Oriental Insurance Company Limited vs Maroti And Ors

M.G. Giratkar, J

The present appeal is against the judgment of Motor Accident Claims Tribunal, Kelapur in Motor Accident Claim Petition No.61 of 2009.

The fact which is not in dispute is that on 27Â11Â2008, deceased Shatrughan was going to his home at village Zuli from Pandharkawada with his

friend Vikas Kudmethe. He was a pillion rider on motor cycle of his friend who was driving motor cycle bearing registration No.MH29/UÂ3811. His

friend i.e respondent no.2 drove the said motor cycle in a rash and negligent manner.

When it reached near DaheliÂTanda, motorcycle bearing registration No. MHÂ29/QÂ4624 came from opposite direction. The said motor cycle was

driven by respondent no.1 in a rash and negligent manner. The riders of both the motorcycles could not control their respective vehicles and there was

head on collusion between the motorcycles. The deceased died on the spot.

The report was lodged. Crime No.146 of 2008, for the offences under Sections 279 and 304ÂA of the Indian Penal Code, 1860, was registered at

Police Station Pandharkawada against respondent nos. 1 and 2. The vehicle of respondent no.2 was insured with respondent no.4 (in Claim Petition).

The claimants have filed Claim Petition for grant of compensation in respect of death of his son Shatrughna. The respondents appeared before the

Court. The appellant/Insurance Company filed written statement and denied the claim on the ground that the deceased was pillion rider and the

premium in that respect was not paid by the owner of the vehicle. Therefore, the Insurance Company will not liable to pay amount of compensation.

After hearing both the sides, the Tribunal allowed the petition and directed the respondents to pay the amount of compensation of Rs. 3,59,000/Â​.

The appellant i.e respondent no.4 filed the present appeal solely on the ground that the premium of pillion rider was not paid by the owner of

motorcycle and therefore, the insurance Company is not liable to pay amount of compensation.

Heard learned Advocate Shri Anthony for the appellant. He has pointed out the judgments in case of New India Assurance Company Ltd vs

Babashaeb Anna Mali and others, reported at AIR 2002 Bombay 27 and in case ofO riental Insurance Co. Ltd vs Sudhakaran K.V. and others,

reported at 2008 ACJ 2045. In both the cited judgments which held that the premium in respect of pillion rider was not paid by the owner, then the

Insurance Company is not liable to pay the compensation.

Heard learned Advocate Shri Awachat for respondent nos. 1 and 2. He has submitted that the appellant has not adduced any evidence before the

Tribunal. The burden lies on the Insurance Company to establish his defence in order to avoid its liability to pay compensation in respect of vehicle

which was insured. Learned Advocate further pointed out the decision in the case of The Divisional Manager, New India Assurance Company Ltd vs

Vandana wd/o Prabhakar Gaigol and others, reported at 2015(7) ALL MR 407. This Court has held that the burden lies on the Insurance Company to

prove his defence. In absence of any evidence, the Insurance Company cannot avoid it's liability to pay compensation to third party. The insurance

policy is not disputed by both the sides. The Insurance Policy Cover Note is at ExhibitÂ39 and the policy filed by the Insurance Company though not

exhibited is on record. There is no dispute that the Insurance policy vide Cover Note (ExhibitÂ39) is a comprehensive policy. The learned Advocate

Shri Awachat further submitted that in case of comprehensive policy it is the liability of the Insurance Company to pay compensation. In support of his

submission he has placed on record judgment of the Hon'ble Supreme Court in the case of Jagtar Singh alias Jagdev Singh vs Sanjeev Kumar and

others, reported at (2018) 15 SCC 189. In this judgment the Hon'ble Apex Court has held, in paragraph 26, as under :Â​

“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 Policyâ€. 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 Policyâ€, the liability would be covered. These aspects

were not noticed in the case of Bhagyalakshmi 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.â€​

In view of the recent judgment of the Hon'ble Apex Court in the case of Jagtar Singh alias Jagdev Singh vs Sanjeev Kumar and others (supra), it is

clear that when the comprehensive policy is issued by the Insurance Company, it is the duty of the Insurance Company to pay the amount of

compensation to the claimants. Hence, the impugned judgment is perfectly legal and correct. The appeal is devoid of any merit. Hence, the same is

dismissed with no order as to costs.

Learned Advocate Shri Awachat for respondent nos. 1 and 2, has submitted that the amount of compensation deposited before this Court be given

to respondent nos. 1 and 2. In view of the dismissal of appeal, the amount of compensation deposited before this Court be paid to respondent nos. 1

and 2 along with accrued interest, if any.