IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR 1

BEFORE

HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL

ON THE 27 th OF JANUARY, 2023

MISC. APPEAL No. 1177 of 2012

BETWEEN:-

UNITED INDIA INSURANCE COMPANY LIMITED THROUGH DIVISIONAL MANAGER, D.O. 1454- RAJKIRAN BHAWAN, WRIGHT TOWN JABALPUR C.B.O. IIND 9-C, INDRAPURI BHEL, BHOPAL (MADHYA PRADESH)

....APPELLANT

(BY SHRI GULAB SOHANE, ADVOCATE)

AND

• 1. JAGANNATH S/O SHRI VISHNU KAVADKAR OCCUPATION: CHAIMANT/DRIVER OF MOTOR CYCLE GANGAPUR TEHSIL MULTAI, BETUL, M.P. (MADHYA PRADESH)
• 2. ANKIT @ SONU S/O VIPIN RAO LOKHANDE, AGED ABOUT 19 YEARS, BAGHODA TEHSIL MULTAI (MADHYA PRADESH)

.....RESPONDENTS

This appeal coming on for orders this day, t h e court passed the following:

ORDER

T h is appeal has been preferred by appellant/Insurance Company challenging the award dated 17/11/2011 passed by Additional Motor Accident Claims Tribunal, Multai in Claim Case No.65/2011, whereby award of an amount of Rs.52,424/- has been passed to be paid by the appellant and respondent 2 jointly and severally.

2. The Insurance Company has challenged the award on the ground that

as per the existing policy, the insurance company is not liable to indemnify the liability.

3. In the case of Jagtar Singh @ Jagdev Singh Vs. Sanjeev Kumar and others (2018) 15 SCC 189, the similar controversy arose and the Supreme Court has held as under:

2. It is submitted by Mr Yadunandan Bansal, learned counsel appearing for the appellant that the controversy is covered by the two-Judge Bench decision in National Insurance Co. Ltd. v. Balakrishnan [National Insurance Co. Ltd. v. Balakrishnan, (2013) 1 SCC 731 : (2013) 1 SCC (Civ) 771 : (2013) 1 SCC (Cri) 677] , wherein the Court has held thus: (SCC pp. 743-44, paras 24-26)

"€œ24. It is extremely important to note here that till 31-12-2006 the Tarif Advisory Committee and, thereafter, from 1-1-2007, IRDA functioned as the statutory regulatory authorities and they are entitled to fix the tarif as well as the terms and conditions of the policies by all insurance companies. The High Court had issued notice to the Tarif Advisory Committee and IRDA to explain the factual position as regards the liability of the insurance companies in respect of an occupant in a private car under the "comprehensive/package policy"€Â. Before the High Court, the competent authority of IRDA had stated that on 2-6-1986, the Tarif Advisory Committee had issued instructions to all the insurance companies to cover the pillion rider of a scooter/motorcycle under the "comprehensive policy"€Â and the said position continues to be in vogue till date. It had also admitted that the "comprehensive policy"€Â is presently called a "€œpackage policy"€Â. It is the admitted position, as the decision would show, the earlier Circulars dated 18-3-1978 and 2- 6-1986 continue to be valid and ef ective and all insurance companies are bound to pay the compensation in respect of the liability towards an occupant in a car under the "€œcomprehensive/package policy"€Â irrespective of the terms and conditions contained in the policy. The competent authority of IRDA was also examined before the High Court who stated that the

Circulars dated 18-3-1978 and 2-6-1986 of the Tarif Advisory Committee were incorporated in the Indian Motor Tarif ef ective from 1-7-2002 and they continue to be operative and binding on the insurance companies. Because of the aforesaid factual position, the Circulars dated 16-11-2009 and 3-12-2009, that have been reproduced hereinabove, were issued.

25. It is also worthy to note that the High Court, after referring to individual circulars issued by various insurance companies, eventually stated [Yashpal Luthra v. United India Insurance Co. Ltd., 2011 ACJ 1415 (Del)] thus: (Yashpal case [Yashpal Luthra v. United India Insurance Co. Ltd., 2011 ACJ 1415 (Del)] , ACJ p. 1424, para 27)

'27. In view of the aforesaid, it is clear that the comprehensive/package policy of a two-wheeler covers a pillion rider and comprehensive/package policy of a private car covers the occupants and where the vehicle is covered under a comprehensive/package policy, there is no need for the Motor Accidents Claims Tribunal to go into the question whether the insurance company is liable to compensate for the death or injury of a pillion rider on a two-wheeler or the occupants in a private car. In fact, in view of the TAC's directives and those of IRDA, such a plea was not permissible and ought not to have been raised as, for instance, it was done in the present case."

26. In view of the aforesaid factual position, there is no scintilla of doubt that a "€œcomprehensive/package policy"€Â would cover the liability of the insurer for payment of compensation for the occupant in a car. There is no cavil that an "Act policy" stands on a dif erent footing from a "comprehensive/package policy"€Â. As the circulars have made the position very clear and IRDA, which is presently the statutory authority, has commanded the insurance companies stating that a "€œcomprehensive/package policy" covers the liability, there cannot be any dispute in that regard. We may hasten to clarify that the earlier pronouncements were rendered in respect of the "Act policy"€Â which admittedly cannot cover a third-party risk of an occupant in a car. But, if the policy is a "€œcomprehensive/package policy"€Â, the liability would be covered. These aspects were not noticed in Bhagyalakshmi

[Bhagyalakshmi v. United Insurance Co. Ltd., (2009) 7 SCC 148 : (2009) 3 SCC (Civ) 87 : (2009) 3 SCC (Cri) 321] and, therefore, the matter was referred to a larger Bench. We are disposed to think that there is no necessity to refer the present matter to a larger Bench as IRDA, which is presently the statutory authority, has clarified the position by issuing circulars which have been reproduced in the judgment [Yashpal Luthra v. United India Insurance Co. Ltd., 2011 ACJ 1415 (Del)] by the Delhi High Court and we have also reproduced the same."€Â

3. In view of the aforesaid, we think it appropriate to set aside the judgment and order passed by the High Court and remit the matter for consideration whether the policy in question is a "€œcomprehensive/package policy"€Â or exclusively an "€œAct policy"€Â. After such consideration it shall pass a reasoned order. Needless to say, if any other contention is available to the insured, he will be at liberty to raise the same before the High Court.

4. Said judgment of Supreme Court has further been relied upon by Bombay High Court in the case of Oriental Insurance Company Limited Vs.

Maroti & others 2020 ACJ 2890.

5. In the present case as has been found by learned Claims Tribunal vide Para 15 of its award, the policy in question is a package policy, which has also not been disputed by the learned counsel for the appellant/Insurance Company.

6 . In view of the aforesaid law declared by the Supreme Court and the High Court of Bombay and in view of the admitted position that in the present case the policy in question is a package policy, nothing remains to be decided by this Court. Resultantly, this appeal deserves to be and is hereby dismissed.

7. Interim application(s) if any, shall stand dismissed.