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IN THE HIGH COURT OF PUNJAB AND HARYANA
Rajbir Sehrawat, J.
Shiv Lochan Singh @ Bhola – Appellant
Vs.
National Insurance Co. Ltd. – Respondent
FAO No. 4287 of 2005(O&M) and XOBJC No. 57-CII of 2013
Decided On : 27-11-2017
(i) that the passenger travelling in private passenger car and a pillion rider on a Motor Cycle are entitled to raise a claim against the owner/insurer for the injury sustained while travelling in such car or as a pillion rider on such Motor Vehicle – However, to sustain their claim as third party such passenger in private passenger car or such pillion rider shall have to plead and prove that the owner/driver of such private passenger car or the Motor Cycle has been negligent in driving the said car or the motor cycle at the time of accident.
(ii) In terms of Act of 1988 it is clear that whosoever is entitled to raise a claim against the owner/insured or the insurer is the third party.
(iii) Concept of Gratuitous passengers is not applicable to private passenger of a car/two wheeler. (Para 40)
(iii) With the omission to exclude the passengers travelling in private passenger car and motorcycle, the scope of Section 147(1)(b)(i) stood extended automatically, to include even the passengers travelling in private passenger car and pillion rider of a motorcycle. (Para 26)
(iv) In any case, the Comprehensive or Package Policy would cover all the persons in all the vehicles, including the passengers in the private passenger car and the pillion rider – These circulars nowhere prescribed that under the provisions of the New Act there can be a separate 'Act Policy' or that under the New Act the passengers in private passengers vehicles or the Pillion rider shall not be covered under the 'Act Policy'. These circulars only advised the Insurance Companies not to make attempts to avoid liability even in those cases where, admittedly, the policy was a Comprehensive or Package Policy. (Para 43)
(v) No doubt as a regulatory authority to regulate and develop the Insurance business the IRDA has every power to decide the premium to be charged by insurance companies, including the premium for third party risk cover – However, the premium to be prescribed for third party risk has to be only a consolidated and single amount – IRDA does not have any authority to prescribe extra and separate amount even to cover the third party risk because that would tantamount to violation and dilution of the scope of compulsory Insurance prescribed under Section 147(1)(b)(i); qua third party by taking such an insurance in the realm of optional insurance – IRDA can not issue any direction which makes the prescribed Compulsory Insurance an optional Insurance by giving option to the owner whether to purchase it or not by paying extra premium. (Para 44)
Rajbir Sehrawat, J.
This order shall dispose of FAO No. 4287 of 2005 and the Cross Objections No. 57-CII of 2013, filed in the appeal.
2. The appeal and the cross objections arise from the award passed by the Motor Accidents Claim Tribunal, Patiala, whereby the compensation of Rs. 3,90,000/- was awarded to the claimants, on account of death of Jai Singh, in a motor vehicle accident. In the award, the Insurance Company was given the recovery rights against the owner and the driver. Therefore, the owner and the driver has filed the present appeal. On getting notice of the appeal, the claimants have filed Cross Objections and have claimed the enhancement of compensation; on the ground that the compensation awarded in the case was grossly insufficient.
3. The brief facts of the case are that on 29.08.1999, Jai Singh was travelling in Maruti Car; bearing Registration No. CHK-1488, belonging to respondent No. 1 and also being driven by him. When the car reached near village Budhmore, a cow was seen coming on the road. Respondent No. 1; who was driving the car negligently and carelessly; at a very high speed, struck the car against the culvert on the right side of the road. As a result thereof, the accident happened and Jai Singh received multiple injuries. He was rushed to a private hospital at Patiala. Since the injuries were serious therefore, later; he was admitted in Rajindra Hospital, Patiala, where he was kept in Intensive Care Unit till 13.09.1999. However, he succumbed to the injuries and expired on 13.09.1999.
4. On account of this accident, the claimants, who are the widow and the minor sons and daughters of the deceased; filed a claim petition. It was averred in the claim petition that the deceased was 25 years of age. He was a photographer by profession. It was further pleaded that he was earning monthly income of Rs. 7,500/- from the photography work and Rs. 3,000/- from the agriculture work. Hence the compensation was claimed.
5. On getting notice, respondent No. 1 filed his written statement. Respondent No. 1 denied that the deceased was travelling in his car. It was denied that respondent No. 1 has ever driven the car in question in rash and negligent manner; as alleged. It was further denied that the deceased suffered injuries or was admitted in hospital. It was denied that the respondent No.1 was liable to pay the amount of compensation. It was further averred that, in any case, if the accident is proved, then; the vehicle was duly insured with respondent No. 2, the insurance company. In that eventuality, it is the Insurance Company which shall be liable to pay the compensation.
6. Respondent No. 2, the Insurance Company filed separate written statement and denied the accident as such. It was further denied that the deceased died as a result of the accident with the offending vehicle. It was further claimed that the respondent No. 1 was not holding the valid and effective driving license and further that he was plying the offending vehicle on hire/taxi, by violating the terms and conditions of the policy. As such it was claimed that the insurance company was not liable to pay the compensation. It was further claimed that the respondent No. 1 was carrying the passengers in the offending car. Since the premium was charged for 'Act Policy' only, as such respondent No. 1 had violated the terms and conditions of the policy. It was further claimed that respondent No. 1 was not authorised to carry the passengers in the car in question.
7. The claimants led the evidence to substantiate their claim. The respondent driver produced the Registration Certificate of the car as Ex:R3 and the Insurance Policy of the offending vehicle was produced on record as Ex:R4. Respondent Insurance Company did not lead any evidence in the case.
8. After hearing the parties and perusing the record, the Tribunal held respondent No. 1 to
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