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2012 Supreme(Guj) 159
Hon’ble Mr. Acting Chief Justice Bhaskar Bhattacharya
National Insurance Company Limited
Versus
Koli Bhayabhai Rajsibhai & Ors.
First Appeal No. 1724 of 1993—Decided on 19/03/2012
Appearance :
Mr. Valmik Vyas for Mr. Sunil B. Parikh, for the Appellant No. 1.
Mr. B.R. Shah, for the Appellant No. 1.
Notice Served, for the Defendants No. 1 - 2.
None, for the Defendant No. 3.
Mr. R.C. Kakkad, for the Defendants No. 3.2.1, 3.2.2, 3.2.3, 3.2.4
Whether in the facts of the case Insurance Company is liable to pay compensation to the heirs of the victim.
Headnote:Head Note :
Motor Accident — Victim — Pillion rider of motor cycle — Claim for compensation by heirs of deceased — Comprehensive policy — Liability of insurance — Finding of — The copy of original policy placed before Court has a specific column for payment of additional premium for accident benefits to “unnamed driver/pillion passenger” and admittedly no premium was paid under the column which was specifically stated to be NIL — Tribunal while awarding compensation to heirs of the deceased on the case relied on the Notification of June 2, 1986 issued by Secretary Tariff Advisory Committee Bombay and held that victim pillion rider was not carried for hire or reward therefore heirs of the deceased were entitle compensation — In the case accident has taken place on November 3, 1985 which occured much before the date of alleged notification — Under the notification intention of conferring the new benefit is only from date of notification prospectively and not retrospectively consequently Insurance Company can not be held liable for payment of compensation even under the impugned notification issued much later — Court therefore amended the award only to the extent the Insurance Company will not be liable to pay the amount — The amount will be realized from the owner of the vehicle concerned.
Held :
Although there was a specific column for payment of additional premium for accident benefits to “unnamed driver/pillion passenger” as per END IMT.70 and also for accident benefits to insured as per END IMT. 4[b], no amount of premium was paid under those columns which were specifically stated to be “NIL”. [Para 7]
That the finding of the Tribunal that it was comprehensive enough to include the death of a pillion rider was on the face of it erroneous inasmuch as no premium was paid to cover the accident benefit to the unnamed driver/pillion passenger. [Para 8]
After going through the said notification, Court find that the notification, uses the phrase “It has now been decided”
Thus, the intention of conferring the new benefit only from the date of notification prospectively and not retrospectively was abundantly clear. [Para 15]
Consequently, Court find substance in the submission that in the facts of the present case, the Insurance Company has no liability to pay the compensation. [Para 19]
Law Laid Down :
Whether a particular notification is only prospective and retrospectively in application has to be gathered from the contents of notification.
Bhaskar Bhattacharya, ACJ.—This First Appeal is at the instance of the Insurance Company and is directed against an Award dated April 23, 1993, passed by the Motor Accident Claims Tribunal, Junagadh, [“Tribunal”] in Motor Accident Claim Petition No. 193 of 1986, by which the Tribunal disposed of the said application for compensation by awarding a sum of Rs. 1,40,000/- with interest at the rate of 12% per annum from the date of filing of the application till deposit with proportionate costs.
2. Being dissatisfied, the insurer of the offending vehicle has come up with the present Appeal.
3. There is no dispute from the evidence on record that on November 3, 1985, while the victim was traveling on the motorcycle as a pillion rider, due to the negligence on the part of the motorcycle driver, an accident occurred. In the said accident, no other “motor vehicle” within the meaning of Motor Vehicles Act was involved. It appears from the materials on record that the owner of the said motorcycle had a comprehensive insurance agreement with the appellant in respect of the said vehicle, which commenced from September 23, 1985 and ended on September 22, 1986. Therefore, admittedly the accident occurred during the validity of the said insurance policy.
4. The only point raised in this Appeal by the insurer is that having regard to the fact that the victim was not a third party but a pillion rider of the insured vehicle, his heirs were not entitled to get compensation within the terms of the insurance coverage.
5. The learned Tribunal below, on consideration of the materials on record, concluded that although in case of a third party coverage, a pillion rider of a motorcycle is not protected, the policy in question being a comprehensive one, the Insurance Company was bound to pay the amount of compensation arising out of the accident.
6. Therefore, the sole question that arises for determination in this appeal is whether, within the terms of the insurance coverage, the pillion rider was also included.
7. The copy of the original policy has been placed before me. It appears that the policy itself was described as one covering a comprehensive risk. A sum of Rs. 78/- was taken from the insured as premium for his own damage and a further sum of Rs.100/- was taken as premium for I.E.V. and on electrical/electronic fittings of the vehicle. In addition to that, a further amount of Rs. 48/- was taken as liability to public risk, meaning, third party risk. Although there was a specific column for payment of additional premium for accident benefits to “unnamed driver/pillion passenger” as per END IMT.70 and also for accident benefits to insured as per END IMT. 4[b], no amount of premium was paid under those columns which were specifically stated to be “NIL”. Thus, the total amount of premium paid was Rs. 226/-.
8. By relying upon the abovementioned policy, Mr. Valmik Vyas, the learned advocate appearing on behalf of the appellant, strenuously contended that the finding of the Tribunal that it was comprehensive enough to include the death of a pillion rider was on the face of it erroneous inasmuch as no premium was paid to cover the accident benefit to the unnamed driver/pillion passenger.
9. Mr. R.C. Kakkad, the learned advocate appearing on behalf of the claimants, on the other hand, opposed the aforesaid contention of Mr. Vyas by placing strong reliance upon a decision of a Division Bench of this Court in the case of Minor Harshvardhatiya Rudraditya, through his next friend Shri Govindbhai D. Parmar and another vs. Jyotindra Chimanlal Parikh and others, reported in 1981 ACJ 277. According to Mr. Kakkad, the learned Tribunal rightly relied upon the Notification dated June 2, 1986 issued by the Secretary, Tariff Advisory Committee, Bombay, wherein, it was specifically provided that extra benefit No. 2 granting legal liability to cover side car passengers will stand deleted and Standard Cover under Section 2[1][a] of Policy should be re-worded a
