Partly allowed

The United India Insurance v. Navaneetham Ammal

Madras HC11 Sept 2024CMA(MD)/465/2016

Case brief

AI extract

What is this about?

This court allowed the appellants' appeal to enhance accident compensation awarded by the Motor Accidents Claims Tribunal from Rs.25,44,691 to Rs.36,81,340 by uprating deceased income. The court dismissed the insurance company's appeal, holding they remained liable despite the deceased being a vehicle owner under comprehensive policy.

What did the court decide?

Compensation enhanced from Rs.25,44,691/- to Rs.36,81,340/-; insurance company's appeal dismissed.

The United India Insurance Vs Navaneetham Ammal — Motor Accident Claims | Madras HC (2024)

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C.M.A(MD). Nos.465 & 1039 of 2016

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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Dated :11.09.2024

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CORAM:

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THE HON'BLE Mrs. JUSTICE V.BHAVANI SUBBAROYAN AND THE HON'BLE Mr. JUSTICE K.K.RAMAKRISHNAN

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C.M.A(MD). Nos.465, & 1039 of 2016 and C.M.P.(MD).No.6046 of 2016

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C.M.A.(MD).No.465 of 2016:

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The United India Insurance Co.Ltd., Chennai. ... Appellant/2^nd Respondent Vs.

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Navaneetham Ammal

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Lakshmi Kumar

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Aisvarya Santhiyanayagi

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Mangalanayagi

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Vathsala Nayagi 6. Gokulnathan ... Respondents 1 to 6/Petitioners 1 to 6

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Managing Director, Tamil Nadu Government Transport Corporation, Kumbakonam. ... 7^th Respondent/1^st Respondent

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C.M.A(MD). Nos.465 & 1039 of 2016

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Prayer : Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicle Act, 1988, praying to set aside the Judgment and Decree dated 31.12.2014 passed in M.C.O.P.No.197 of 2003 on the file of the Hon'ble

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Motor Accidents Claims Tribunal (Chief Judicial Magistrate), Thanjavur at Kumbakonam.

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For Appellant : Mr.G.Prabhu Rajadurai For Respondents : Mr.S.Sankara Pandian for R1, R2, R4 to R6 : Mr.A.V.B.Krishna Kanth, Standing Counsel for TNSTC for R7

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C.M.A.(MD).No.1039 of 2016:

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Navaneetham Ammal

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Lakshmi Kumar

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Iswariya Sathianayagi

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Mangalanayagi

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Vatchalanayagi 6. P.Gokulnathan ... Appellants/Claimants

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Vs.

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The Managing Director, Tamilnadu State Transport Corporation, Kumbakonam.

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United India Insurance Co., Ltd., 730, 2^nd Floor, Annasalai, Chennai- 600 006. ... Respondents/Respondents

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Prayer : Civil Miscellaneous Appeal filed under Section 173 (1) of Motor

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Vehicle Act, 1988, praying to allow the Appeal so as to Enhance the Compensation to the tune of Rs.20,00,000/- in addition to the compensation awarded by the Tribunal by modifying the Judgment and Decree dated 31.12.2014 made in M.C.O.P.No.197 of 2003 on the file of the Motor Accident Claims Tribunal/Chief Judicial Magistrate, Thanjavur at Kumbakonam.

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For Appellants :Mr.S.Sankarapandian for 1, 2, 4 to 6

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For Respondents : Mr.A.V.B.Krishna Kanth, Standing Counsel for TNSTC for R1 : Mr.G.Prabhu Rajadurai for R2

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C.M.A(MD). Nos.465 & 1039 of 2016

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COMMON JUDGMENT

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[Order of the Court was made by K.K.RAMAKRISHNAN, J.]

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The appellant/insurance company in C.M.A.(MD).No.465 of 2016 has filed this appeal challenging the negligence and liability passed in M.C.O.P.No.197 of 2003, dated 31.12.2014, by the Hon'ble Motor Accidents Claims Tribunal (Chief Judicial Magistrate), Thanjavur at Kumbakonam.

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2.The appellants in CMA.(MD).No.1039 of 2016 has filed this appeal to Enhance the Compensation to the tune of Rs.20,00,000/-, Rs.1,00,000/-, Rs.1,00,000/- and Rs.50,000/- in addition to the compensations awarded by the Tribunal by modifying the Judgment and Decree dated 31.12.2014 passed in M.C.O.P.No.197 of 2003 on the file of the Motor Accident Claims Tribunal/Chief Judicial Magistrate, Thanjavur at Kumbakonam.

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3.For better appreciation of the facts, the ranks of the parties mentioned in the M.C.O.P.No.197 of 2003 is followed hereunder.

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4.One Premkumar Vandaiyar is the owner of the Toyota Qualis bearing Registration No.TN 02 K 339. On 23.06.2001, at about 05.30 p.m the said Premkumar Vandaiyar and his brother Ravichandran and brotherin-law Balasubramanian and his worker Velu proceeded towards the Nagapattinam main road and the said vehicle was driven by his driver Sethuraman. Following said car, the said prekumar Vandaiyar's another brother-in-law Dr.Varatharajan proceeded in the said road in his car Matiz. Sethuraman was driving the vehicle in Mariammankoil bypass road, Near Pakkulam-Thalavaipalayam Village. On the opposite, the seventh respondent's bus bearing Registration No.TN 49 N 0990 driven by his driver in a rash and negligent manner dashed against the Qualis car, as a result, the front side of Qualis got damaged and fell into nearby paddy field. Then, the injured persons were taken to the Vinothan Hospital, Thanjavur and in the said hospital, the said premkumar vandaiyar was admitted from 23.06.2001 to 29.06.2021 as inpatient and subsequently, he was taken to Apollo Hospital, Chennai. In the Apollo Hospital, took treatment upto 06.07.2001 and died on 06.07.2001. The FIR was registered against the driver of the Qualish in Crime No.278 of 2017. The accident happened due to the entire

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negligence on the part of the Transport corporation driver. The insurance company is liable to pay compensation. The deceased Premkumar Vandiyar is a land lord and also doing multiple business and hence, his wife and children and his mother filed claim petition claiming compensation of Rs. 1,10,00,000/-.

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5.The first respondent namely Transport Corporation filed a counter denying the allegations that the Transport Corporation was responsible for the allegation and specifically denied the negligence on the part of the driver of Transport Corporation. Only due to the rash and negligence drivng of the Qualis driver, the accident happened. He specifically pleaded that the Qualis car was driven by his driver in a rash and negligent manner and the said driver without noticing on coming Government bus crossed his lane and dashed against the left side wheel of the bus and thereafter, fell into paddy field. Therefore, the driver of the Qualis car is responsible for the accident.

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6.The insurance company filed a counter denying the statement made by the corporation bus and it is specifically stated that only due to the rash

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and negligent driving on the part of the driver of bus, the accident happened and hence, the corporation is liable to pay compensation.

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7.The insurance company also raised plea that the Premkumar Vandiyar is the owner of the car and hence, the insurance company is not liable to pay compensation. He cannot be treated as third party and not liable to pay compensation.

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8.On the side of the claimants, P.W.1 to 4 were examined and exhibited 27 documents as Ex.P.1 to Ex.P.27. On the side of the respondent, R.W.1 to R.W.5 were examined and exhibited 6 documents as D.W.1 to D.W.6 and two material objects were marked as M.O.1 and M.O.2.

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9.The learned trial Judge considered the evidence and fixed the negligence on the part of the driver of the Qualis and granted compensation of Rs.25,44,691/-, to the claimants. Aggrieved over the same, the Insurance Company has preferred the appeal in C.M.A.(MD).No.465 of 2016. The claimants filed the appeal in C.M.A.(MD).No.1039 of 2016, challenging the 7/34

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finding of the negligence on the driver of the Qualis Car and to enhance the compensation amount. Since both the appeals have arisen from M.C.O.P.No.197 of 2003, on the file of the Motor Accident Claims Tribunal/Chief Judicial Magistrate, Thanjavur at Kumbakonam, both are taken together, and this common judgment is passed.

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10.This Court considered the rival submissions made by the learned counsel appearing on either side and perused the materials available on record and the impugned judgment and the precedent relied upon by them.

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11.The point for determination arise that for the consideration of

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these appeals are as follows:

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(i)Whether the learned tribunal Judge is correct in fixing the

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negligence on the part of the driver of the Qualis Car?

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(ii)Whether the learned tribunal Judge correctly fixed the liability

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upon the insurance company for the death of the occupant of the car?

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(iii)Whether the claimants are entitled to enhanced compensation?

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12 . Discussion on negligence:

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The deceased Premkumar Vandaiyar, was the leader of a political party namely, Movendar Munnetra Kalagam, and was the owner of the Toyoto Qualis bearing Registration No.TN 02 K 339. Its driver was one “ Sethuraman(P.W.4)” not examined. On 23.06.2001, at about 05.30 p.m the said Premkumar Vandaiyar and his brother “ Ravichandran (P.W.2)” and brother-in-law “ Balasubramanian(P.W.2) not examined” and his worker “ Velu(P.W.3) not examined ” were proceeding in Thanjavur to Nagapattinam road and the said car was driven by the said Sethuraman. Following that car, the said Premkumar Vandaiyar's another brother-in-law Dr.Varatharajan and his friends were proceeding in a car. It is alleged by P.W.2 that when their Qualis car was proceeding in the Mariammankoil bye pass road, Near Pakkulam-Thalavaipalayam Village, R.W.1/Krishnamoorthy drove the transport Corporation bus bearing Registration No.TN 49 N 990 in the opposite direction in a rash and negligent manner and dashed against the Qualis car. In the result, the Qualis car got damaged and fell into the paddy field on the southern side of the East-West road. The said Premkumar Vandaiyar sustained serious injuries and P.W.1, P.W.2, Driver, 9/34

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Balasubramanian and Velu also suffered injuries. All were taken to the Vinodhagan hospital, Thanjavur. The jurisdiction Police namely Ammapettai Police Station registered a case against the driver of the Qualis Car, namely, Sethuraman in Crime No.278 of 2001. P.W.1/Ravichandran filed the M.C.O.P.No.198 of 2003, on the file of the Motor Accident Claims Tribunal/Chief Judicial Magistrate, Thanjavur at Kumbakonam, claiming compensation of Rs.5,00,000/-, P.W.2 filed M.C.O.P.No.199 of 2003, claiming compensation of Rs.5,00,000/- and P.W.4/Sethuraman filed M.C.O.P.No.3 of 2006 claiming compensation of Rs.5,00,000/-, stating that the accident happened due to the negligence of R.W.1 and hence, the second respondent transport corporation is liable to pay above prayed compensation.

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12.1.The occurrence took place in the East-West 26 feet width Thanjavur Nagapattinum road. The bus was proceeding towards Thanjavur in west to east direction. The Toyota Qualis car was proceeding towards Nagapattinum, in the east to west direction. Both vehicles were proceeding in opposite direction in uncontrolled speed in a helter skelter way in east to west direction, and seeing this R.W.1 stopped his bus on the left side of the

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road. The Qualis car veered off into the lane of Bus and dashed the right side wheel of the bus and hit the sludge bridge and fell into the paddy field, instead of going in the lane meant for “car” towards the west direction. In result, the accident occurred and all occupants of qualis car sustained injuries and right side wheel of bus got mangled and the left side of the quaslis car got damaged. The said fact is clearly deposed by R.W.1. The same was corroborated with the telltale marks noted in the sketch marked as Ex.P3 and photo marked. The FIR was registered against the qualis car driver P.W.4 and final report was filed against him by examining the relative of the said PremKumar Vandaiyar. P.W.2 deposed that the driver R.W.1 was responsible for the accident. This evidence is not corroborated with anyother evidence and also against the factual situation namely the complete damage of the right side wheel of the bus, which is evidenced from the photograph marked as M.O.1. The said photograph was marked through R.W.4 along with negative. Therefore, the same is admissible. From the perusal of the said photograph, it is clear that the vehicle was completely damaged on the right side of the wheel and hence, there was no possibility of the bus moving further as claimed by P.W.1. Therefore, the version of P.W.2 that the accident happened due to the negligence of R.W.1

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deserves to be rejected. In this aspect, the learned trial Judge appreciated the above evidence in proper manner without any infirmities and this Court finds no perversity in the said findings of fixing negligence on the qualis car driver.

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12.2.R.W.3 passenger travelled in the bus in her chief examination, clearly deposed that the accident happened due to the negligence of qualis car driver. But during her delayed cross examination she stated that she knew only about the qualis car falling down in the paddy field after the accident and she did not know any other facts. But she admitted that she read the proof affidavit and signed the same upon understanding the contents of the proof affidavit. The said evidence was appreciated by the learned trial Judge that she was won over later. This Court also concurs with the said finding of the learned trial Judge. The said Premkumar Vandaiyar was the President of the political party namely Moovendhar Munnetra Kalagam. In the said circumstances, it is quite natural R.W.3 disowned her chief examination because of influence. As per the law laid down by the Hon'ble Supreme Court reported in 2015 3 SCC 220 , in the case of Vinod Kumar Vs. State of Punjab when the witness deposed in the chief 12/34

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examination, disowns the statement in the delayed cross examination, the chief examination can be taken into consideration. Apart from that, when the witness deposed contrary to the chief examination in the belated cross examination as held by the Hon'ble Supreme Court her version in the chief examination is to be considered. Hence, this Court accepts the version of R.W.3 in the chief examination and concurs with the reasoning of the learned trial Judge that she was unable to remember the occurrence place and after accident, the qualis car totally went off its lane and veered into the extreme lane of the bus and rammed the right side wheel of the bus and causing total damage to the right side wheel of the bus which itself proves that P.W.4 drove the car as deposed by R.W.1 in a rash and negligent manner in an uncontrolled speed and caused the accident. In the said facutal circumstances, this Court applies the principle of “ res ipsa loquitur”. Apart from that, R.W.1 was subjected to the incisive cross examination and he reiterated his stand, even in the cross examination. Therefore, his evidence is cogent and trustworthy and the same is supported with the documents and photographs and the final report and also records of the criminal case. In view of the above discussion, this Court concurs with the reasoning of the learned Tribunal Judge, in believing the evidence of 13/34

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R.W.1 and disbelieving the evidence of P.W.1, P.W.2, P.W.3 and P.W.4, which are contrary to Ex.P3 and the Photograph C.W.1 and C.W.2.

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12.3. The tribunal considering the evidence of R.W.1 and

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disbelieving the evidence of P.W.2 fixed the negligence on the part of the driver of the Qualis. In this case, the driver of the Qualis also not examined. He is the competent person to depose about the negligence aspect. Hence, this Court considering the above all the aspects concurs with the finding of the learned trial judge in fixing the negligence on the part of the driver of the Qualis car and fixing the liability upon the insurance company.

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13. Discussion on Liability:

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According to the insurance company, the deceased was the owner of the vehicle. He died in the accident. Hence, the liability is not fastened upon the insurance company.

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13.1.This Court to consider the said submission, perused the policy marked as Ex.R5. The “policy is B policy namely comprehensive policy”. In the said policy, “comprehensive premium” is paid. In the case of the

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comprehensive policy, the insurance company is liable to pay compensation to the occupants of the car, in any capacity. Further, the officer from the insurance company was examined as R.W.5. He deposed that Ex.R5 is a Xerox copy of the insurance policy and there was no condition to disown the liability to pay compensation when the owner was the occupant of the car and met with an accident and died, R.W.5 evidence is as follows:

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rh.M.5 vq;fs mYtyfj;jpy; toq;fpa rhd;wplg;gl;l efy; MFk;. v.k.rh.M.5 y; epge;jidfs; vJTk; ,y;iy vd;why; rhpjhd;. From the perusal of the policy and evidence of R.W.5, there is no restriction to pay compensation. When there was no restriction in the policy and to make payment, the insurance company is liable to pay compensation.

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13.2.In the case of the ambiguity in the policy, the liability cannot be absolved and in view of the beneficial social legislation, the interpretation is given in favour of the claimants. R.W.4 and another official from the insurance company were examined. R.W.4 deposed that in the counter, it is stated that on behalf of insurance company in the event of finding that the car driver was negligent and would have caused the accident, the company is liable to pay the compensation. The material portion of the deposition is

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as follows:

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kDtpy; 9tJ ghuhtpy;. 2Mk; vjph; kDjhuiu. mt';fSila thfdj;ij Xl;oa oiuthpd; ftdf;Fiwt[. m$hf;fpuija tpgj;J ele;jJ vd;W ePjpkd;wk; fUjpdhy; 2Mk; vjph;kDjhuuhfpa eh';fSk; ec&;l<L bfhLf;f ntz;Lk; vd;W brhy;yg;gl;Ls;sJ vd;why; rhpjhd;/

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In the said circumstances, the learned Tribunal judge considered the various judgments of the various Courts and made detailed discussion and found that the insurance company is liable to pay compensation.

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13.3.In order to appreciate the contention of the learned counsel and to consider whether the finding of the learned trial judge that the insurance company is liable to pay compensation to the occupants of the car is correct or not? this Court is duty bound to revisit the law on the liability of the insurance company to pay the compensation to the occupants of the car. The entire policy with the condition has not been marked by the insurance company before the Court below. The Hon'ble Supreme Court in the case of Insurance Co. Ltd. v. Jugal Kishore , reported in (1988) 1 SCC 626 at page 632 directed to mark the terms and conditions of the policy in order to consider the defence of the insurance company and also to render a fair

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justice in the following words:

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10. Before parting with the case, we consider it necessary to refer to the attitude often adopted by the Insurance Companies, as was adopted even in this case, of not filing a copy of the policy before the Tribunal and even before the High Court in appeal. In this connection what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. This Court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. In many cases even the owner of the vehicle for reasons known to him does not choose to produce the policy or a copy thereof. We accordingly wish to emphasise that in all such cases where the Insurance Company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with its defence. Even in the instant case had it been done so at the appropriate stage necessity of approaching this Court in civil appeal would in all

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probability have been avoided. Filing a copy of the policy, therefore, not only cuts short avoidable litigation but also helps the court in doing justice between the parties. The obligation on the part of the State or its instrumentalities to act fairly can never be overemphasised.

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13.4.Without marking the terms and condition of the policy and the relevant terms of the policy mentioned in the Indian Motor Tariff, this Court is unable to find any restriction clause to disown the liability. It is also settled principle in order to repudiate the liability, it is the duty of the insurance company to plea and prove the same by producing the relevant evidence.

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13.5.In this case, sweeping argument of the learned counsel for the insurance company is that the insurance company is not liable to pay the compensation to the occupants of the car without making any extra premium cannot be accepted without any evidence.

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Under Section 64 U C of the Insurance Act, the insurance company shall follow the Tariff and Advisory committee, the rules,

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regulation, rates, advantage, terms and conditions for the transaction of the Motor Insurance Business in India and from 2007 onwards IRDA Insurance Regulatory and Development Authority the direction to the insurance company is in force for the above said purpose. Till 31-12-2006 the Tariff Advisory Committee and, thereafter, from 1-1-2007 IRDA functioned as the statutory regulatory authorities and they are entitled to fix the tariff as well

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as the terms and conditions of the policies issued by all insurance companies. Therefore, the insurance company is bound by the circular issued by the IRDA.

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14.1.The Hon'ble Supreme Court in the case of Pushpabai

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Purshottam Udeshi vs. Ranjit Ginning and Pressing Co. , reported in 1977 ACJ 343 , has held as follows:

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20..............it is not required that a policy of insurance should cover risk to the passengers who are not carried for hire or reward. As under Section 95 the risk to a passenger in a vehicle who is not carried for hire or reward is not required to be insured the plea of the counsel for the insurance company will have to be accepted and the insurance company held not liable under the

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requirements of the Motor Vehicles Act.

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21. The insurer can always take policies covering risks which are not covered by the requirements of Section 95. In this case the insurer had insured with the insurance company the risk to the passengers.

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14.2.Consequent to the decision of the Apex Court in the case of

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Pushpabai Pur shottam Udeshi v. Ranjit Ginning and Pressing Co., reported in 1977 ACJ 343 , Tariff Advisory Committee as per Section 64 U C of the Insurance Act has issued a circular with regard to the liability of

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the Insurance Company in relation to private vehicle :

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“TARIFF ADVISORY COMMITTEE BOMBAY REGIONAL COMMITTEE “Circular M.V. No. 1 of 1978 Bombay 17th March 1978

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Insurance Company's Liability in Respect of Gratuitous Passengers conveyed in a Private CarStandard Form for Private Car Comprehensive Policy ? Section II ? Liability to Third-Parties.

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I am directed to inform Insurers that advices have been received from the Tariff Advisory Committee to the effect that since the industry had all these

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years holding the view on liability the same practice should continue.

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In order to make this intention clear, Insurers are requested to amend clause 1(a) of Section II of the Standard Private Car Policy by incorporating the following words after the words ‘death of or bodily injury to any person’ appearing therein:

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‘Including occupants carried in the motor car provided that such occupants are not carried for hire or reward’

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I am accordingly to request Insurers to make the necessary amendment on sheet 38 of the Indian Motor Tariff pending reprinting of the relevant sheet.

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All existing Policies may be deemed to incorporate the above amendment as the above decision is being brought into force with effect from 25th March, 1977.”

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The said circular has been followed by the insurance company till date.

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15.The IRDA also reiterated the said circular, by issuing another following official circular dated 16.11.2009:

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On 16th November, 2009, IRDA issued a

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Circular to CEOs of all the Insurance Companies restating the factual position relating to the liability of Insurance companies in respect of a pillion rider on a two-wheeler and occupants in a Private Car under the Comprehensive/Package Policy. The relevant portion of the said Circular is reproduced hereunder:

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IRDA

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Ref: IRDA/NL/CIR/F&U/073/11/2009 November 16, 2009

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CEOs of all General Insurance Companies Re: Liability of Insurance Companies in respect of Occupants of a Private Car and Pillion rider on a Two-Wheeler under Standard Motor Package Policy [also called Comprehensive Policy].

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Insurers' attention is drawn to wordings of Section II (1)(ii) of Standard Motor Package Policy (also called Comprehensive Policy) for Private Car and Two-Wheeler under the (erstwhile) India Motor Tariff. For convenience the relevant provisions are reproduced hereunder:

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Section II - Liability to Third Parties:

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1. Subject to the limits of liabilities as laid down in the Schedule hereto the Company will indemnify the insured in the event of an accident caused by or arising out of the use of the insured vehicle against all sums which the insured shall become legally liable to pay in respect of—

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(i) death or bodily injury to any person including occupants carried in the vehicle (provided such occupants are not carried for hire or reward) but except so far as it is necessary to meet the requirements of Motor Vehicles Act, the Company shall not be liable where such death or injury arises out of and in the course of employment of such person by the insured.

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It is further brought to the attention of insurers that the above provisions are in line with the following Circulars earlier issued by the TAC on the subject:

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(i) Circular M.V. No. 1 of 1978 - dated 18th March, 1978 [regarding occupants carried in Private Car] effective from 25th March, 1977.

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(ii) MOT/GEN/10 dated 2nd June, 1986 [regarding Pillion Riders in a Two-Wheeler] effective from the date of the Circular.

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The above Circulars make it clear that the insured's liability in respect of Occupant(s) carried in a Private Car and Pillion Rider carried on Twowheeler is covered under the Standard Motor Package Policy. A copy each of the above circulars is enclosed for ready reference.

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The Authority vide circular No. 066/IRDA/F&U/Mar-08 dated March 26, 2008 issued under File & Use Guidelines has reiterated that pending further orders the insurers shall not vary the coverage, terms and conditions wording, warranties, clauses and endorsements in respect of covers that were under the erstwhile tariffs. Further the Authority, vide Circular No. 019/IRDA/NL/F&U/Oct-08 dated November 6, 2008 has mandated that insurers are not permitted to abridge the scope of standard covers available under the erstwhile tariffs beyond the options permitted in the erstwhile tariffs.

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All General Insurers are advised to adhere to the afore-mentioned Circulars and any noncompliance of the same would be viewed seriously by the Authority.

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This is issued with the approve of Competent Authority.

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Sd/- (Prabodh Chander)

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Executive Director

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16.It is pertinent to note that the learned counsel appearing for the insurance company has submitted argument with unintended ambiguity over the above settled issues of covering the liability to the occupants of the car and the pillion rider of the two wheeler under the misnomer of the Act policy and the Comprehensive policy without taking note of the circular of “ standard motor policy ” which emphasized M.V. No. 1 of 1978 - dated 18th March, 1978 [regarding occupants carried in Private Car] effective from 25th March, 1977, MOT/GEN/10 dated 2nd June, 1986 [regarding Pillion Riders in a Two-Wheeler] effective from the date of the Circular and IRDA/NL/CIR/F&U/073/11/2009 November 16, 2009. The IRDA once again reiterated the same by issuing the another following circular during the course of the hearing of the larger issue before the Delhi High Court in the case of Yashpal Luthra v. United India , reported in (2012) 2 TN MAC 625:

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IRDA/NL/CIR/F&U/078/12/2009 3rd Dec. 2009.

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All CEOs of All General Insurance Companies (except ECGC, AIC, Staff Health, Apollo)

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Re:Liability of Insurance Companies in respect of Occupant of a Private Car and Pillion Rider in a Two-Wheeler under Standard Motor Package Policy (also called Comprehensive Policy).

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Pursuant to the Order of the Delhi High Court dated 23.11.2009 in MAC APP No. 176/209 in the case of Yashpal Luthra v. United India, the Authority convened a meeting on November 26, 2009 of the CEOs of all the general insurance companies doing motor insurance business in the presence of the Counsel appearing on behalf of the Authority and the leaned amicus curie.

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Based on the unanimous decision taken in the meeting by the representatives of the general insurance companies to comply with the IRDA circular dated 16th November, 2009 restating the position relating to the liability of all the general insurance companies doing motor insurance business in respect of the occupants in a Private Car and pillion rider on a Two-Wheeler under the Comprehensive/Package Policies which was

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communicated to the Court on the same day i.e. November 26, 2009 and the Court was pleased to pass the order (dt. 26.11.2009) received from the Court Master, Delhi High Court, is enclosed for your ready reference and adherence. In terms of the said order and the admitted liability of all the general insurance companies doing motor insurance business in respect of the occupants in a Private Car and pillion rider on a Two-Wheeler under the Comprehensive/Package Policies, you are advised to confirm to the Authority, strict compliance of the Circular dated 16th November, 2009 and orders dt. 26.11.2009 of the High Court. Such compliance on your part would also involve:

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(i) withdrawing the plea against such a contest wherever taken in the cases pending before the MACT, and issue appropriate instructions to their respective lawyers and the operating officers within 7 days.

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(ii) with respect to all Appeals pending before the High Courts on this point, issuing instructions within 7 days to the respective operating officers and the Counsels to withdraw

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the contest on this ground which would require identification of the number of Appeals pending before the High Courts (whether filed by the Claimants or the insurers) on this issue within a period of 2 weeks and the contest on this ground being withdrawn within a period of four weeks thereafter.

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(iii) with respect to the Appeals pending before the Hon'ble Supreme Court, informing, within a period of 7 days, their respective Advocates on record about the IRDA Circulars, for appropriate advice and action.

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Your attention is also drawn to the discussions in the CEOs meeting on 26.11.2009, when it was reiterated that insurers must take immediate steps to collect statistics about accident claims on the above subject through a central point of reference decided by them as the same has to be communicated in due course to the Honourable High Court. You are, therefore, advised to take up the exercise of collecting and collating the information within a period of two months to ensure necessary & effective compliance of the order of the Court. The information may be

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centralized with the Secretariat of the General Insurance Council and also furnished to us.

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The IRDA requires a written confirmation from you on the action taken by you in this regard.

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This has the approval of the Competent Authority.

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Sd/- (Prabodh Chander)

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Executive Director

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17.From the above, it is clear that “ as of now, the standard motor vehicle policy” covers the occupant of the car and there is no necessity to make separate premium. The same has been considered in detail by the Hon'ble Supreme Court in the case of National Insurance Company Ltd.,

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Vs. Balakrishnan reported in 2013 (1)SCC 731 .

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18.Apart from that as discussed above, in this case, R.W.4/officer examined on the side of the insurance company clearly deposed that in the event of acceptance of the negligence against the driver of the Qualis car, the insurance company is duty bound to pay the compensation and R.W.5 deposed that there is no restriction to pay the compensation to the owner of the vehicle when he was the occupant of the car. Therefore, the insurance

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company is liable to pay compensation and which was correctly fixed by the learned trial judge considering the above aspect. Hence, this Court finds no grounds to interfere with the same.

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19. Discussion on quantum:

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The deceased was the leader of the political party. He was doing many business. To prove the same, his auditor was examined as P.W.4. Various exhibits to prove the income of the deceased are marked. Ex.P25 to Ex.P27 are the income tax return and the payment of advance tax receipts. The auditor deposed that the deceased's annual income was more than a sum of Rs.11,00,000/-. Therefore, the contention of the claimants that the income of the deceased has to be suitably increased deserves to be accepted. This Court considering the above documents and evidence, inclines to fix the annual income of the deceased as Rs.2,50,000/- by enhancing the amount fixed by the learned tribunal Judge from Rs.1,55,016/-.

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20.The deceased was aged about 49 years and hence, the future prospect of 25% has to be taken. By applying 25% of the annual income of Rs.2,50,000/-, the same comes around Rs.62,500/-.

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2,50,000 X 25/100 = 62,500/-

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Deduction of 10% income tax comes around Rs.2,81,250/-.

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2,81,250 X 4/5 X 13 = 29,25,000/-

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*S.No*	*Description*	*Amount* *awarded by* *Tribunal* *(Rs)*	*Amount awarded* *by this Court* *(Rs)*	*Award confirmed* *or enhanced or* *granted*
1.	Loss of income	17,68,351/-	29,25,000/-	enhanced
2.	Loss of estate	10,000/-	10,000/-	confirmed
3.	For Loss of consortium to the 1^stclaimant	1,00,000/-	40,000/-	reduced
4.	For Loss of Love and affection to the claimants 2 to 4	(6 X 10,000/-) 60,000/-	(5 X 40,000/-) 2,00,000/-	enhanced
5.	Funeral expenses	25,000/-	25,000/-	Confirmed
6.	Medical Expenditure	3,56,340/-	3,56,340/-	Confirmed
7	Transportation	1,25,000/-	1,25,000/-	Confirmed
8	For the Future Prospects of the children	1,00,000/-	------	Deleted
	*Total*	*Rs.25,44,691/-*	_Rs.36,81,340/- _	*By enhancing a* *sum of* *Rs.11,36,649/-*

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21.Accordingly, the appeal filed by the claimant in C.M.A.(MD).No.

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1039 of 2016 is allowed in part in the following terms:

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(i)the award amount passed in M.C.O.P.No.197 of 2003 is enhanced from 25,44,691/- to 36,81,340/-.

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(ii)the claimants are entited to the compesnation amount on the

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following apportionment:

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*Sl.*	*Name*	*Amount in Rs.*
*Nos.*
1	Navaneetham Ammal	3,00,000/-
2	Lakshmi Kumar	20,00,000/-
3	Aisvarya Santhiyanayagi	3,45,335/-
4	Mangalanayagi	3,45,335/-
5	Vathsala Nayagi	3,45,335/-
6	Gokulnathan	3,45,335/-