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2015 Supreme(UK) 588
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Servesh Kumar Gupta, J.
The New India Assurance Co. Ltd. - Appellant
Vs.
Kunwar Singh Bisht & Another - Respondent
Appeal from Order No. 295 of 2008
Decided On : 16-11-2015
For the Appellant :Mr. V.K. Kohli, Sr. Advocate assisted by Mr. I.P. Kohli, Adv.
For the Respondent: Mr. P.S. Rawat and Mr. Ramji Srivastava, Adv.
Interpretation of insurance policy coverage and the liability of the insurance company in the context of a motor accident involving a pillion rider.
Headnote:
Insurance - Motor Accident - Interpretation of Third Party Coverage
Fact of the Case:
Mr. Jai Pal Singh Bisht suffered serious injuries and succumbed to them after a scooter accident. The claim petition by the deceased's father was allowed, awarding compensation. The insurance company challenged the award, arguing that the scooter was insured only for third party coverage.
Finding of the Court:
The court found that the scooter was insured only for third party coverage, and the pillion rider was not covered under the policy. The court allowed the appeal, setting aside the previous judgment and ordering the return of fifty percent of the awarded amount to the insurance company.
Issues: Interpretation of insurance policy coverage for a scooter accident involving a pillion rider and the liability of the insurance company.
Ratio Decidendi: The court relied on the interpretation of the insurance policy and relevant legal precedents to determine that the pillion rider was not covered under the third party policy.
Final Decision: The appeal was allowed, and the impugned judgment and order were set aside. Fifty percent of the total awarded amount deposited by the insurance company was ordered to be returned, and the remaining amount was to be returned by the claimant to the insurance company.
SERVESH KUMAR GUPTA, J.
The judgment and order dated 30.05.2008, rendered by Additional District Judge/FTC-II, Dehradun, has been challenged by the Insurance Company on the ground that the learned Tribunal has awarded the compensation to the tune of Rupees One Lakh Twenty Three Thousand to the father of the deceased.
2. Mr. Jai Pal Singh Bisht was a pillion-rider on the scooter, owned and driven by Mr. Bhagwan Singh Manwal (respondent no. 2 herein) on 24.04.2005 at 09:00 P.M. Somehow, the scooter met with the accident due to rash and negligent driving of Mr. Bhagwan Singh Manwal and in such accident, Mr. Jai Pal Singh Bisht suffered serious injuries.
3. During the course of his treatment, he succumbed to such injuries on 01.05.12005. The claim petition was filed by Mr. Kunwar Singh Bisht, father of the deceased, which was allowed by granting the award, as mentioned above.
4. Learned Senior Counsel on behalf of the Insurance Company has urged that since the scooter, in question, was insured only for the third party, so the policy was only the Act policy and this fact can well be gathered from the photostat copy of the insurance policy paper nos. 26-C/1 to 26-C/4, which was filed before the learned Trial Judge.
5. Learned Senior Counsel of the Insurance Company has relied upon the precedent of Hon'ble Apex Court, in the case of “Oriental Insurance Company Limited v. Sudhakaran K.V., reported in 2008 Vol.71 ALR 770. This was a Civil Appeal No. 3634 of 2008, wherein the judgment was rendered by the Hon'ble Apex Court on 16.05.2008.
6. The facts of such case are quite similar to the present controversy and in the law laid down in such case, Hon'ble Apex Court placed reliance on another decision of the selfsame Court in the case of “New India Assurance Co. Ltd. v. Asha Rani, (2003) 2 SCC 223, wherein, the question, whether a pillion rider on a scooter, would be a third party within the meaning of Section 147 of the Act, was well answered in negation, viz. a pillion rider on a scooter will not be covered within the definition of the third party and he would simply a gratuitous passenger. At a number of times, it has been held that a gratuitous passenger in a goods carriage would not be covered by a contract of the insurance, entered into between the insurer and the owner of the vehicle.
7. Learned counsel of the claimant has drawn the attention of this Court towards the sitting capacity of a scooter stated to be “2” in the insurance cover note itself. The sitting capacity “2” (two) does not mean that the persons, by whom scooter is being driven, as well as pillion rider, are covered by the act policy. Further, the second page of cover note of policy paper no. 26-C/2 specifically evinces that the basic premium, which was paid to the Insurance Company, was only for T.P. i.e. third party. By no stretch of imagination, the pillion rider or even the person, who was driving the scooter, can be covered within the definition of a third party.
8. As regards the admissibility of the photocopies of such cover note, I feel that for adjudicating the claim matters under the motor accident cases, such copies are admissible in the Evidence Act. The degree of admissibility is not to be adjudged strictly on the basis of principles of the Evidence Act in such matters. More so, the liability to file the original insurance policy was upon the opposite party no. 2 Mr. Bhagwan Singh Manwal, who was the owner of the scooter as well as driving the same at the relevant time, but he did no do so. In such an eventuality, the Insurance Company cannot be expected to file another original cover note because that had already been issued to the vehicle owner.
9. In view of what has been stated above, this appeal is hereby allowed. Impugned judgment and order dated 30.05.2008 is set aside. Let, the fifty per cent amount of the total award, lying in the form of TDR, so deposited by the Insurance Company, shall be returned to such Company along with the interest earne
