{"id":60727,"date":"2008-10-20T00:00:00","date_gmt":"2008-10-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/icici-vs-gitaben-on-20-october-2008"},"modified":"2016-07-11T22:37:01","modified_gmt":"2016-07-11T17:07:01","slug":"icici-vs-gitaben-on-20-october-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/icici-vs-gitaben-on-20-october-2008","title":{"rendered":"Icici vs Gitaben on 20 October, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Icici vs Gitaben on 20 October, 2008<\/div>\n
Author: H.K.Rathod,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nFA\/5007\/2008\t 1\/ 53\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nFIRST\nAPPEAL No. 5007 of 2008\n \n\n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n \n\nICICI\nLOMBARD GENERAL INSURANCE CO LTD - Appellant(s)\n \n\nVersus\n \n\nGITABEN\nRAMESHBHAI GOHEL & 3 - Defendant(s)\n \n\n=========================================================\n \nAppearance\n: \nMS\nMEGHA JANI for\nAppellant(s) : 1, \nNone for Defendant(s) : 1 -\n4. \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.K.RATHOD\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 20\/10\/2008 \n\n \n\n \n \nORAL\nORDER<\/pre>\n
1.\tHeard
\nlearned advocate Ms.Megha Jani for the appellant ?  Insurance Co.\n<\/p>\n
2.\tIn
\nthe present appeal, the appellant ?  Insurance Co. has challenged
\nthe award passed by MAC Tribunal (Main), Kheda at Nadiad in MACP
\nNo.475 of 2007 dated 19.6.2008 whereby the claims Tribunal has
\nawarded Rs.2,75,800\/- with 9% interest in favour of respondents
\nclaimants.\n<\/p>\n
3.\tLearned
\nadvocate Ms.Megha Jani has raised contention that claims Tribunal has
\ncommitted gross error in not considering fact that deceased was
\ntravelling as a pillion rider on the motor-cycle at the time of
\naccident and also not appreciated policy which was not covering the
\nrisk of pillion rider. She also submitted that additional premium was
\nnot paid to cover the risk of pillion rider and therefore,  appellant
\n?  Insurance Co. is not liable to pay compensation. She also
\nsubmitted that appellant ?  Insurance Co. is not liable when risk is
\nnot covered in the policy. She has placed reliance on the decision of
\nApex Court in case of United India Assurance Co. Ltd. v. Tilak Singh
\nand others<\/a> reported in 2006 (4) SCC 404 and also in case of Oriental
\nInsurance Co. Ltd. v. Sudhakaran K.V. And others<\/a> reported in 2008 (7)
\nSCC 428. She further pointed out from the policy that risk of pillion
\nrider is not covered as only Rs.300\/- basic premium was paid by
\ninsured. Therefore, she submitted that claims Tribunal has committed
\ngross error in awarding compensation in favour of  respondents
\nclaimants.\n<\/p>\n
4.\tThis
\naspect has been examined by the claims Tribunal in Para.10, 11 and 12
\nin the award which is quoted as under :\n<\/p>\n
?S10.\t\tSo
\nfar as the liability is concerned, it is an admitted  fact that the
\ndeceased Rameshbhai Shivabhai Gohel was pillion rider on the vehicle
\nbike bearing No.GH.7.Q.5945. The Ld. Advocate appearing on behalf of
\nthe insurer has vehemently contended that in the case of the pillion
\nrider the Insurance Co. is not liable to satisfy the awarded amount
\nand prayed for dismissal of the claim petition as against the
\ninsurer. As regards this, if we consider the policy produced by the
\nclaimant at mark-5\/6 it would reveal that the policy has been taken
\nin comprehensive nature, therefore, insurer is liable to indemnify
\nthe insured of the vehicle.\n<\/p>\n
11.\t\tFurthermore,
\nin case of ?SNaynesh H. Nanavati v. Dashrath R. Bhagat & Ors<\/a>??
\nreported in ‘2007 (1) GLR Page No.567??, wherein, it has been
\nobserved that the passenger in private car took note of direction of
\ntariff advisory committee to all the insurer that the tariff advisory
\ncommittee has taken a decision relating to clause-1 of Section-II(a)
\nof the Motor Car comprehensive policy.  As per the said ratio all the
\ninsurer were asked to add the following words, ?Safter the words
\ndeath or bodily injury to any person including motor car providing
\nthat such occupants are not carried for hire or reward. When this is
\nthe position within the risk of gratuitous passenger travelling in
\nprivate vehicle stand adequately covered??. Thus, considering this
\npronouncement of the Hon’ble High Court the pillion rider is also one
\nof the occupant in the motor cycle bearing No.GJ.7.Q.5945. It is also
\nadmitted fact that the pillion rider is not carried in the vehicle
\nfor hire or reward, then in that case if the policy of the vehicle is
\nin nature of the comprehensive one, then the insurer is liable to
\nsatisfy the occupant of the vehicle, thus I do not agree with the
\nsubmission advanced by the ld. Advocate appearing on behalf of the
\ninsurer.\n<\/p>\n
12.\t\tThus,
\nas per the policy particulars Mark-5\/6 the commencement of the policy
\nis from 13.4.2007 and expired on 12.4.08 while the accident was
\noccurred on 29.10.2007,\u00a0meaning thereby the policy was in force
\nat the time of the accident, therefore, all the opponents, jointly
\nand severally liable to satisfy the awarded amount with proportionate
\ncost and interest at the rate of 9% per annum as per the ratio laid
\nin the case of ?SKAUSHNUMA BEGUM V. NEW INDIA ASSURANCE COMPANY
\nLTD.<\/a>?? reported in 2001 (1) Supreme-5, and I pass the following
\nfinal order.??\n<\/p>\n
5.\tThe
\nclaims Tribunal has considered the decision of this Court in case of
\nNaynesh H. Nanavati v. Dashrath R. Bhagat & Ors<\/a>?? reported in
\n‘2007 (1) GLR Page No.567. The aforesaid aspect has been considered
\nby Division Bench of this Court in case of  Harshvardhatiya
\nRudraditya (by his next friend and guardian) Govindbhai D. Parmar &
\nOrs. v. Jyotindra Chimanlal Parikh & anr. Reported in 1981 GLR
\n(22) 555. The aforesaid decision of Division Bench of this Court, has
\nbeen considered in FA No.2019 of 1982 with FA No.131 of 1983 dated
\n19.4.1995.\n<\/p>\n
6.\tThe
\nquestion is that in comprehensive policy, the Tariff Advisory
\nCommittee has directed to all the insurer that  Tariff Advisory
\nCommittee has taken a decision relating to clause-1 of Section-II(a)
\nof the motor car comprehensive policy and as per said ratio, after
\nthe words death or bodily injury to any person including motor car
\nproviding that such occupants are not carried for hire or reward.
\nWhen this is the position within the risk of gratuitous passenger
\ntravelling in private vehicle stand adequately covered. Learned
\nadvocate Ms.Megha Jani submitted that additional premium was not paid
\nand therefore, risk of pillion rider is no covered. The pillion rider
\nis not the third patty within the meaning of Section 147 of the MV
\nact and also is not included in ‘ any person’ and therefore, the risk
\nof pillion rider is not covered under the policy and therefore,
\nInsurance Co. is not duty bound to pay  compensation to claimant.\n<\/p>\n
7.\tThis
\naspect has been considered by Division Bench of this Court in case of
\n  Harshvardhatiya Rudraditya (by his next friend and guardian)
\nGovindbhai D. Parmar & Ors. v. Jyotindra Chimanlal Parikh &
\nanr. reported in 1981 GLR (22) 555. Relevant observations of the said
\ndecision are in Para.10 and 11 which is quoted as under :\n<\/p>\n
?S10.\tThe
\nquestion that arises for consideration now is regarding the extent of
\nliability of the Insurance Company. The Insurance Company has filed a
\njoint written statement and has adopted the defence raised by the car
\nowner and has not pleaded any special defence.  It is, however,
\ncontended by learned counsel for the Insurance Company that
\nnotwithstanding the fact that there is no pleading, the Insurance
\nCompany should be permitted to raise the defence that Ranvir was a
\ngratuitous passenger and in view of the decision of the Supreme Court
\nin Pushpabai Parshottam Udeshi and Others v. M\/s. Ranjit Ginning &
\nPressing Co. Pvt. Ltd. and Another, A.I.R.<\/a>
\n1977 SC 1735 the Insurance Company was not liable in regard to this
\nclaim.  The learned Counsel for the claimants as also learned Counsel
\nfor the car owner have opposed the request made by the Counsel for
\nthe Insurance Company in this behalf.  The point sought to be raised
\nby learned Counsel for the Insurance Company does not involved any
\nmixed question of law and facts.  On admitted facts it is established
\nthat Ranvir was travelling in the Car in his capacity as a friend of
\nJyotindra.  It is therefore, clear that he was a gratuitous
\npassenger.  Since the law on the point has been settled, it would not
\nbe proper on our part to refuse the permission sought by the
\nInsurance Company to raise this point.  Of course this plea was not
\nraised in the trial Court and it does not arise out of the pleadings.
\n But then there is no point in insisting on a formal amendment of the
\nplaint in view of the fact that admittedly Ranvir was a gratuitous
\npassenger and the legal position is also not in dispute.  Under the
\ncircumstances, we are of the opinion that the Insurance Company
\ncannot be prevented from advancing this point at the stage of appeal.
\n It, however, does not mean that the Insurance Company is wholly
\nabsolved of the liability.  Learned Counsel for the claimants and
\nlearned Counsel for the car owner have relied on Oriental
\nFire & General Insurance Co. Ltd. v. Ganchi Ramanlal Kantilal and
\nOrs,<\/a> 20 G.L.R. 134, in support
\nof their contention that the case would be covered by sec.95 (2) (c)
\nof the Motor Vehicles Act and the liability of the Insurance Company
\nto the extent of Rs.15,000\/- as stipulated in the Policy of Insurance
\nwould remain.  The Insurance Policy is a comprehensive policy as per
\nEx.145.  Clause I M.T.5 provides –\n<\/p>\n
?SIn
\nconsideration of the payment of an additional premium it is hereby
\nunderstood and agreed that the Company undertakes to pay compensation
\non the scale provided below for bodily injury as herein after defined
\nsustained by any passenger other than the insured and\/or his paid
\ndriver attendant and\/or a person in the employ of the insured coming
\nwithin the scope of the Workmen’s Compensation Act, 1923 and
\nsubsequent amendments of the said Act and engaged in and upon the
\nservice of the insured at the time such injury is sustained whilst
\nmounting into dismounting from or travelling in but not driving the
\nMotor Car and caused by violent accidental external and visible means
\nwhich independently of any other cause shall within three calendar
\nmonths of the occurrence of such injury result in-<\/p>\n
\n \n\n\n \n\n\n \n\n\n   Scale\nof compensation\n \n\t  \n\n\n\tDeath\t\t\t........\t\tRs.15,000.00\n\t  \n\n\n\t ......\t\t\t........\t\t\t\t?S\n\n \n\n\n\t\n......\t\t\t........\t\t\t.............\n \n\n\n11.\tThe\n<\/pre>\n
aforesaid clause is precisely in the same terms as the policy in the
\ncase of the  Oriental Fire & General Insurance Co. Ltd.
\n(supra) and in view of the ratio of the said decision the
\nliability of the Insurance Company to this extent cannot be disputed.
\n Under the circumstances we hold the Insurance Company liable to the
\nextent of Rs.15,000\/-.  But the mater does not rest there.  The
\nlearned Counsel for the claimants has placed on record a
\ncommunication issued by the Tariff Advisory Committee, Bombay
\nRegional Committee, to the Insurers carrying on General Insurance
\nBusiness in the Bombay Region only.  It is in the following terms-\n<\/p>\n
\t\tTARIFF
\nADVISORY COMMITTEE<\/p>\n
\t\tBOMBAY
\nREGIONAL COMMITTEE<\/p>\n
\tCircular
\nM.V. No.1 of 1978. Bombay  17th March 1978.\n<\/p>\n
INSURANCE
\nCOMPANY’S LIABILITY IN RESPECT OF GRATUITOUS PASSENGERS CONVEYED IN A
\nPRIVATE CAR ?  STANDARD FORM FOR PRIVATE CAR COMPREHENSIVE POLICY ?
\nSECTION II ?  LIABILITY TO THIRD PARTIES.\n<\/p>\n
\tI
\nam directed to inform Insurers that advices have been received from
\nthe Tariff Advisory Committee to the effect that since the industry
\nhad all these years been holding the view liability the same
\npractical shall continue.\n<\/p>\n
\tIn
\norder to make this intention clear, Insurers are requested to amend
\nclause 1 (a) of section II of the Standard Private Car Policy by
\nincorporating the following words after the words ?Sdeath of or
\nbodily injury to any person?? appearing therein:\n<\/p>\n
\tIncluding
\noccupants contained in the motor car provided that such occupants are
\nnot carried for hire or reward.??\n<\/p>\n
\tI
\nam accordingly to request Insurer to make the necessary amendment on
\nsheet 38 of the Indian Motor Tariff pending reprinting of the
\nrelevant sheet.\n<\/p>\n
All
\nexisting policies may be deemed to incorporate the above amendment
\nautomatically as the above decision is being brought in to force with
\neffect from 25th March 1977.\n<\/p>\n
\t\t\t\t\t\t\t\t\tSd\/-\n<\/p>\n
Regional
\nSecretary.\n<\/p>\n
\tIt
\nis argued by Counsel that in view of this policy decision the
\nInsurance  should make full payment in the present case also, in
\ndisregard of the fact that the deceased a gratuitous passenger.
\nTaking into consideration the spirit underlying the aforesaid
\ninstruction issued by the Tariff Advisory Committee, all the insurers
\nwould be expected to adhere to the policy decision in its true
\nspirit. The policy decision had to be evolved by reason of the fact
\nthat for year the insurers were considered to be liable even in case
\nof gratuitous passengers. The situation came to be altered by virtue
\nof the decision in Pushpabai’s case (supra) rendered  on 25th
\nMarch 1977. The Insurance business having been nationalized ?  it is
\nbut reasonable  to expect the Insurers not to take advantage of the
\nalter situation and to continue to discharge their obligation as
\nhitherto. No doubt, the aforesaid instructions cannot be enforced in
\na MACT proceedings in the sense that we cannot direct that the
\ninsurance company shall reimburse the insured fully or that the full
\ndecree against the insured may be executed against the insurance
\ncompany as if it was a decree passed against it. We are given to
\nunderstand that the insurance company are discharging their
\nobligations as hitherto notwithstanding Pushpabai’s case. If such is
\nthe policy that is being followed in other cases, no discrimination
\ncan be made on principle in the present case. There cannot be a
\nselective application of the policy embodied in the aforesaid
\nresolution. If such a selective application were to be countenanced,
\nit would violate the mandate of article  14 of the Constitution of
\nIndia. We have, therefore, no doubt that the insurance company will
\nfollow the same policy uniformly and will not clutch at this defence
\nin the present case if the policy decision contained in the aforesaid
\ncommunication is being adhered to in other cases. In case of
\nnecessity, learned counsel for the claimants will be at liberty to
\napply to the insurance company and make a request for implementing
\nthe aforesaid policy decision in present case. It will be open to him
\nto forward a copy of this judgment in support of this request.??\n<\/p>\n
8.\tThe
\naforesaid decision in case of Harshvardhatiya Rudraditya (Supra) has
\nbeen relied upon by Division Bench in FA No.2019 of 1082 with FA
\nNo.131 of 1983 decided on 19.4.1995. The relevant observations of
\nsaid decision is in Para.13, 14, 15 and 16 which are quoted as under
\n:\n<\/p>\n
      ?S13.\n<\/p>\n
 For this purpose it is necessary to refer to  the
\n       provisions  of  sec.95 of the Act and the decision of the
\n      Supreme Court in the case of Pushpahai  Parshottam  Udshi
\n      vs.  Ranjit Ginning  & Pressing Co.  Pvt.  Ltd., reported
\n      in AIR 1977 SC 1735.    In  that  case  interpreting  the
\n      provisions  of  sec.95(1)(d)(1)  of  the  Act the Supreme
\n      Court held that there was  no  requirement  of  statutory
\n      provision  that  the policy of insurance should cover the
\n      risk of passengers who  were  not  carried  for  hire  or
\n      reward.   The  plea that the words “third party” are wide
\n      enough to cover all persons except the  insured  and  the
\n      insurer.  After referring to the provisions of sub-clause\n<\/p>\n
      (ii) the Supreme Court held as follows :\n<\/p>\n
 \t        “Therefore,  it  is not required that a policy of
\n              insurance should cover risk to the passengers who
\n              are not carried for hire or  reward.    As  under
\n              sec.95  the  risk to a passenger in a vehicle who
\n              is not carried for hire or reward is not required
\n              to be insured the plea of  the  counsel  for  the
\n              insurance  company  will  have to be accepted and
\n              the insurance company held not liable  under  the
\n              requirements of the Motor Vehicles Act.”\n<\/p><\/blockquote>\n
      14.\tIn  that  case  it was further contended that the
\n      insurer can always issue policies  covering  risks  which
\n      are not  covered  by the requirements of sec.95.  In that
\n      light the Supreme Court considered sec.II of  the  policy
\n      relating to liability to third parties.  It was contended
\n      that clause (a) of sec.II of the policy provided coverage
\n      in  respect of “death of or bodily injury to any person”,
\n      and it was submitted that the wording was wide enough  to
\n      cover  all the risks including injuries to passengers, on
\n      the construction of clause (a) which reads as follows :\n<\/p>\n
 \t        “(a)\t    death of or bodily injury to  any  person
\n              but  except  so  far  as is necessary to meet the
\n              requirements of sec.95 of the Motor Vehicles Act,
\n              1939, the Company shall not be liable where  such
\n              death  or  injury arises out of and in the course
\n              of the employment of such person by the insured.”\n<\/p><\/blockquote>\n
      The Supreme Court held  that  the  insurance  policy  had
\n      insured   the   owner  only  to  the  limited  extent  of
\n      Rs.15,000\/-.\n<\/p>\n
      15.\tAfter the judgment of the Supreme  Court  in  the
\n      case  of  Pushpabai (supra) dated 25th march 1977 on 17th
\n      March 1978 the Tariff Advisory Committee issued  Circular
\n      MV.  No.1 of 1978 which reads as follows :\n<\/p>\n
        \t“TARIFF ADVISORY COMMITTEE
\n\t       BOMBAY REGIONAL COMMITTEE<\/p>\n
      \t\t\tCircular  M.V. No.1 of 1978\t\tBombay
\n      \t\t\t\t\t17th March 1978<\/p>\n
    \t\t  INSURANCE   COMPANY’S  LIABILITY  IN  RESPECT  OF
\n              GRATUITOUS PASSENGERS CONVEYED IN A  PRIVATE  CAR
\n              STANDARD   FROM  FOR  PRIVATE  CAR  COMPREHENSIVE
\n              POLICY – SECTION II – LIABILITY TO THIRD PARTIES.\n<\/p>\n
\t        I am directed to inform Insurers    that  advices
\n              have  been  received  from  the  Tariff  Advisory
\n              Committee to the effect that since  the  industry
\n              had   all  these  years  been  holding  the  view
\n              liability the same practice should continue.\n<\/p>\n
       \t  In order to make this intention  clear,  Insurers
\n              are  requested to amend clause 1(a) of section II
\n              of   the   Standard   Private   Car   Policy   by
\n              incorporating the following words after the words
\n              “death   of  or  bodily  injury  to  any  person”\n<\/p>\n
              appearing therein:\n<\/p>\n
       \t  Including occupants  carried  in  the  motor  car
\n              provided  that such occupants are not carried for
\n              hire or reward.\n<\/p>\n
   \t\t  I am accordingly to request Insurers to make  the
\n              necessary  amendment  on  sheet  38 of the Indian
\n              Motor Tariff pending reprinting of  the  relevant
\n              sheet.\n<\/p>\n
  \t\t  All   existing   policies   may   be   deemed  to
\n              incorporate the above amendment automatically  as
\n              the  above  decision  is being brought into force
\n              with effect from 25th March 1977.\n<\/p>\n
      \t\t\t\t\t\tSd\/-\n<\/p>\n
      \t\t\t        \tRegional Secretary<\/p>\n
      This  circular came to be considered by Division Bench of
\n      this Court in the case of Harshvardhatiya vs.  Jyotindra,<\/a>
\n      reported in 1981 (22) GLR 555 and this Court observed  as
\n      follows :\n<\/p>\n
  \t\t  “It is argued by counsel that  in  view  of  this
\n              policy decision the Insurance Company should make
\n              full   payment  in  the  present  case  also,  in
\n              disregard of the fact that  the  deceased  was  a
\n              gratuitous passenger.   Taking into consideration
\n              the spirit underlying the aforesaid  instructions
\n              issued  by the Tariff Advisory Committee, all the
\n              insurers would  be  expected  to  adhere  to  the
\n              policy decision  in  its true spirit.  The policy
\n              decision had to be evolved by reason of the  fact
\n              that for years the insurers were considered to be
\n              liable  even  in  cases of gratuitous passengers.
\n              The situation came to be altered by virtue of the
\n              decision in Pushpabai’s case (supra) rendered  on
\n              25th March  1977.   The insurance business having
\n              been nationalised  –  it  is  but  reasonable  to
\n              expect  the Insurers not to take advantage of the
\n              altered situation and to  continue  to  discharge
\n              their obligation as hitherto.”\n<\/p>\n
      In  the  present case, the policy is issued after, and in
\n      the light of this circular on 5.12.1978  and  section  II
\n      liability of  third  parties.  The amendment suggested by
\n      the Tariff Advisory Committee is incorporated  and  given
\n      effect  to  by  the words “including occupants carried in
\n      the motor  car  provided  that  such  occupants  are  not
\n      carried  for  hire or reward” after the words ‘in section
\n      II 1(a).  It is thus clear that the insurer has not  only
\n      continued his practice of providing insurance coverage to
\n      third  parties  including  all  occupants but it has been
\n      made clear  in  spite  of  Supreme  Court’s  judgment  in
\n      Pushpabhai’s case by issuing circular for giving coverage
\n      even  under  the  existing  policies  but  also by making
\n      specific amendment in the new policies.  In  the  present
\n      case  the policy which has been issued after the circular
\n      incorporated the amendment  giving  express  coverage  to
\n      gratuitous occupants.    In  view  of this additional and
\n      express coverage given to the  occupants,  the  insurance
\n      company  is  liable  to  satisfy  the  award  against the
\n      insured.\n<\/p>\n
      16.\tLearned  counsel  for  the insurer submitted that
\n      for additional coverage additional premium  is  necessary
\n      and  without  such additional premium there cannot be any
\n      additional coverage.  Reliance is placed on the  judgment
\n      of  the  Supreme  Court in the case of National Insurance
\n      Co.  Ltd.  Jyotindra.  Jugal  Kishore,  reported  in  AIR
\n      1988 SC  719.    In that case the contention was that the
\n      insurer had  given   additional   coverage.      It   was
\n      ascertained  whether  the  rules permit such coverage and
\n      whether any additional premium was paid.  It was  in  the
\n      context  of  ascertaining  whether additional coverage is
\n      given or not that the question of additional premium  was
\n      considered.   The  Supreme  Court  came to the conclusion
\n      that there was no additional premium.  But this  judgment
\n      cannot  be  said  to  have  laid  down that no additional
\n      coverage can  be  given  in  absence  of  any  additional
\n      premium.   In  fact no additional coverage has been given
\n      in the present case because whatever coverage given prior
\n      to Pushpabai’s case has been continued  by  the  insurers
\n      without charging any extra premium.  This so called extra
\n      coverage  is  in  fact  the same coverage which was being
\n      given by all the insurers under the Act and  the  Policy.
\n      It  is  only  because of the restricted interpretation in
\n      Pushpabai’s case that the Tariff Advisory Committee  laid
\n      down   the   same  coverage  be  continued  to  be  given
\n      notwithstanding the judgment in Pushpabai’s case and  all
\n      future policies were directed to be amended so as to give
\n      coverage   to   gratuitous   passengers  by  specifically
\n      incorporating the words “including occupants”  after  the
\n      words  “any  person.” Therefore, merely because the words
\n      ‘any person’ is  made  more  explicit  by  amendment,  it
\n      cannot  be  said  that  any additional premium was called
\n      for.  Therefore, this contention raised  by  the  insurer
\n      has no merit and it must fail.\n<\/p>\n
9.\tThis Court has examined the very question in case of Naynesh H. Nanavati v. Dashrath R. Bhagat and Ors. Reported<\/a> in 2007 (1) GLR 135. Relevant observations are in Para.7 and 7.1 which are quoted as under :\n<\/p>\n
?S7.\t\tThe second aspect of it is that the Tribunal has placed reliance on the judgment of the Apex Court rendered in the case of Pushpabai [supra] and has held that even if the appellant is considered to be passenger in a private vehicle without hire or reward i.e., a gratuitous passenger, the Insurance Company would be absolved from its liability to pay the compensation. In the said decision  the Apex Court has turned down the contention advanced on behalf of the original claimant that a gratuitous passenger travelling in a private vehicle would be considered as a third party and the Insurance Company would be liable to cover such risk.  In para. 20 of the said judgment  the Apex Court has held as under :-\n<\/p>\n
?S20.\tIt
\nis unnecessary to refer to the subsequent development of the English
\nlaw and as the subsequent charges have not been adopted in the Indian
\nstatute. Suffice it to say that the Motor Vehicles [Passenger
\nInsurance] Act, 1971, made insurance cover for passenger liability
\ncompulsory by repealing paragraph (a) and the proviso of sub-section
\n203 (4). But this Act was repealed by Road Traffic Act, 1972 though
\nunder section 145 of 1972 Act the coming into force of the provisions
\nof Act 1971 covering passenger liability was delayed under December
\n1, 1972.??\n<\/p>\n
Thus,
\naccording to the  Apex Court, when the passenger, who is not
\ntravelling in the private vehicle for hire or reward, his risk is not
\ncovered. However, the Apex Court has said that the Insurance Company
\nis always at liberty to cover such risk by way of contract with the
\ninsured. In that case, the Apex Court directed the Insurance Company
\nto satisfy the liability to the extent of Rs.15,000\/- since that was
\nthe amount agreed to be covered by the Insurance Company with the
\ninsured. The Tribunal, however, has not considered the development
\nwhich has taken place after  the rendition of this judgment by the
\nApex Court.  Had that development been taken into consideration, on
\nthis issue the conclusion of the Tribunal would have been different.\n<\/p>\n
7.1.\t\tThe
\nTariff Advisory Committee has taken a decision relating to clause 1
\nof section II (a) of Motor Car Comprehensive Policy.  As per the said
\ndecision  all the insurers were asked to add the following words
\nafter the words ‘death of or bodily injury to any person’,
\n?Sincluding occupants carried in the motor car provided that such
\noccupants are not carried for hire or reward.?? The direction of
\nthe Tariff Advisory Committee to all the insurers was that said
\namendment would come into force automatically from 17\/2\/1978. The
\npresent accident took place on 16\/6\/1980. Therefore, due to the
\nretrospective effect given to this amendment, the present accident
\nwould also stand covered in the amended clause.  In the case of
\nOriental Insurance Co. Ltd.  V\/s.\n<\/p>\n
Renu Acharya   the High Court of Himachal Pradesh at Simla has dealt
\nwith this aspect. The decision is reported in 1996 ACJ at page 746.\n<\/p>\n
Whether
\nthe effect of the amendment is retrospective is also considered by
\nthe said High Court in this decision by referring to the decisions of
\nvarious other High Courts. In para. 21  it has said as under :-\n<\/p>\n
?S21.\tThis
\nquestion came up before a Bench of five Judges of the Gauhati High
\nCourt in New India Assurance Co. Ltd. v. Satyanath Hazarika, 1989 ACJ
\n 685 (Gauhati), in which the above instructions of the Tariff
\nAdvisory Committee were considered and it was held that this clause
\nwill have a retrospective effect in all cases pending before the
\nClaims Tribunals or the appellate authorities on or before 25\/3\/1977.
\nWe are in respectful agreement with the above law laid down. The same
\n view was also expressed by the learned single Judge of the Orissa
\nHigh Court in Oriental Fire & General Insu. Co. Ltd. v. Sanatan
\nPradhan, 1988 ACJ 792 (Orissa)  and also by the learned single Judge
\nof the Delhi High Court in Sagar Chand Phool Chand Jain v. Santosh
\nGupta,<\/a> 1985 ACJ 585 (Delhi).??\n<\/p>\n
Unfortunately,
\nthe learned Single Judge of Karnataka High Court in the case of
\n United India Insurance Co. Ltd. V\/s. P V Lakshmanan reported in
\n1997 ACJ p. 107 has taken the
\nsame view. The learned Judge has placed reliance on the decision
\nrendered by Punjab & Haryana High Court in the case of Kailash
\nKumar v. Bhola,  1989 ACJ 845. It has observed in paras. 11 and 12 as
\nunder :-\n<\/p>\n
?S11.\tThe
\nidentical point came up for consideration in appeal before the High
\nCourt of Punjab and Haryana in Kailash Kumar v. Bhola, 1989 ACJ 845
\n(P&H). In the case of Kailash Kumar the claimants therein were
\ngranted compensation by the Tribunal on the death of the deceased
\nbread-winner of their family who died in a motor accident. In that
\ncase also the deceased was travelling in a private car as a
\ngratuitous passenger when it met with the accident resulting in his
\ndeath. The insurance company which had issued the policy in respect
\nof the said car  therein was not held liable by the Tribunal to pay
\ncompensation to the claimants on the ground that the said policy did
\nnot cover the risk to gratuitous passenger travelling in a private
\ncar. In appeal  the High Court of Punjab and Haryana disagreed with
\nthe view taken by the Tribunal in absolving the insurance company of
\nits liability and held otherwise on the basis of the relevant
\ninstructions of the Tariff Advisory Committee issued to all insurance
\ncompanies subsequent to the Supreme Court decision in Pushpabai
\nPurshottam Udeshi’s case, 1977 ACJ 343 (SC). In the case of Kailash
\nKumar v. Bhola, 1989 ACJ 845 (P&H), the High Court of Punjab and
\nHaryana made the following material observation :\n<\/p>\n
?SLearned
\ncounsel for the respondents placed reliance on Pushpabai Purshottam
\nUdeshi v. Ranjit Ginning & Pressing Co.,<\/a> 1977 ACJ 343 (SC), in
\nsupport of the proposition that the insurance company is not liable
\nwhen the passenger is carried without hire or reward. This judgment
\ndoes not render any assistance to the learned counsel. The decision
\nof the Apex Court makes it clear that although there is no statutory
\nliability of the insurance company to pay compensation to a
\npassenger, a contract of insurance can provide otherwise. The
\ninstructions of the Tariff Advisory Committee which is a statutory
\nbody will be deemed to have been incorporated in every contract of
\ninsurance. Even if it is not expressly mentioned in the contract by
\nthe deeming provisions, the court will so read it in the insurance
\npolicy that the directions given by the Tariff Advisory Committee
\nwere incorporated in the insurance policy. After reading the
\ndirections in the insurance policy, the court will give effect to it.
\nThe judgment of the Supreme Court was rendered on the same date, when
\nthe instructions of the Tariff Advisory Committee came into force.
\nMoreover, in the Supreme Court case,  the accident had taken place on
\n18\/12\/1960 prior to the issuance of the directions of the said
\nCommittee.??\n<\/p>\n
So,
\nconcluding, the learned Judge has further proceeded to observe :\n<\/p>\n
?S……\n<\/p>\n
after issuance of the instructions of the Tariff Advisory Committee,
\nthe insurance company cannot avoid liability. The owner of the
\nvehicle can legitimately say that under the policy, the insurance
\ncompany was bound to pay to the claimants for the death of the
\npassenger. The insurance company has not let any evidence on record
\nthat its liability is limited. In the absence of any evidence, it has
\nto be held that the liability of the insurance company is unlimited.??\n<\/p>\n
12.\tThe
\nfact that the Tariff Advisory Committee has issued the said relevant
\ninstructions dated 13\/3\/1978 is not disputed by Mr. O. Mahesh,
\nlearned counsel for the appellant insurance company. As such I am in
\nrespectful agreement with the aforesaid observations of the learned
\nJudge of the Punjab & Haryana High Court made in Kailash Kumar’s
\ncase, 1989 ACJ 845 (P&H), to the effect that the said
\ninstructions of the Tariff Advisory Committee must be deemed to have
\nbeen incorporated in all the existing policies of the insurance
\ncompany on and with effect from 13\/3\/1978. These instructions will
\nhave the statutory force. By virtue of the said Tariff Advisory
\nCommittee instructions  it logically follows that the Act policy also
\ngoverns the risk to the gratuitous passengers travelling in a private
\nmotor car at the time of accident. Therefore, the finding of the
\nTribunal holding the appellant insurance company also liable to pay
\nthe compensation to the respondent-claimant cannot be held illegal or
\ninvalid. On the other hand, I find the Tribunal legally justified in
\nits said finding.??\n<\/p>\n
 When this is the position after amendment has been brought about in the policy by the Tariff Advisory Committee,  risk of gratuitous passenger travelling in a private vehicle stands adequately covered. On that count also the decision of the Tribunal is not proper and it is required to be quashed and set aside. In my opinion, on facts as well as on law, the conclusion has to be against the Insurance Company. In other words, there is no breach of conditions of the policy since in the present case the vehicle was not given for hire or reward and by virtue of the recommendation of the Tariff Advisory Committee and the amendment brought in the policy,  the Insurance Company is now required to recover the risk of even the passengers travelling not for hire or reward in a private car.  In view of the same, the decision of the Tribunal on both these counts is required to be quashed and set aside.??\n<\/p>\n
10.\tThis Court has examined similar aspect in FA No.1161 of 2008 with allied matters decided on 14.5.2008. Relevant observations of the said decision are in Para.8 to 11 which are quoted as under  :\n<\/p>\n
?S8.\t\tAs
\nagainst the above arguments for the appellant, it was submitted on
\nbehalf of the original claimants that a “Comprehensive
\nPolicy” or “Motorcycle\/Scooter Policy (B)
\nComprehensive” or a “Two Wheeler Package Policy”
\nwas essentially different from an “Act Only or Statutory
\nPolicy” or “Liability Only Policy”.\n<\/p>\n
Although it is true that additional cover  can be provided by paying
\nextra premium for different IMT endorsements, absence of any IMT
\nendorsement on the policy cannot derogate from the liability to third
\nparties as couched in Section II of the standard form for “Two
\nWheeler Package Policy”.  When that section of the policy
\nclearly and expressly provides for indemnifying the insured against
\nall sums payable by him  “to any person including occupants
\ncarried in the insured vehicle”, the insurer cannot contend
\nthat any particular endorsement was required for covering that
\nliability. Even as the words “any person” would take
\nits colour from the context in which they are used, they were given
\nthe widest meaning in Section II of the Policy to include third
\nparties as well as occupants carried in the insured vehicle,
\naccording to the submission. Even in Tilak Singh
\n(supra), it is clarified by the Supreme Court in para 21 as follows:\n<\/p>\n
“21.\t\t….Thus,
\nwe must uphold the contention of the appellant insurance company that
\nit owned no liability towards the injuries suffered by the deceased
\nRajinder Singh who was a pillion rider, as the insurance policy was a
\nstatutory policy and hence it did not cover the risk of death of or
\nbodily injury to gratuitous passenger.”\n<\/p>\n
\tIt
\nwas, on that basis, submitted that the present batch of cases being
\nbased on package policy, they were clearly distinguishable from the
\ncase of Tilak Singh (supra) and the arguments based on
\nthat case must fail.\n<\/p>\n
9.\t\tHowever,
\nlearned counsel for the appellant insisted that “Section
\nII-Liability to Third Parties” in the policy was expressly
\nsubject to limits of liability as laid down in the Schedule and the
\nSchedule limited the liability to such amount as was necessary to
\nmeet the requirements of the Motor Vehicles Act, 1988 and as the Act
\ndid not require compulsory insurance for a pillion rider as a third
\nparty, the insurance company should not be held to be liable to
\nindemnify the insured against the risk of occupants carried in the
\ninsured vehicle. Following observations in various judgments were
\ndiscussed at the bar in that context:\n<\/p>\n
(a)\tIn
\nPushpabai Purshottam Udeshi and Ors. v. M\/s.Ranjit Ginning and
\nPressing Co. and Anr.<\/a> [1977 ACJ 343],  it was observed as
\nunder:\n<\/p>\n
“22.\t\tTherefore,
\nit is not required that a policy of insurance should cover risk to
\nthe passengers who are not carried for hire or reward. As under
\nsection 95 the risk to a passenger in a vehicle who is not carried
\nfor hire or reward is not required to be insured, the plea of the
\ncounsel for the insurance company will have to be accepted and the
\ninsurance company held not liable under the requirements of the Motor
\nVehicles Act.\n<\/p>\n
23.\t\tThe
\ninsurer can always take policies covering risks which are not covered
\nby the requirements of section 95. In this case, the insurer had
\ninsured with the insurance company the risk to the passengers. By an
\nendorsement to the policy, the insurance company had insured the
\nliability regarding the accidents to passengers in the following
\nterms:`<\/p>\n
“In
\nconsideration of the payment of an additional premium,it is hereby
\nunderstood and agreed that the Company undertakes to pay,
\ncompensation on the scale provided below for bodily injury as
\nhereinafter defined sustained by any passenger….”\n<\/p>\n
24.\t\tThe
\nscale of compensation is fixed at Rs.15,000. The insurance company is
\nready and willing to pay compensation to the extent of Rs.15,000
\naccording to this endorsement but the learned counsel for the insured
\nsubmitted that the liability of the insurance company is unlimited
\nwith regard to risk to the passengers…\n<\/p>\n
26.\t\tOn
\na construction of the insurance policy, we accept the plea of the
\ninsurance company that the policy had insured the owner only to the
\nextent of Rs.15,000 regarding the injury to the passengers…..”\n<\/p>\n
(b)\tIn
\nAmrit Lal Sood and Anr. v. Kaushalya Devi Thapar and
\nOrs.<\/a> \t[1998 ACJ 531], the
\nquestion before Three Judge Bench of the Supreme Court was: “whether
\nthe insurer is liable to satisfy the claim for compensation made by a
\nperson traveling gratuitously in the car”.
\n After holding that Sections 94 and 95 of the Motor Vehicles Act,
\n1939 did not require a policy to cover the risk to passengers who
\nwere not carried for hire or reward and statutory insurance did not
\ncover injury suffered by occupants of the vehicle who were not
\ncarried for hire or reward, the Supreme Court noticed that, in facts
\nof that case, the policy was admittedly a “comprehensive
\npolicy”. After adverting to
\nthe relevant clause in the policy in “Section II –
\nLiability to Third parties”,
\nthe Supreme Court held in para 8 as under:\n<\/p>\n
“8.\tThus,
\nunder section II-1 (a) of the policy, the insurer has agreed to
\nindemnify the insured against all sums which the insured shall become
\nlegally liable to pay in respect of death of or bodily injury to ‘any
\nperson’. The expression ‘any person’ would undoubtedly include an
\noccupant of the car who is gratuitously traveling in the
\ncar……..In so far as gratuitous passengers are concerned, there is
\nno limitation in the policy as such. Hence, under the terms of the
\npolicy, the insurer is liable to satisfy the award passed in favour
\nof the claimant…..”\n<\/p>\n
(c)\tIn
\nConstitution Bench judgment of the Supreme Court in New India
\nAssurance Co. Ltd. v. C.M.Jaya and Ors.<\/a> [2002 ACJ 271], the
\nissue was whether in a case of insurance company not taking any
\nhigher liability by accepting a higher premium, in case of payment of
\ncompensation to a third party, the insurer would be liable to the
\nextent limited under section 95 (2)  or whether the insurer would be
\nliable to pay the entire amount which he may recover from the
\ninsured. After reference to the earlier decisions in National
\nInsurance Co. Ltd. v. Jugal Kishore<\/a> [1988 ACJ 270] and in
\nAmrit Lal Sood v. Kaushalya Devi Thapar<\/a> [1998 ACJ 531],
\nthe Constitution Bench observed as under:\n<\/p>\n
“5.\tThus,
\na careful reading of these decisions clearly shows that the liability
\nof the insurer is limited, as indicated in section 95 of the Act, but
\nit is open to the insured to make payment of additional higher
\npremium and get higher risk covered in respect of third party also.
\nBut in absence of any such clause in the insurance policy, the
\nliability of the insurer cannot be unlimited in respect of third
\nparty and it is limited only to the statutory liability. This view
\nhas been consistently taken in the other decisions of this court.”\n<\/p>\n
It
\nis further observed in para 7 as under:\n<\/p>\n
“7.\t…..Hence,
\nthe court after noticing the relevant clauses in the policy, on facts
\nfound that under section II (1) (a) of the policy, the insurer has
\nagreed to indemnify the insured against all sums which the insured
\nshall become legally liable to pay in respect of death of or bodily
\ninjury to ‘any person’.  The expression ‘any person’ would
\nundoubtedly include an occupant of the car who is gratuitously
\ntraveling in it. …….The liability could be statutory or
\ncontractual. A statutory liability cannot be more than what is
\nrequired under the statute itself. However, there is nothing in
\nsection 95 of the Act prohibiting the parties from contracting to
\ncreate unlimited or higher liability to cover wider risk. In such an
\nevent, the insurer is bound by the terms of the contract as specified
\nin the policy in regard to unlimited or higher liability as the case
\nmay be. In the absence of such a term or clause in the policy,
\npursuant to the contract of insurance, a limited statutory liability
\ncannot be expanded to make it unlimited or higher. If it is so done,
\nit amounts to rewriting the statute or the contract of insurance
\nwhich is not permissible.”\n<\/p>\n
“11.\t\tIn
\nthe premise, we hold that the view expressed by the Bench of the
\nthree learned Judges in the case of Shanti Bai 1995 ACJ 470 (S) is
\ncorrect and answer the question set out in the order of reference in
\nthe beginning as under:\n<\/p>\n
\tIn
\nthe case of insurance company not taking any higher liability by
\naccepting a higher premium for payment of compensation to a third
\nparty, the insurer would be liable to the extent limited under
\nsection 95 (2) of the Act and would not be liable to pay the entire
\namount.”\n<\/p>\n
“12.\t\tIn
\nthese appeals presently before us, the judgment and order of Delhi
\nHigh Court are under challenge. The deceased was riding the pillion
\nseat of a two wheeler when it met with accident with a truck insured
\nby the appellant…….It is not in dispute from the admitted copy of
\nthe insurance policy produced before the court that the liability of
\nthe appellant is limited to Rs.50,000 in regard to the claim in
\nquestion. ……It is also not the case that any additional or higher
\npremium was paid to cover unlimited or higher liability than the
\nstatutory liability fixed as found in the term of the policy
\nextracted above…….In Shanti Bai’s case, 1995 ACJ 470 (SC), this
\ncourt has clearly expressed the opinion that a comprehensive policy
\nissued on the basis of the estimated value of the vehicle does not
\nautomatically result in covering the liability with regard to third
\nparty risk for an amount higher than the statutory limit in the
\nabsence of specific agreement and payment of separate premium to
\ncover third party risk for an amount higher than the statutory
\nlimit…….”\n<\/p>\n
“13.\tIn
\nthe circumstances, we hold that the liability of the appellant
\ninsurance company is limited to Rs.50,000, as held by the
\nTribunal……”\n<\/p>\n
(d)\tRecently,
\nthe issue of the expression “third party” covering a
\npassenger came up for consideration, upon a reference before Full
\nBench of Madhya Pradesh High Court, in Bhav Singh v. Smt.
\nSavirani & Ors. [AIR 2008 MP 1 (FB)]  and the Court made
\nthe following observations in the context of Section 147 of the Act:\n<\/p>\n
“8.\t…..Section
\n147 (1) (b) of the Act provides that in order to comply with the
\nrequirements of Chapter XI of the Act, a policy of insurance must be
\na policy which insures the person or classes of persons specified in
\nthe policy to the extent specified in sub-section (2) against the
\nliabilities mentioned in clauses (i) and (ii) thereunder. The proviso
\nto sub-section (1) of Section 147 of the Act, however, states that a
\npolicy shall not be required to cover liability other than the
\nliability arising under the Workmen’s Compensation Act, 1923 in
\nrespect of the death of or bodily injury to any of the three
\ncategories of employees mentioned in sub-clauses (1), (b) and (c) of
\nclause (i) of the proviso to sub-section (1) of Section 147 of the
\nAct. Hence, even if an employee is a passenger or a person traveling
\nin a motor vehicle which is insured as per the requirements of
\nsub-section (1) of Section 147 of the Act, the insurer will not be
\nliable to cover any liability in respect of death or bodily injury of
\nsuch employee unless such employee falls in one of the categories
\nmentioned in sub-clauses (a), (b) and (c) of clause (i) of the
\nproviso to sub-section (1) of Section 147 of the Act and further in
\ncases where such employees fall under categories mentioned in
\nsub-clauses (1), (b) and (c) of clause (i) of the proviso to
\nsub-section (1) of Section 147 of the Act, the insurer is liable only
\nfor the liability under the Workmen’s Compensation Act, 1923..”.\n<\/p>\n
9.\t\t….\t\t….\n<\/p>\n
10.\tSub-section
\n(5) of Section 147 of the Act, however, provides that notwithstanding
\nanything contained in any law for the time being in force, an insurer
\nissuing a policy of insurance under Section 147 of the Act shall be
\nliable to indemnify a person or classes of persons specified in the
\npolicy in respect of any liability which the policy purports to cover
\nin the case of that person or classes of persons. Thus, if the policy
\nof insurance covers any liability in addition to the liability under
\nSection 147 (1) of the Act, the insurer will be liable to indemnify
\nthe insured in case of any liability not because of the provisions of
\nsub-section (1) of Section 147 but because of the terms and
\nconditions of contract of insurance between the insurer and the
\ninsured. Therefore, if the contract of insurance provides for a
\nliability to a passenger or to an employee other than the liabilities
\nprovided under sub-section (1) of Section 147 of the Act, the insurer
\nwould be liable to indemnify the insured against such liability.”\n<\/p>\n
(e)\tThe
\nHigh Court of Karnataka has, recently in an appeal by the same
\nappellant and based on the same arguments in the same context of
\nfacts and type of policy, in Bajaj Allianz General Insurance
\nCo. Ltd. v. B.M.Niranjan and Anr.<\/a> [2008 ACJ 554], held as
\nunder:\n<\/p>\n
“19.\n<\/p>\n
 A reading of the aforesaid terms and conditions discloses that the
\ninsurance company issued a policy known as a ‘package policy’ for
\ntwo-wheeler and collected a premium to cover the risk of not only own
\ndamage, but also third party. The coverage also included the death or
\nbodily injury to any person including occupants carried in the
\ninsured vehicle (provided such occupants are not carried for hire or
\nreward). The terms and conditions of the policy and the schedule of
\npayment cannot but be said to cover claims of the injured pillion
\nrider of the motor cycle.”\n<\/p>\n
10.\t\tThe
\nabove opinions expressed in several judgments would clearly show, (i)
\nthat the phrase ‘Limits of Liability for Third Party”
\nrefers to pecuniary limits of the liability of the insurer and does
\nnot refer to liability of insurer towards third party qua third
\nparty,  and (ii) that even if a pillion rider or a gratuitous
\npassenger were not covered by the expression ‘third party’ or
\n‘any person’, liability of the insurer could arise under
\nspecial conditions of the policy to cover any risk by way of
\ncontractual liability. Even otherwise, the condition contained in
\nSection II of Two Wheeler Package Policy to indemnify the insured
\nagainst all liabilities in respect of death of or bodily injury to
\noccupants carried in the insured vehicle cannot be read as having
\nbeen cancelled or excluded on account of the occupant not being
\ntreated as a “third party”. In other words, the
\nSchedule to the Policy cannot be read, interpreted or applied  so as
\nto put to naught the essential conditions described in detail in the
\nprescribed form of the policy.  Therefore, the argument that while
\nundertaking the liability to indemnify the insured in respect of the
\nliability arising out of death of or bodily injury to occupant is
\nsubject to limits of liability to third party under the Act and a
\ngratuitous passenger was not a third party has to be rejected as
\ndisingenuous and circuitous. That condition of the policy and the
\nmention of Motor Vehicles Act, 1988 against the column “Limits
\nof Liability” in the Schedule to the Policy has to be read
\nin the context of the provisions of Section 147 of the Act, more
\nparticularly sub-section (2) of Section 147. That sub-section
\nrequires cover of liability upto the amount of liability incurred and
\nthe only pecuniary limit is in respect of damage to any property of a
\nthird party. Therefore, by necessary implication, the insurer
\nundertakes to indemnify the insured to the extent of liability
\nincurred by him in respect of death of or bodily injury to the
\noccupants carried in the insured vehicle. The scope for limiting the
\nliability is only in respect of the liability arising in respect of
\ndamage to property. Addition of any endorsement or IMT numbers could
\nredefine or expand the liability of the insurer; but the absence of
\nany endorsement cannot derogate from the liability essentially
\nundertaken by the insurer under the express terms of the policy.
\nTherefore, the factual issue as to whether premium was charged or
\npaid in respect of any particular IMT endorsement would be extraneous
\nand irrelevant in applying the essential conditions of the “Two
\nWheeler Package Policy”. The language of the clauses for
\nliability to third parties and the exceptions as prescribed in the
\nStandard Form for “Liability Only Policy” and in the
\nStandard Form for “Two Wheeler Package Policy” also
\nclearly show that a wider coverage to include the risk of occupants
\nof the vehicle is clearly intended and envisaged by law and the wider
\ncoverage is not made subject to any restrictive clauses or
\nendorsements of IMTs.\n<\/p>\n
11.\t\tThe
\nSupreme Court has, in the year 1988 in  National Insurance Co.
\nLtd. v. Jugal Kishore and Ors.<\/a> [AIR 1988 SC 719], made the
\nfollowing pertinent observations, but the situation on the ground
\ndoes not appear to have improved at all.\n<\/p>\n
“10.\t\tBefore
\nparting with the case, we consider it necessary to refer to the
\nattitude often adopted by the Insurance Companies, as was adopted
\neven in this case, of not filing a copy of the policy before the
\nTribunal and even before the High Court in appeal. In this connection
\nwhat is of significance is that the claimants for compensation under
\nthe Act are invariably not possessed of either the policy or a copy
\nthereof. This Court has consistently emphasized that it is the duty
\nof the party which is in possession of a document which would be
\nhelpful in doing justice in the cause to produce the said document
\nand such party should not be permitted to take shelter behind the
\nabstract doctrine of burden of proof. This duty is greater in the
\ncase of instrumentalities of the State such as the appellant who are
\nunder an obligation to act fairly. In many cases even the owner of
\nthe vehicle for reasons known to him does not choose to produce the
\npolicy or a copy thereof. We accordingly wish to emphasize that in
\nall such cases where the Insurance Company concerned wishes to take a
\ndefence in claim petition that its liability is not in excess of the
\nstatutory liability it should file a copy of the insurance policy
\nalong with its defence. Even in the instant case had it been done so
\nat the appropriate stage necessity of approaching this Court in Civil
\nAppeal would in all probability have been avoided. Filing a copy of
\nthe policy, therefore, not only cuts short avoidable litigation but
\nalso helps the Court in doing justice between the parties. The
\nobligation on the part of the State or its instrumentalities to act
\nfairly can never be over-emphasized”.\n<\/p>\n
\tTherefore,
\nrelevant parts of the prescribed forms of the policies are reproduced
\nhereinabove to obviate the difficulties and confusion arising out of
\nsuppression of the entire documents of insurance policy.??\n<\/p>\n
11.\tThis
\nCourt had an occasion to consider very question in FA No.2030 of 2007
\ndecided on 25.8.2008 in case of National Insurance Co. v. Shabbir
\nMohmad Kunjada and others. In case of Narmadaben Sureshbhai Rathawa
\nv. Rajesh Kanchanlal Panchal reported in 2008 (3) GLH 98 and in ICICI
\nLombard General Insurance Co. Lt. v. Uday Khengarbhai Sanesara in FA
\nNo.4832\/07 with CA No.12733\/07 decided on 11.2.2008.\n<\/p>\n
12.\tIt
\nis necessary to have some help from a good article written by Shri S.
\nSrinivasa Raghavan, Advocate, Madurai published in (2008) 5 MLJ 38
\nwhere title suggests the anxiety of lawyer who written this article
\n?SThe insured, no doubt, are they assured ??? and while question
\nhas been discussed in article including persons those who are
\ntravelling in private car and pillion rider and what would be the
\neffect of circular and various decisions on the issue. Relevant
\nobservations are in Para.12, 13, 14 and 15 which are quoted as under
\n:\n<\/p>\n
12.\tInterpretation
\nof the word ?Sany Person??\n<\/p>\n
\tIt
\nis also now settled that the words ?Sany person?? occurring in
\nSection 147 does not bring within their fold an occupant of a private
\ncar or a pillion rider, and that the risk in respect of such persons
\nis not required to be covered by an insurer in order to meet the
\nrequirements of Section 147(1). The reference to the term ?Sany
\nperson?? in the verdict of the Apex Court in Amritlal Sood’s case
\n1998 ACJ 531 SC is that of the term employed in Section II(1)(a) of
\nthe Comprehensive policy and not that of the term employed in Section
\n147 of the M.V.Act. In fact the same view has subsequently been taken
\nby the Supreme Court in T.V.Jose (Dr.) V.Chacko P.M.2001 ACJ 2059 SC.\n<\/p>\n
\tThe
\nnon-payment of premium of such persons, or the premium structure
\nbeing the same for all policies as far as third party liability is
\nconcerned, become insignificant when the fact that the cover was
\ngranted free of cost from 1978 is viewed in the proper perspective.\n<\/p>\n
\tThe
\nexpression ?Sany person?? occurring in Section 147 has been
\ninterpreted by various Courts to be of wide connotation to include
\neven an occupant and the expression ?Sthird party?? has been
\ninterpreted to mean any person other than the insurer and the
\ninsured.\n<\/p>\n
\tThe
\nKarnataka High Court in National Insurance Co.Ltd. V.Rasheeda 1998
\nACJ 404 has held that these \texpressions used in Section 147 includes
\neven a person travelling in a private car. This view may not be
\ncorrect in the light of the repeated assertion of the apex Court in
\nTilak Singh’s case and K.V.Suthakaran’s case that the occupants of a
\nvehicle cannot be construed as a third party under the Act Policy.\n<\/p>\n
\tThus,
\nan interpretation of the expression ?Sany person?? occurring in
\nSection 147 would be governed by the law as lay down by the apex
\nCourt, but the Courts could take a different view of the matter if
\nthey were to interpret the words ?Sany person?? occurring in
\nSection II of a comprehensive\/package policy. There is nothing that
\ncould stop an insurer from contending that the risk is not covered
\nhad not the TAC brought forth the amendment in 1978.\n<\/p>\n
13.\tPosition
\nof law<\/p>\n
\tThe
\nissue relating to the liability of the insurer under the
\ncomprehensive policy was dealt with by a three member Bench of the
\nApex Court in 1998 in Amritlal Sood V.Kausalya Devi 1998 ACJ 531 SC.
\nThough the judgment was delivered much after the issuance of the said
\ncircular by the TAC, the policy in dispute in the said case was
\nissued prior to the amendment to the said policy wordings.\n<\/p>\n
\tThe
\nApex Court has brought such occupants within the ambit of the term
\n?Sany person?? in Section II(1)(a) of the comprehensive Policy (and
\nnot in Section 147 of the MV Act) in its ruling above said Amritlal
\nSood V.Kausalya Devi 1998 ACJ 531 SC and has accordingly held that
\nunder the comprehensive policy the insurer is liable to compensate
\nthe occupants of private vehicles.\n<\/p>\n
\tThe
\nAndhra Pradesh High Court has held in Oriental Insurance Co.Ltd.
\nV.Nakirikanti Narendra Babu and Others 2007 ACJ 2069 that the insurer
\nis liable under comprehensive policy in the light of the specific
\nwordings contained in Section II of the policy.\n<\/p>\n
14.\tApplicability
\nof the circular and decisions <\/p>\n
\tThe
\nTAC circular is however applicable only to comprehensive policies
\nonly. An impression is gaining ground in the minds of insured persons
\nand MACTs that the insurer would be liable even in a statutory policy
\nin the light of the judgment of the Gujarat High Court in Naymesh H.
\nNanavati v. Dashrath R. Bhagat and Others<\/a> 2008 ACJ 61 and in the
\njudgment of the Delhi High Court in Ramesh Chand Tripathi v. Lily
\nJoshi 2008 ACJ 785, where the TAC circular is referred to hold the
\ninsurer liable in the case of a gratuitous passenger in a private
\nvehicle. The discussion in paragraph 7.1 of the judgment in Naymesh
\nNanavati’s case mentions that the decision of the TAC relates to
\nclause(1) of Section II(a) of a Motor Car Comprehensive policy. Such
\na view is incorrect since the said wordings were added only to a
\ncomprehensive policy and no such addition can be attributed to a
\nstatutory policy.\n<\/p>\n
\tThe
\njudgment of the Madras High Court in National Insurance Co. Ltd., v.
\nKomalam and Others (2008) 2 MLJ 736 has given raise to an impression
\nthat unless additional premium is paid to cover the risk of
\npassengers in the vehicle, the insurer cannot be saddled with
\nliability to pay compensation in respect of an occupant of a private
\ncar. In fact there is no provision in the IMT that enables the owner
\nof a private vehicle to take an unlimited cover in respect of
\noccupants\/pillion rider, and hence the question of paying additional
\npremium to cover the risk in respect of an occupant does not arise at
\nall. The liability of the insurer in respect of such occupants arises
\nnot on account of the collection of premium, but on account of the
\nwordings in Section II of a comprehensive\/ package policy.\n<\/p>\n
\tOccupants
\nof a private car\/pillion riders in two-wheelers do not fall within
\nthe expression ‘any person’ occurring in Section 147. In the absence
\nof a tariff structure to cover their risk, non payment of premium
\ncannot be a ground to allow the insurer to wriggle out of the
\ncommitment granted under Section II(1)(a) of a comprehensive\/package
\npolicy. The cover however, is not available where the death or bodily
\ninjury arises out of and in the course of the employment under the
\ninsured except to the cases required to be covered under Motor
\nVehicles Act. That is to say not all employees of the insured who
\nhappen to travel as occupants in the insured’s vehicle would be
\ncovered under Section II(1)(a).\n<\/p>\n
\tThe
\nonly category of employee who would be covered to meet the
\nrequirement of the proviso (i) to Section 147(1)(b)(ii) is the
\nemployee engaged in driving the vehicle. So long as the words that
\npresently occur in Section II(1)(a) of a standard package policy
\nremain as they are, it would not be open to an insurer to take
\nadvantage of non-payment of premium to contend that the risk in
\nrespect of occupants of a private car and a pillion rider traveling
\non a two-wheeler is not covered under a comprehensive\/package policy.\n<\/p>\n
\tThe
\ndispute in Mathew Joseph case, and Bhagyalakshmi case rendered by
\nKerala and Karnataka High Courts respectively and the verdict in
\nKulandai Theresa and Others v. P.Ramalingam and Others (unreported
\ncase of Madras High Court in CMA No.1137 of 1990 by Hom’ble Mrs.
\nChitra Venkataraman) and National Insurance Company Limited v.
\nKomalam decided by Hon’ble Ms. Justice R. Banumathi (2008) 2 MLJ 736
\nhave been decided in favour of insurers holding that without payment
\nof special or additional premium no liability can be fastened upon
\nthem.\n<\/p>\n
\tThe
\ntype of policy under consideration in Kulandai Theresa’s case is not
\nmentioned therein The finding of the Madras High Court in National
\nInsurance Company Limited v. Komalam (2008) 2 MLJ 736 that the
\ninsurer is not liable in this case is however justifiable on the
\ngrounds that the deceased was not just an occupant, but an employee
\nof the insured whose risk is, even otherwise, not required to be
\ncovered under the MV Act.\n<\/p>\n
15.\tConclusion<\/p>\n
\tThe
\noccupants of private vehicles are thus third parties in the eyes of
\nlaw and death or bodily injury to such person or class of persons
\nwould entitle them or their dependents, as the case may be, to claim
\ncompensation from the insurers even without any additional premium by
\nthe owners of the private vehicles.\n<\/p>\n
\tFrom
\nthe foregoing it may inevitably be concluded that the decision in
\nfavour of the insurers would be justifiable only if the policy of
\ninsurance under consideration were a statutory policy and not
\notherwise. Such of those decisions which have held that the insurers
\nare not liable under comprehensive policy to cover such occupants of
\nprivate vehicles and pillion passengers without additional premium
\nmay be considered in the light of what is stated above.??\n<\/p>\n
13.\tIn
\nview of the aforesaid law as referred by this Court and relied upon
\nby learned advocate Ms.Megha Jani, the question is that whether
\npillion rider in private vehicle covered by definition of ‘any person
\n\/ third party\/ occupant, so  Insurance Co. is held to be liable for
\npayment of compensation  to the claimants. The decision which has
\nbeen relied upon by her where nowhere direction of the Tariff
\nAdvisory Committee has been considered by Apex Court. In the decision
\nof Sudhakaran K.V. (supra) also, Apex Court has examined issue
\nwhether pillion rider is covered as a third party or any person under
\nSection 147 of the MV Act. In decision of Tilak Singh (supra),  Apex
\nCourt  has considered Section 147 of the MV Act and terms of
\ninsurance policy where risk of pillion rider is not covered because
\nadditional premium was not paid by insured. But before  Apex Court,
\ndirection of Tariff Advisory Committee issued to all the insurer that
\nTariff Advisory Committee has taken the decision relating to clause-1
\nof Section-II(a) is to be substituted by way of amendment in respect
\nof ‘any person’ such occupants is to be included.\n<\/p>\n
14.\tIn
\nthis matter, this court has examined whether insurance company is
\nliable to pay compensation to claimant or not in case of an accident
\nwherein pillion rider has received injury or has expired in such an
\naccident. In decision of apex court which has been relied upon by
\nlearned Advocate Ms. Megha Jani, apex court has considered only scope
\nof section 147 of Motor Vehicles Act and in light of that fact,
\nwhether pillion rider is to be considered third party or not, only
\nthat question has been examined by Hon’ble Supreme Court in decision
\nreferred to and relied upon by learned Advocate Ms.Megha Jani. The
\nApex Court has come to conclusion that pillion rider is not
\nconsidered to be third party, therefore, insurance company is not
\nliable to pay compensation to claimant. Owner is not a third party.
\nIf motor cycle is driven by owner and his wife is sitting on motor
\ncycle as pillion rider and accident occurs, then, though owner has
\npaid premium for obtaining insurance, then also, as per
\ninterpretation of section 147 made by apex court, result is that
\nowner of motor cycle and his wife both are not considered to be third
\nparty when accident occurred without involvement of opposite vehicle.
\nTherefore, owner is not third party, pillion rider is also not a
\nthird party, then, for whom insurance was taken by owner and for what
\nand why amount of insurance was paid by owner to insurance company.
\nAccording to my opinion, insurance company plays trick with its
\ncustomers by not giving total details which are necessary and in the
\ninterest of insured while entering into contract of insurance with
\nowner of vehicle. According to my opinion, owner who is purchasing
\nand owning motor cycle worth Rs.40,000\/- to Rs.50,000\/-  would be
\nhaving no   problem to make payment of additional premium of  petty
\namount of Rs.100.00 or so while getting vehicle insured to cover risk
\nin all respects.  But complete details are not given to owner whether
\nhis risk is covered in all respects or not by insurance company and
\ninsurance company while entering into contract of insurance, not
\nproviding complete details that for covering risks in all respects,
\nthis much additional premium is necessary so as to cover risk of
\nowner\/person driving motor cycle and pillion rider. This is the
\nbusiness approach or trick which is being played by insurance
\ncompanies with customers who are approaching insurance company for
\ngetting their motor cycle insured in all respects. Initially,
\ninsurance company will get business by playing such tricks and then,
\nwhen claim is lodged, insurance company will defend such claim by
\nteeth and nail and in such a situation, ultimate suffer is injured
\nand pillion rider.   It cannot be presumed that in motor   cycle,
\npillion rider is taken by driver or owner of motor cycle on hire or
\nreward. This is impossible even to imagine and  pillion rider of
\nmotor cycle would ordinarily be a friend or relative or it would be a
\nsocial service rendered by owner\/driver of motor cycle. Therefore,
\naccording to my opinion, while   getting business, insurance company
\nmust disclose true and correct picture before owner of motor cycle
\nbut unfortunately being   business tactics, these facts are not being
\ndisclosed by insurance company before owner of motor cycle who is
\napproaching insurance company for getting their vehicle insured in
\nall respects. Normally persons would not be aware about such tactics
\nwhich are being adopted by insurance company, so, ultimately,
\ninsurance company will deny responsibility and ultimate suffer will
\nbe pillion rider. According to my opinion, such type of approach and
\nbusiness tactics adopted by insurance company is required to be
\ncondemned. This Court has gathered facts from number of such
\ninstances where such type of defences are always being raised by
\ninsurance company by placing reliance upon decision of apex court
\nwherein apex court has interpreted only section 147 of Motor Vehicles
\nAct. Considering whether insurance company is statutorily liable to
\npay compensation to claimant in respect of claim of pillion rider and
\nowner, answer given by apex court in negative but according to my
\nopinion, in said decision relied upon by learned Advocate Ms.Megha
\nJani, the Apex Court has considered only statutory liability of
\ninsurance company in above said decisions. However, I am considering
\nwhether this liability of insurance company is arising from
\ncontractual liability means as per terms and conditions incorporated
\nin insurance policy or not. If insurance company is contractually
\nliable to cover risk of pillion rider, then, insurance company is
\nliable to discharge liability on the basis of terms and conditions
\nincorporated in insurance policy, therefore, I am examining this
\nmatter only on the basis of fact whether insurance company is
\ncontractually liable or not in respect of pillion rider, to pay
\ncompensation to claimant of pillion rider. For that, I am relying
\nupon Tariff Advisory Committee which had issued Circular dated 2nd
\nJune, 1986  which is relating to compensation to pillion riders. By
\nsaid circular dated 2nd June, 1986,   \tInsurer’s attention
\nwas invited to section II  (1)  (a)  of  standard  form  for  motor
\ncycle, comprehensive   policy, sheet 59 of the IMT. Under said
\nCircular, it was decided that the  standard  motor       cycle
\ncomprehensive  policy  should  cover  liability to pillion passengers
\ntreating  them  as  occupants  in  the  motor cycle and provide
\nindemnity to such persons who are  not carried for hire or reward.
\nAccordingly,  the  extra  benefit  No.2  granting  legal  liability
\nto cover side car passengers was   deleted and the standard cover
\nunder section 2(1) (a)  of     the policy was worded like ?SDeath
\nor  bodily injury to any person including  any person conveyed in  or
\non the  motor  cycle  provided  such person is not carried for hire
\nor reward.?? And thereafter,  Insurers   are   requested   to  issue
\n necessary  instructions  to  their  Divisional  \/   Branch   offices
\n accordingly.\tSaid Circular dated 2nd June, 1986 is also
\napplicable in Gujarat State, Ahmedabad.  According to my opinion,
\nsaid direction or circular issued by Tariff Advisory Committee is
\nhaving statutory binding force upon the insurance companies  but
\ninsurance companies are not amending their terms and conditions
\nincorporated in policy of insurance in respect to motor cycle and
\nthat is how ultimate suffer is claimant of pillion rider, therefore,
\naccording to my opinion, considering aforesaid directions and
\ncircular dated 2nd June, 1986 issued by Tariff Advisory
\nCommittee, risk of pillion rider is covered being contractual
\nliability of insurance company and insurance company cannot deny such
\ncontractual liability by merely placing reliance upon apex court
\ndecision wherein apex court has considered only sec. 147 of Motor
\nVehicles Act, therefore according to my opinion, said decisions of
\napex court referred to and relied upon by learned Advocate Ms. Megha
\nJani are not applicable to facts of this case. This aspect has been
\nconsidered by Karnataka High Court in case of Oriental Insurance Co.
\nLtd. Versus Minaxi and others reported in 2000 ACJ 385 while relying
\nupon earlier decision of Karnataka High Court in case of Kashmir D.
\nGudinho v. Kulkarni reported in 1998 ACJ 1427.  In said decision,
\nKarnataka High Court has, after examining entire matter with all
\nrelevant decisions on issue, observed as under in para 12 to 20:\n<\/p>\n
\t?S12.\n<\/p>\n
\tWhen the matter was heard by me, I have also noticed that Sri C. K.
\n\tKambeyananda, one of the Senior Advocates on the panel of the
\n\tInsurance Company present before Court, and therefore, I thought his
\n\tassistance to decide the issue before me. It is his submission that
\n\ton 2-6-1986, a circular came to be issued to cover the risk of
\n\tpillion riders and with the issuance of that circular the amendment
\n\tin the clause of the Insurance Policy very well covered the third
\n\tparty risk including the death or bodily injury to any person
\n\tincluding person conveyed in or on the Motor Cycle provided such
\n\tperson is not carried for hire or reward. He specifically placed
\n\treliance on the reported decision of the learned single Judge of
\n\tthis Court reported in ILR 1996 Kant 3041 : (AIR 1996 Kant 396) and
\n\tILR 1997 Kant 1491 : (1997 AIHC 2159). The other decisions Sri
\n\tKambeyananda cited before me are :\n<\/p>\n
1.
\nILR 1997 Kant 2697 : (1997 AIHC 4104) (National Insurance Co. Ltd. v.
\nSmt. Rasheeda).\n<\/p>\n
2.
\nILR 1995 Kant 1637 (Shanthabai v. Shekappa).\n<\/p>\n
3.
\nILR 1991 Kant 2045 : (AIR 1992 Kant 3) (FB).\n<\/p>\n
4.
\nAIR 1977 SC 1735.\n<\/p>\n
5.
\nILR 1996 Kar 3041 : (AIR 1996 Kant 396) (New India Assurance Co. Ltd.
\nv. Nagarathna)<\/p>\n
6.
\nUnreported judgment of the learned single Judge of this Court in MFA
\n2263\/94 (DD 201.1998).\n<\/p>\n
13.
\nIt is relevant to point out here that the Tariff Advisory Committee
\nhad issued the Circular dated 2-6-1986 to cover the third party risk.
\nIn this context, I feel it appropriate to quote the said circular
\nthat came to be issued by the Tariff Advisory Committee, a copy
\nthereof had been supplied to the Court by the learned counsel for the
\nappellant in the first appeal, the same reads as hereunder :\n<\/p>\n
“(PRIVATE
\nand CONFIDENTIAL : ISSUED FOR THE USE OF INSURERS CARRYING ON GENERAL
\nINSURANCE BUSINESS IN INDIA).\n<\/p>\n
\tTARIFF
\nADVISORY COMMITTEE<\/p>\n
\tBOMBAY<\/p>\n
\t\t\t\t\tAdor
\nHouse, 1st floor,<\/p>\n
\t\t\t\t\t6,
\nK. Dubash Marg,<\/p>\n
\t\t\t\t\tBombay-400\n<\/p>\n
023.<\/p>\n
MOT\/GEN\/10<\/p>\n
\t\t\t\t\t2nd
\nJune, 1986.\n<\/p>\n
To
\n:\n<\/p>\n
All
\nRegional Offices of :\n<\/p>\n
1.
\nNational Insurance Co. Ltd., Calcutta.\n<\/p>\n
2.
\nThe New India Assurance Co.. Ltd., Bombay.\n<\/p>\n
3.
\nThe Oriental Insurance Co. Ltd., Delhi.\n<\/p>\n
4.
\nUnited India Insurance Co. Ltd., Madras.\n<\/p>\n
Govt.\n<\/p>\n
Insc. Funds : 1. Maharashtra State, Bombay.\n<\/p>\n
2.
\nGujarat State-Ahmedabad.\n<\/p>\n
3.
\nKerala State-Trivandrum.\n<\/p>\n
4.
\nKarnataka State-Bangalore.\n<\/p>\n
Re
\n: Compensation to Pillion Riders.\n<\/p>\n
Insurer’s
\nattention is invited to Section II(1)(a) of Standard Form for Motor
\nCycle, Comprehensive Policy, Sheet 59 of the IMT.\n<\/p>\n
It
\nhas now been decided that the Standard Motor Cycle Comprehensive
\nPolicy should cover liability to Pillion Passengers treating them as
\noccupants in the Motor Cycle and provide indemnity to such persons
\nwho are not carried for hire or reward.\n<\/p>\n
Accordingly,
\nExtra Benefit No. 2 granting legal liability to cover side car
\npassengers will stand deleted and Standard Cover under Section
\n2(1)(a) of the Policy are worded as under:-\n<\/p>\n
“Death
\nor bodily injury to any person including person conveyed in or on the
\nMotor Cycle provided such person is not carried for hire or reward.”\n<\/p>\n
Insurers
\nare requested to issue necessary instructions to their
\nDivisional\/Branch offices accordingly.\n<\/p>\n
\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tsd\/-\n<\/p>\n
\t\t\t\t\t\t\t(Y.D.\n<\/p>\n
PATIL)<\/p>\n
\t\t\t\t\t\t\tSECRETARY<\/p>\n
C.C.to:Head
\nOffice of New India\/ National\/ Oriental\/United India,
\nBombay\/Calcutta\/Delhi Madras Regional Committees, General Insurance
\nCorporation of India, Technical Department, Bombay, Govt. Audit
\nDepts, Bombay\/ Calcutta\/ Delhi\/Madras.”\n<\/p>\n
14.
\nBoth the two accidents involved in these three appeals had taken
\nplace after coming into force of the Motor Vehicles Act, 1988, when
\nthe accident in the first two appeals had taken place on 27-9-1991,
\nthe accident in the third appeal had taken on 16-12-1990. Therefore,
\nI feel it appropriate to advert to Section 147 of the Motor Vehicles
\nAct, 1988 (Henceforth referred to in brief as ‘ACT’). The said
\nSection deals with the requirements of the policies and limits of
\nliability. To quote the same, the same reads as hereunder :\n<\/p>\n
“147.\n<\/p>\n
Requirements of policies and limits of liability.- (1) In order to
\ncomply with the requirements of this Chapter, a policy of insurance
\nmust be a policy which-\n<\/p>\n
(a)
\nis issued by a person who is an authorised insurer; and<\/p>\n
(b)
\ninsures the person or classes of persons specified in the policy to
\nthe extent specified in sub-section (2)-\n<\/p>\n
(i)
\nagainst any liability which may be incurred by him in respect of the
\ndeath of or bodily injury to any person [including owner of the goods
\nor his authorised representative carried in the vehicle] or damage to
\nany property of a third party caused by or arising out of the use of
\nthe vehicle in a public place;\n<\/p>\n
(ii)
\nagainst the death of or bodily injury to any passenger of a public
\nservice vehicle caused by or arising out of the use of the vehicle in
\na public place :\n<\/p>\n
Provided
\nthat a policy shall not be required-\n<\/p>\n
(i)
\nto cover liability in respect of the death, arising out of and in the
\ncourse of his employment, of the employee of a person insured by the
\npolicy or in respect of bodily injury sustained by such an employee
\narising out of and in the course of his employment other than a
\nliability arising under the Workmen’s Compensation Act, 1923 (8 of
\n1923), in respect of the death of, or bodily injury to, any such
\nemployee-\n<\/p>\n
(a)
\nengaged in driving the vehicle, or<\/p>\n
(b)
\nif it is a public service vehicle engaged as a conductor of the
\nvehicle or in examining tickets on the vehicle, or<\/p>\n
(c)
\nIf it is a goods carriage, being carried in the vehicle, or<\/p>\n
(ii)
\nto cover any contractual liability.\n<\/p>\n
Explanation.-\n<\/p>\n
For the removal of doubts, it is hereby declared that the death of or
\nbodily injury to any person or damage to any property of a third
\nparty shall be deemed to have been caused by or to have arisen out
\nof, the use of a vehicle in a public place notwithstanding that the
\nperson who is dead or injured or the property which is damaged was
\nnot in a public place at the time of the accident, if the act or
\nomission which led to the accident occurred in a public place.\n<\/p>\n
(2)<\/span><\/p>\n
Subject to the proviso to sub-section (1), a policy of insurance
\nreferred to in sub-section (1), shall cover any liability incurred in
\nrespect of any accident, up to the following limits, namely :-\n<\/p>\n
a)
\nsave as provided in clause (b), the amount of liability incurred;\n<\/p>\n
b)
\nin respect of damage to any property of a third party, a limit of
\nrupees six thousand :\n<\/p>\n
Provided
\nthat any policy of insurance issued with any limited liability and in
\nforce immediately before the commencement of this Act, shall continue
\nto be effective for a period of four months after such commencement
\nor till the date of expiry of such policy whichever is earlier.\n<\/p>\n
(3)<\/span><\/p>\n
A policy shall be of no effect for the purposes of this Chapter
\nunless and until there is issued by the insurer in favour of the
\nperson by whom the policy is effected a certificate of insurance in
\nthe prescribed form and containing the prescribed particulars of any
\ncondition subject to which the policy is issued and of any other
\nprescribed matters; and different forms, particulars and matters may
\nbe prescribed in different cases.\n<\/p>\n
(4)<\/span><\/p>\n
Where a cover note issued by the insurer under the provisions of this
\nChapter or the rules made thereunder is not followed by a policy of
\ninsurance within the prescribed time, the insurer shall, within seven
\ndays of the expiry of the period of the validity of the cover note,
\nnotify the fact to the registering authority in whose records the
\nvehicle to which the cover note relates has been registered or to
\nsuch other authority as the State Government may prescribe.\n<\/p>\n
(5)<\/span><\/p>\n
Notwithstanding anything contained in any law for the time being in
\nforce, an insurer issuing a policy of insurance under this section
\nshall be liable to indemnify the person or classes of persons
\nspecified in the policy in respect of any liability which the policy
\npurports to cover in the case of that person or those classes of
\npersons.\n<\/p>\n
15.
\nBy reading the provision in Section 147(1)(i), it appears to me that
\nthe policy one issuable by the Insurance Company must cover as
\nagainst any liability which may be incurred by the owner of the
\nvehicle in respect of the death or bodily injury to any person and
\nmust include the death or bodily injury or injuries likely to be
\nsuffered by the third parties too. It further appears to me that the
\nterm ‘any person’ used in the above Section also covers the pillion
\nrider, for in the Explanation below the proviso thereto, it is
\nclarified that the death or bodily injury to any person or damage to
\nany property of a third person shall be deemed to have been caused by
\nor to have arisen out of the use of the vehicle in a public place at
\nthe point of time of accident that occurred in a public place.
\nTherefore, it is obvious that Section 147 of the Act contemplates
\ncoverage of risk of the third parties too, who suffered either bodily
\ninjury or death as the case may be. This interpretation of mine has
\ngot support in the decision of the learned single Judge reported in
\nILR 1997 Kant 2697 : (1997 AIHC 4104). In the said decision, at para
\n(9) thereof, the learned single Judge had observed as hereunder :\n<\/p>\n
“9.\n<\/p>\n
A perusal of these observations per se reveals that in order to
\nreject the plea raised therein that the expression third party is
\nwide enough to cover all persons except, person and the insurer, the
\nbasis provided has been by the proviso to clause (ii) to Section
\n95(i) of the Act of 1939. No doubt under M.V. Act of 1939 proviso
\nclearly says that policy is not required to cover the liability in
\nrespect of death or bodily injury to persons being carried in or upon
\nentering or mounting or alighting from the vehicle at the time of
\noccurrence of the event out of which the claim arises, subject to the
\nexception which is indicated and provided by the expression ‘except
\nwhere the vehicle is a vehicle in which passengers are carried for
\nhire or reward or by reason of or in pursuance of contract of
\nemployment’. The Section 95 of Act of 1939 very clearly provides by
\nvirtue of proviso II inserted therein, with exception to the
\npassengers for hire or reward taken in the vehicles in which
\npassengers are taken for hire or reward or who are taken by reason of
\ncontract, Insurance Policy will not be required to cover the risk of
\nany person travelling in the vehicle who are not carried for hire or
\nreward. This Clause II to the proviso to Section 95 of Old Act has
\nbeen omitted from the new Act. The legislature has completely omitted
\nto enact this clause in proviso to Section 147(1) when it enacted
\nMotor Vehicles Act 1988. It is to be assumed and presumed that
\nLegislature when enacting the new Act and when enacting Section 147
\nknowingly changed the tenor of language and omitted proviso two to
\nSection 95 of Act of 1939 and did not incorporate that in Section 147
\nof Act of 1988. It intended to provide something different and
\nmodified from the Scheme of Section 95 of Old Act under Section 147
\nto that extent. It is well settled principles of law that if under
\nsubsequent Act, the legislature changes the tenor of language, omits
\ncertain provisions from being incorporated which existed at the time
\nof enactment of New Act replacing Old Act and the subject-matter, the
\nintention emerging therefrom i.e., the change has got to be given
\neffect to. The effect of change of language is revelation of
\nlegislative intent that expression ‘Any person’ and the third party
\nused in the Act will also include any person even travelling in the
\nvehicle without paying any hire etc. If the Legislature would not
\nhave different intents in enacting Section 147 of Act of 1988 than
\nrevealed by Section 95 of Old Act into, it would have incorporated in
\nextenso Section 95 of the Act of 1939 in the Act of 1988 as it did
\nexist in Act of 1939. The Parliament would not have omitted Clause II
\nto proviso to Section 95(1) when it enacted Section 147. Therefore,
\nin my opinion the expression ‘Third Party’ or ‘Any Person’ used in
\nSection 147 of Act of 1988 includes in itself even a person
\ntravelling in a private car. When I so opine, I find support from the
\nsingle Judge decision of High Court of Jammu and Kashmir in the case
\nof National Insurance Co. v. Faqir Chandra, (1996) 1 Acc CJ 111, as
\nwell as the decision of this Court in the case of United Insurance
\nCompany v. P.B. Laxman, ILR 1996 Kant 2224 and the decision of this
\nCourt in the case of Shantabai v. Shekappa, (ILR 1995 Kant 1637).
\nThus considered in my opinion the appeal has got no merits and I do
\nfind that the Tribunal has not committed any error of law or
\njurisdiction in holding that Insurance Co. is liable to pay that
\namount as the liability of the Insurance Co. runs with the liability
\nof the owner of the vehicle and so liability fastened under Section
\n140 will also be covered by the policy. The appeal as such is to be
\nhereby dismissed. It has been brought to my notice that the main
\nclaim is pending for decision. It is expected that Tribunal will
\nexpeditiously decide the matter as the occurrence had taken place
\nsome time in 1992. The appeal is thus dismissed and finally disposed
\nof and the Tribunal is directed to decide the petition within a
\nperiod of six months from the date of receipt of this order.”\n<\/p>\n
16.
\nIt is an admitted fact that after the Apex Court decided Shanthabai’s
\ncase (ILR 1995 Kant 1637), the Tariff Advisory Committee, Bombay, had
\nissued a circular to cover the risk of third parties, who are
\ngratuitous travellers and it is also an admitted fact that the Tariff
\nAdvisory Committee in that circular issued on 2-6-1986 stated that
\nthe comprehensive policy should cover liability to pillion passengers
\ntreating them as occupants in the motor cycle. The learned counsel
\nfor the appellant had also produced before me a copy of the circular
\ndated 2-6-1986 that came to be issued by the Tariff Advisory
\nCommittee, Bombay. As a matter of fact, in the first two appeals, the
\nappellant-Insurance Company had also issued Ex. R1-Policy in respect
\nof the Yezdi motor cycle bearing registration No. CNL 2338 and in one
\nof the terms and conditions under the heading “Liability to
\nthird parties”. It is set down therein as hereunder :\n<\/p>\n
“Subject
\nto the Limit of Liability as laid down in the Motor Vehicles Act the
\nCompany will indemnify the Insured in the event of accident caused by
\nor arising out of the use of Motor Vehicle anywhere in India against
\nall sums including claimant’s cost and expenses which the Insured
\nshall become legally liable to pay in respect of death of or bodily
\ninjury to any person and\/or damage to any property of Third Party.”\n<\/p>\n
17.
\nSimilarly the third appeal before the Tribunal, the
\nappellant-Insurance Company had also produced Ex. R1-Insurance Policy
\nin respect of the vehicle in question before the Tribunal below and
\nin page No. 1 of the said Insurance Policy, I find the similar term
\nin the said policy.\n<\/p>\n
18.
\nIn all the cases, therefore it is clear that the Insurance Companies
\nin question had issued Act policies but to cover the risk of the
\nthird parties too. That being so, I have got no hesitation to hold
\nthat the appellants Insurance Companies could be saddled with the
\nliabilities of compensating the respondents-owners in both the sets
\nof appeals.\n<\/p>\n
19.
\nIf the above term as at para (6) supra under the liability to third
\nparties read along with the provision in Section 147 of the Act in my
\nconsidered view, it is clear that the appellant-Insurance Company had
\ncovered the third party risk and that risk also included the risk
\ncaused by death or injury of pillion riders. Therefore, I have got no
\nreservation to uphold the impugned judgment and awards passed by the
\nTribunal in two sets of appeals. As a matter of fact, in yet another
\ndecision reported in ILR 1997 Kant 1491 : (1997 AIHC 2159), the
\nlearned single Judge of this Court had also held similar view and in
\nthe said decision, the learned single Judge held as hereunder :\n<\/p>\n
“In
\nthe present case, insurance policy was effective from 6-1-87 for one
\nyear i.e., 5-1-88, occurrence or incident causing injuries and death
\nof Gudinho, did take place on 27-2-87 i.e., all dates noted above
\nwere subsequent to 2-6-86 i.e., date of circular therefore, in the
\npresent case in view of amendment being applicable, it must be held
\nthat the policy covers the risk of pillion rider in the present case.
\nThat amendment in the clause of the policy covers the third party
\nrisk including death or bodily injury causes to any person including
\nthe person conveyed in or on the Motor-cycle and it is provided that
\nsuch person should not have been carried on for hire or reward, it
\nmay not cover that risk, but if a person is not carried on for hire
\nor reward, then company has undertaken the liability to compensate or
\nindemnify the insured for whatever sum it is required to pay as
\ncompensation to the claimant including the costs and the interest.”\n<\/p>\n
\t20.
\n\tTherefore, I am inclined to dismiss the two sets of appeals by
\n\tconfirming the impugned judgments and awards of the Tribunals below
\n\tin following the view taken by the learned single Judges of this
\n\tCourt in two different appeals referred to in paras (15) and (19)
\n\tsupra.??\n<\/p>\n
15.\tBy
\nmaking observations as aforesaid, Karnataka High Court has made clear
\npicture establishing contractual liability of insurance company by
\nrelying upon Circular dated 2nd June, 1986 issued by
\nTariff Advisory Committee and issue decided by Karnataka High Court
\nis squarely covering the matter at issue in case before hand and
\naccording to my opinion, that aspect has been rightly examined by
\nclaims tribunal in this case and has rightly relied upon circular
\nissued by Tariff Advisory Committee in respect to motor car by
\nrelying upon decision of this Court reported in 2007 (1) GLR page 567
\nin case of Naynesh H. Nanavati v. Dashrath R. Bhagat. Therefore,<\/a>
\nthough there are recent decisions of apex court that pillion rider
\nand owner or driver of motor cycle are not third party,  according to
\nmy opinion, those decisions are interpreting section 147 of Motor
\nVehicles Act alone and in those decisions, apex court has not
\nconsidered Circular dated 2nd June, 1986 issued by Tariff
\nAdvisory Committee for motor cycle and another circular relating to
\nmotor car and, therefore, in view of these facts involved in case
\nbefore hand wherein claims tribunal has considered said circular,
\ntherefore, those decisions of apex court are not applicable to facts
\nof this case as contractual obligation accepted by insurance company
\nas per Tariff Advisory Committee Circular dated 2nd June,
\n1986 and, therefore, now, insurance company cannot deny
\nresponsibility or liability to pay compensation to claimants by
\nrelying upon apex court decisions as referred to above, therefore,
\ncontentions raised by learned Advocate Ms. Megha Jani cannot be
\naccepted and same are, therefore, rejected.\n<\/p>\n
16.\tSimilar
\nto the view taken by Karnataka High Court as referred to above,
\nGujarat High Court has also considered similar question about
\ncontractual obligation on the part of insurance company on the basis
\nof Circular dated 2nd June, 1986 issued by Tariff Advisory
\nCommittee covering risk of pillion rider in case of Oriental
\nInsurance Co. Ltd. Versus Aayeshaben Wd\/o Suleman Patel in First
\nAppeal No. 7157 of 1999 dated 4th September, 2000. In said
\nmatter, note for speaking to minutes was filed and this Court passed
\norder thereon on 20.4.2001. Relevant observations made by Division
\nBench of this Court in said decision after considering said Circular
\nof Tariff Advisory Committee dated 2nd June, 1986 are
\nreproduced as under:\n<\/p>\n
?SPursuant
\n\t to  the  Note  for Speaking to Minutes filed by<\/p>\n
       Mr.K.K.Nair, learned advocate for the appellant, we  have
\n      taken up this matter.  There is consensus that, in para 9
\n      from  line 6 starting from “Undoubtedly” till “or any two
\n      wheelers”, and whole of para 10  in  our  judgment  dated
\n      4.9.2000  in First Appeal No.7157 of 1999, unfortunately,
\n      apparent and glaring factual mistakes have crept in  and,
\n      it  is,  rightly,  jointly,  submitted  that  in  view of
\n      reference of two  decisions  rendered  by  us,  in  First
\n      Appeal  No.1400 of 2000 and 1706 of 2000, both decided by
\n      our Bench, typographical mistakes have crept  in  due  to
\n      misconception  and  instead  of mentioning correct facts,
\n      apparent wrong facts, about the date  etc.    have  been,
\n      mistakenly, stated.  It is, therefore, submitted that the
\n      apparent  and  glaring  factual mistakes may be corrected
\n      and rectified by allowing the speaking to minutes.\n<\/p>\n
      We  are,  in  complete,  agreement  with  the  consensual
\n      statement.  Accordingly, para 9,  as  stated  above,  and
\n      para  10  of  the  judgment shall stand deleted and shall
\n      stand substituted by the following paragraphs:\n<\/p>\n
      \t\t  “9.\t    The date of accident in the present  case
\n              is 20.4.89, whereas, the Motor Vehicles Act, 1988
\n              came into  force from 1.7.89.  It is relevant, to
\n              point out here that the Tariff Advisory Committee
\n              had issued the circular dated 2.6.1986  to  cover
\n              the third  party  risk.  In this context, we feel
\n              it appropriate to quote the  said  circular  that
\n              came   to   be  issued  by  the  Tariff  Advisory
\n              Committee, a copy thereof had  been  supplied  to
\n              the   court   by  the  learned  counsel  for  the
\n              appellant, in the first appeal, the same reads as
\n              under:\n<\/p><\/blockquote>\n
\t       “(Private & Confidential: Issued for the  use  of
\n              insurers  carrying  on General Insurance Business
\n              in India).\n<\/p>\n
      \t\t\tTariff Advisory Committee
\n      \t\t\t\tBombay
\n      \t\t\tAdor House, 1st Floor,
\n      \t\t\t6, K. Dubash Marg,
\n      \t\t\tBombay 400 023.\n<\/p>\n
      \tMOT\/GEN\/10\t2nd June, 1986<\/p>\n
      \tTo:\n<\/p>\n
      \tAll Regional Offices of:\n<\/p>\n
      \t(1) National Insurance Co.  Ltd.\n<\/p>\n
      \tCalcutta.\n<\/p>\n
      \t(2)New India Assurance Co. Ltd.\n<\/p>\n
      \tBombay.\n<\/p>\n
      \t(3) Oriental Insurance Co. Ltd., Delhi.\n<\/p>\n
      \t(4) United India Insurance Co. Ltd.\n<\/p>\n
      \tMadras<\/p>\n
      \tGovt.  Insc.  Funds:\n<\/p>\n
      \t(1) Maharashtra State, Bombay
\n      \t(2) Gujarat State, Ahmedabad.\n<\/p>\n
      \t(3) Kerala State, Trivandrum.\n<\/p>\n
      \t(4) Karnataka State, Bangalore.\n<\/p>\n
      \tRe: Compensation to pillion riders.\n<\/p>\n
      \t\t  Insurer’s attention  is  invited     to   section
\n              II(1)(a)   of  standard  form  for  motor  cycle,
\n              comprehensive policy, sheet 59 of the IMT.\n<\/p>\n
       \t  It  has  now  been  decided  that  the   standard
\n              motorcycle   comprehensive  policy  should  cover
\n              liability to pillion passengers treating them  as
\n              occupants   in   the   motor  cycle  and  provide
\n              indemnity to such persons who are not carried for
\n              hire or reward.\n<\/p>\n
     \t\t  Accordingly,  the  extra  benefit  No.2  granting
\n              legal liability to cover side car passengers will
\n              stand   deleted  and  the  standard  cover  under
\n              section 2(1)(a) of the policy is worded as under:\n<\/p>\n
  \t\t  Death or bodily injury to  any  person  including
\n              person conveyed in or on the motor cycle provided
\n              such person is not carried for hire or reward.\n<\/p>\n
 \t\t  Insurers   are   requested   to  issue  necessary
\n              instructions to their  Divisional\/Branch  offices
\n              accordingly.\n<\/p>\n
      \t\t\t\t\tSd\/-\n<\/p>\n
      \t\t\t\t    (Y.D.Patel)
\n      \t\t\t\t    Secretary.\n<\/p>\n
\t       C.C.  to:  Head  Office  of  New  India\/National\/
\n              Oriental\/United   India,   Delhi\/Bombay\/Calcutta\/
\n              Madras  Regional  Committees,  General  Insurance
\n              Corporation   of   India,  Technical  Department,
\n              Bombay.  Govt.  Audit   Depts.   Bombay\/Calcutta\/
\n              Delhi\/Madras.”\n<\/p>\n
      \t\t  10.\t    But the position  has,  completely,  been
\n              changed  when  the New Motor Vehicles, 1988, came
\n              into force.  In section 147 of the new Act  which
\n              corresponds to section 95 of the old Act there is
\n              no  limit in certain cases as contained in clause\n<\/p>\n
              (ii) of the old Act.  The  corresponding  proviso
\n              in  the  old  Act contained three clauses whereas
\n              now there are only two clauses.  What was dropped
\n              in the new Act is the clause which  excluded  the
\n              coverage  for  death  or bodily injury to persons
\n              carried in or upon the vehicle.  That means  such
\n              liability cannot now be excluded from the policy.
\n              The  result is, when a policy of insurance ‘is an
\n              Act policy’, it does not  necessarily  mean  that
\n              the  insurance  company  will stand absolved from
\n              the liability in respect of the pillion rider  of
\n              a motor cycle.”\n<\/p>\n
      Office  is  directed  to  make  necessary  corrections as
\n      indicated hereinabove in the  original  judgment.    This
\n      note  for  Speaking  to  Mintues  shall stand disposed of<\/p>\n
accordingly.??\n<\/p>\n
17.\tSimilarly,
\nDivision Bench of this Court in case of  United India Insurance
\nCompany Ltd. Versus Shashikant R. Dhah Decd. Through Heirs Shardaben
\nS.Shah & 6., in First Appeal NO. 3532 of 1996, examined same
\nquestion on 5.2.2003. Relevant observations made by Division Bench of
\nthis Court in said decision are reproduced as under:\n<\/p>\n
?S\tIn
\n\t the  appeal  the  impugned  award  has   been<\/p>\n
       challenged  on the ground that the deceased was a pillion
\n      rider and the pillion rider would not be  a  third  party
\n      and,  not  covered  under  the contract of insurance and,
\n      therefore, the appellant – Insurance Company would not be
\n      liable to pay the compensation on account of death of the
\n      pillion rider on a scooter.\n<\/p>\n
      3.\tTariff   Advisory   Committee   of   the  General
\n      Insurance issued a circular dated 2.6.1986. Same reads as
\n      follows :-\n<\/p>\n
       \tTariff Advisory Committee
\n      \t\t\tBombay<\/p>\n
      \t\t\t\tAdor House, 1st Floor,
\n      \t\t\t\t5, K. Dubash Marg,
\n      \t\t\t\tBombay-400 023.\n<\/p>\n
      \t\t\t\t2nd June, 1986.\n<\/p>\n
      MOT\/GEN.10<\/p>\n
      To:\n<\/p>\n
      All Regional Office of:\n<\/p>\n
      (1)\tNational Insurance Co. Ltd.\n<\/p>\n
      \tCalcutta
\n      (2)\tNew India Assurance Co.  Ltd.\n<\/p>\n
      \tBombay
\n      (3)\tOriental Insurance Co. Ltd.\n<\/p>\n
      \tUnited India Insurance Co. Ltd.\n<\/p>\n
      \tMadras.\n<\/p>\n
      Govt. Insc. Funds:\n<\/p>\n
      (1)\tMaharashtra State, Bombay
\n      (2)\tGujarat State, Ahmedabad
\n      (3)\tKerala State, Trivandrum
\n      (4)\tKarnataka State, Bangalore<\/p>\n
      Re:\tCompensation to pillion riders<\/p>\n
      \tInsurer’s attention is invited to section II  (1)\n<\/p>\n
       (a)  of  standard  form  for  motor cycle, comprehensive
\n      policy, sheet 59 of the IMT.\n<\/p>\n
      \tIt has now been decided that the  standard  motor
\n      cycle  comprehensive  policy  should  cover  liability to
\n      pillion passengers treating  them  as  occupants  in  the
\n      motor cycle and provide indemnity to such persons who are
\n      not carried for hire or reward.\n<\/p>\n
      \tAccordingly,  the  extra  benefit  No.2  granting
\n      legal  liability  to cover side car passengers will stand
\n      deleted and the standard cover under section 2(1) (a)  of
\n      the policy is worded as under :\n<\/p>\n
       \tDeath  or  bodily injury to any person including
\n      any person conveyed in  or on the  motor  cycle  provided
\n      such person is not carried for hire or reward.\n<\/p>\n
      \tInsurers   are   requested   to  issue  necessary
\n      instructions  to  their  Divisional  \/   Branch   offices
\n      accordingly.\n<\/p>\n
      \t\t\t\t\t\tSd\/-\n<\/p>\n
      \t\t\t\t\t    (Y.D.Patil)
\n      \t\t\t\t\t    Secretary.\n<\/p>\n
      C.C.  to  :    Head  Office  of  New  India  \/ National \/
\n      Oriental \/ United  India.    Delhi\/  Bombay\/  Calcutta  \/
\n      Madras Regional    Committees.        General   Insurance
\n      Corporation  of  India,  Technical  Department,   Bombay.
\n      Govt.  Audit Depts.  Bombay \/Calcutta \/ Delhi \/ Madras.”\n<\/p>\n
      \tIt  will  be seen that the circular issued by the
\n      Tariff Advisory Committee of  the  General  Insurance  is
\n      binding to the appellant – Insurance Company.  As per the
\n      circular  the  pillion  rider would be a third party and,
\n      therefore, covered under the  contract  of  insurance  as
\n      “any person and the risk of the pillion rider also stands
\n      covered  under  the  insurance  policy  as  per the above
\n      reproduced circular.  It cannot be said that the deceased
\n      who was a pillion rider on the scooter  involved  in  the
\n      accident  would  not  be  covered  under  the contract of
\n      insurance, and the dependents  of  the  deceased  pillion
\n      rider would be entitled to claim compensation.\n<\/p>\n
      4.\tIn  the memo of appeal it has been contended that
\n      the quantum of compensation awarded is liable to  be  set
\n      aside  considering  the prospective income in view of the
\n      Exh.53 to 59 viz. Income-Tax Assessment Returns.\n<\/p>\n
      5.\tIt  is  not  disputed  that  no application under
\n      Section 170 of the Act was  preferred  by  the  Insurance
\n      Company before  the  claims  Tribunal.    In  view of the
\n      judgement in the case of Shankarayya and Anr Vs.   United
\n      India Insurance Co.    Ltd.   and Anr., AIR 1998 SC 2968,
\n      this ground is not available to the appellant – Insurance
\n      Company in absence of any application filed under Section
\n      170 of the Act before the claims Tribunal.\n<\/p>\n
      6.\tIn  view  of  the  above,  we  do  not  find  any
\n      substance in the appeal and the impugned award  does  not
\n      call for any interference for the reasons aforestated.??\n<\/p>\n
18.\tTherefore,
\nconsidering aforesaid two decisions of Division Bench of this Court,
\naccording to my opinion, submissions made by learned Advocate Ms.
\nMegha Jani cannot be accepted and therefore, same are rejected.\n<\/p>\n
19.\tThe
\npresent case is squarely covered by direction issued by Tariff
\nAdvisory Committee. The direction issued by  Tariff Advisory
\nCommittee applied to private vehicle including private car and two
\nwheelers. The direction of  Tariff Advisory Committee of 1978 gives
\nmandate to Insurance Co. to amend terms and conditions of policy, if
\nit is not amended accordingly, then same is having statutory force
\nbinding to Insurance Co. and terms and conditions is not amended
\naccordingly, then to take advantage denying liability of compensation
\nin case of pillion rider, cannot be accepted by this Court, because
\nthis aspect was not before Apex Court. But this very aspect has been
\nexamined by the Division Bench of this Court in case of
\nHarshvardhatiya Rudraditya (supra) and in case of Naynesh H. Nanavati
\n(supra).\n<\/p>\n
20.\tFollowing
\nobservations of Apex Court are very relevant and useful in respect to
\nthe subject examined by this Court. Therefore, lastly it is quoted as
\nunder. The observations made by Apex Court in National Insurance Co.
\nLtd. v. Abhaysing Pratapsing Waghela & ors. Reported<\/a> in 2008 AIR
\nSCW 6178 arising from judgment of the Gujarat High Court reported in
\nAIR 2007 (NOC) 750 (Guj.).\n<\/p>\n
?SA
\ncontract of insurance is to be governed by the terms thereof, but a
\ndistinction must be borne in mind between a contract of insurance
\nwhich has been entered into for the purpose of giving effect to the
\nobject and purport of the statute and one which provides for
\nreimbursement of the liability of the owner of the vehicle strictly
\nin terms thereof. In that limited sense, a contract of insurance
\nentered into for the purpose of covering a third party risk would not
\nbe purely contractual. And ordinary contract of insurance does not
\nhave a statutory flavour. The Motor Vehicles Act merely imposes an
\nobligation on the part of the Insurance Co. to reimburse the claimant
\nboth in terms of the Act as also the contract. So far as the
\nliability of the insurance co. which comes within the purview of
\nSections 146 and 147 is concerned, the same sub-serves a
\nconstitutional goal, namely, social justice. A contract of insurance
\ncovering the third party sick must, therefore, be viewed differently
\nvis-a-vis a contract of insurance qua contract.\n<\/p>\n
\t2007<\/span><\/p>\n
AIR SCW 2279, 2007 AIR SCW 2362, AIR SCW 4549, 1998  AIR  SCW 183 AND
\n2007 AIR SCW 7948, (Rel. onl).??\n<\/p>\n
21.\tTherefore,
\naccording to my opinion,  decision which has been relied upon by
\nlearned advocate Ms.Megha Jani is not applicable to the facts of this
\ncase because in this case, this Court has considered terms and
\nconditions of insurance policy after having implementation of
\ndirection of Tariff Advisory Committee which include as an occupant
\nin private vehicle pillion rider and that is how the Insurance Co. is
\nliable to pay  compensation to claimants. Therefore, the reliance
\nplaced by learned advocate Ms.Jani in case of Sudhakaran K. V.
\n(supra) and Tilak Singh (supra)  is not applicable to  exact facts of
\nthis case, because claims Tribunal has relied upon decision of this
\nCourt reported in 2007 (1) GLR 567, therefore, this Court has to
\nconsider  aforesaid decision which is based on direction issued by
\nTariff Advisory Committee. Therefore, this Court cannot simply
\nconsider policy as it is without amendment as per direction issued by
\nTariff Advisory committee. The policy which was considered by Apex
\nCourt in case of Sudhakaran K. V. (supra) and Tilak Singh (supra)
\nwithout amendment as per direction issued by Tariff Advisory
\ncommittee which is binding to Insurance Co., having statutory force,
\ndeeming fiction and also having retrospective effect. These are
\nobservations made by Division Bench of this Court in case of
\nHarshvardhatiya Rudraditya (supra). Therefore, I am considering this
\nFirst Appeal where award passed by claims Tribunal is under
\nconsideration  and the claims Tribunal has relied upon the decision
\nof this Court reported in 2007 (1) GLR 567 where direction of Tariff
\nAdvisory Committee was taken into account. Therefore, this Court has
\nalso considered same direction issued by Tariff Advisory Committee to
\neach Insurance Co. and on that ground, this Court is examining
\nwhether view taken by claims Tribunal is right or wrong or any error
\ncommitted by claims Tribunal or not. And on that ground, this Court
\nis considering award passed by claims Tribunal and according to my
\nopinion, claims Tribunal has not committed any error in deciding
\nissue relying upon decision of 2007 (1) GLR 567. Therefore, the
\nsubmissions made by learned advocate Ms.Jani cannot be accepted and
\nsame are rejected. Therefore, there is no substance in the present
\nappeal. Accordingly, present appeal is dismissed.\n<\/p>\n
22.\tThe
\namount, if any, deposited with this Court for the purpose of appeal
\nshall be transmitted to the Tribunal concerned.\n<\/p>\n
23.\tAs the First Appeal No.5007 of 2008 is dismissed, no order is necessitated in Civil Application No.12523 of 2008. Accordingly, Civil Application No.12523 of 2008 is disposed of.\n<\/p>\n
(H.K.RATHOD,J.)
\n(vipul)<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Icici vs Gitaben on 20 October, 2008 Author: H.K.Rathod,&Nbsp; Gujarat High Court Case Information System Print FA\/5007\/2008 1\/ 53 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 5007 of 2008 ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-60727","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nIcici vs Gitaben on 20 October, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/icici-vs-gitaben-on-20-october-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Icici vs Gitaben on 20 October, 2008 - 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