 1-Insurance Company in the claim petition, inter-alia, stated in its objections that the driver of the offending vehicle was not possessed of a valid driving licence at the time of alleged accident and, as such, not liable to indemnify the insured. It came to be further stated by the Insurance Company in its objections by way of preliminary objections that the deceased was travelling as a pillion rider on the offending vehicle and the risk of pillion rider is not covered under the insurance policy, as such, it is not liable to indemnify the insured on account of death of the pillion rider.

The respondent 2-appellant herein in response to the claim petition in his objections admitted that the deceased was a pillion rider on the Scooter being driven by him, yet alleged that the deceased did not die because of his alleged rash and negligent driving, but on account of hitting of the Scooter in question by a truck having been driven rashly and negligently, whereabouts of which truck could not be traced.

The Tribunal on the pleadings of the parties, framed following four issues:-

“(I) Whether the deceased-Birbal Sharma, has died in a road accident caused by rash and negligent driving of offending scooter No. 1086/JK14 by respondent No. 2-Kabla Singh owned by him and insured by respondent No. 1 on 09.10.1998 at Bikhan Galla on NHW in village Mand? (OPP)

(II) In case Issue No. 1 is proved in affirmative whether the petitioners are entitled to receive compensation if so, to what extent and from whom? (OPP)

(III) Whether the driver of the offending vehicle was not holding a valid driving licence at the time of the accident as such respondent No. 1 is not liable to indemnify the owners? (OPP)

(IV) Relief.”

The claimants/respondents 1 and 2 examined three witnesses besides the claimant/respondent 1 herein appearing as her own witness, whereas respondent-Insurance Company produced one witness, namely, Kuldeep Raj. The respondent 2/appellant herein, however, did not produce any evidence, whereafter the Tribunal consequently passed the impugned award, directed to be payable by respondent 2/appellant herein on the premise that as per the terms and conditions of the insurance policy, the risk of pillion rider was not covered.

The appellant has thrown challenge to the impugned award on the grounds urged in the claim petition.

Heard learned counsel for the parties and perused the record.

Learned counsel for the appellant while making his submissions in line with the grounds urged in the petition would pray for setting aside of the award. On the contrary, learned counsel appearing counsel for the respondents while opposing the contentions of the learned counsel for the appellant would pray for dismissal of the appeal.

It is significant to mention here that the appearing counsel for the appellant would lay emphasis on the ground that the Tribunal failed to frame an issue on the important plea raised by the respondent-Insurance Company that the pillion rider was not covered in the insurance policy and without framing such an issue, the Tribunal saddled the appellant with the liability of paying compensation to the claimants-respondents herein, more so, in absence of any specific credible evidence in this regard produced by the respondent-Insurance Company before the Tribunal inspite of the fact that appellant herein did not produce any evidence in rebuttal thereto. Learned counsel would further contend that nothwithstanding that the Tribunal was required to address the said question keeping in mind the rights and interests of the parties, inasmuch as, the nature of controversy.

It is significant to mention here that the Chapters XI and XII of the Act of 1988 relate to the grant of compensation having been enacted in order to achieve the purpose and object stated therein. Section 146 of the Act lays down the requirements for insurance against third party risk, for which an insurance policy is mandatorily required to be taken out, whereas Section 147 of the Act relating to requirements of policies and limits of liability being relevant and germane herein is extracted herein for reference and convenience:-

“147. Requirements of policies and limits of liability. (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-

(a) is issued by a person who is an authorised insurer; and

(b) insures the person or classes of persons specified in the policy to the extent specified in Sub-Section (2)-

(i) against any liability which may be incurred by him in respect of the death of or bodily [injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;

(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:-

Provided that a policy shall not be required-

(i) 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 (8 of 1923) in respect of the death of, or bodily injury to, any such employee-

(a) engaged in driving the vehicle, or

(b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or

(c) if it is a goods carriage, being carried in the vehicle, or

(ii) to cover any contractual liability.

Explanation.-For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.

(2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:-

(a) save as provided in clause (b), the amount of liability incurred;

(b) in respect of damage to any property of a third party, a limit of rupees six thousand:-

Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier.

(3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases.

(4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe.

(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.”

A bare perusal of the provision (supra) would suggest that there are two types of insurance policies, viz, one statutory in nature and the other contractual in nature. A statutory policy is also named as “Act Policy” and covers only those risks, which are mandatorily required to be covered in terms of the provisions contained under Section 147 of the Act (supra). The contractual policy (supra) also termed as “Package Policy or Comprehensive Policy” is taken by the insured for covering additional risk on payment of extra premium. The aforesaid position has also been elaborated by the Apex Court in case titled as, “National Insurance Company Limited vs. Balakrishnan and Another, reported in 2013 (1) SCC 731” while taking note of Circular dated 16.09.2009 issued by the Insurance Regulatory Development Authority (IRDA) and held as under:-

“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…………….”

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Keeping in mind the aforesaid position of law and reverting back to the case in hand, it is not in dispute that the Insurance Company-respondent 2 herein, before the Tribunal took a specific plea that the deceased was travelling as a pillion rider on the offending vehicle and that the risk of pillion rider was not covered in the insurance policy, as such, it was incumbent upon the Tribunal to have framed an issue in this regard, in that, such a defence set up by the Insurance Company have had an effect on the rights and interests of the insured-the appellant herein, as the provisions of the Act leaves no manner of doubt that the Claims Tribunal is a judicial/quasi-judicial authority, clothed with powers to determine and adjudicate upon the disputes between the parties on merits fairly and objectively while possessing the trapping of a Court. The framing of an issue in a Claim Petition filed under the Act though not mandatory being a proceeding summary in nature, yet ought to have been framed in the instant case by the Tribunal once it chose to frame the same, as for an adjudicatory authority, be it judicial or quasi-judicial, it is the issues framed and not the pleadings that guides the parties in the matter of leading evidence and the framing of issues is of utmost necessity.

The Tribunal, on one hand, having failed to frame an issue in respect of the defence set up by the respondent-Insurance Company qua non-coverage of the pillion rider, on the other hand, has in a mechanical and casual manner believed the said defence set up by the respondent-Insurance Company on the basis of the statement of the witness-Kuldeep Raj produced by the respondent-Insurance Company, who did not prove the contents of the insurance policy in this regard, but merely made an oral statement without indicating and spelling out in the insurance policy that the same did not cover a pillion rider, so much so, the Tribunal also in a cursory manner has proceeded on the basis of the said statement of said Kuldeep Raj, believing the same to be a gospel truth on the premise of drawing adverse inference against the respondents on the ground that the said evidence has not been rebutted.

The perusal of the impugned award and record on the File would tend to show that the Tribunal has rightly and appropriately settled and decided the issues framed by it having regard to the facts and circumstances of the case, inasmuch as, the material before it, insofar as the claim of the claimants is concerned as well as the award of compensation they were found entitled thereto and though the impugned award does not call for interference as such, yet seemingly, the matter has not received appropriate consideration by the Tribunal in respect of the defence set up by the Insurance Company-respondent herein qua the non-covering of insurance cover of the pillion rider is concerned, thus, necessitating remanding of the matter back to the Tribunal with a direction to frame an issue on the defence set up by the Insurance Company-respondent that the pillion rider was not covered in the insurance policy in question and decide the said issue accordingly.

For the foregoing reasons, the instant appeal is disposed of with a direction to the Tribunal to frame an issue, as directed above and decide the same preferably within a period of two months from the date a copy of this order is produced by either of the parties before it. The decision in the said issue shall determine the question of fixing of liability amongst the appellant herein and the respondent-Insurance Company herein. It is made clear that the impugned award in respect of the amount of compensation awarded to the claimants-respondents herein shall stand upheld.

Appeal is, accordingly, disposed of.