RELIANCE GENERAL INSURANCE COMPANY LIMITED vs KM. VAISHNAVI
- Court
- Uttarakhand High Court
UKHC010062082017
HIGH COURT OF UTTARAKHAND AT NAINITAL
Appeal From Order No. 340 of 2017
Reliance General Insurance Company Limited
--Appellant
Versus
Km. Vaishnavi and Another --Respondents
Presence:-
Mr. Pulak Agarwal, learned counsel with Mr. Bharat Tewari,
learned counsel for the appellant.
Mr. Pramod Bailwal, learned counsel for the claimants/
respondents.
With
Appeal From Order No. 339 of 2017
Reliance General Insurance Company Limited
--Appellant
Versus
Km. Vaishnavi and Others --Respondents
Presence:-
Mr. Pulak Agarwal, learned counsel with Mr. Bharat Tewari,
learned counsel for the appellant.
Mr. Pramod Bailwal, learned counsel for the claimants/
respondents.
With
Appeal From Order No. 341 of 2017
Reliance General Insurance Company Limited
--Appellant
Versus
Km. Vaishnavi and Another --Respondents
Presence:-
Mr. Pulak Agarwal, learned counsel with Mr. Bharat Tewari,
learned counsel for the appellant.
Mr. Pramod Bailwal, learned counsel for the claimants/
respondents.
Hon'ble Siddhartha Sah, J. (Oral)
By means of the Appeal From Order No.340 of
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2017 under Section 173 of the Motor Vehicles Act, 1988,
the appellant/insurer has assailed the impugned
judgment and award dated 22.04.2017, passed by the
learned Motor Accident Claims Tribunal, Uttarkashi in
MACP No. 13 of 2016, by which an amount of
Rs.6,54,040/- was awarded as compensation by the
learned Tribunal.
2. By means of the Appeal From Order No.339 of
2017 under Section 173 of the Motor Vehicles Act, 1988,
the appellant/insurer has assailed the impugned
judgment and award dated 22.04.2017, passed by the
learned Motor Accident Claims Tribunal, Uttarkashi in
MACP No.11 of 2016, by which an amount of
Rs.56,39,680/- was awarded as compensation by the
learned Tribunal.
3. By means of the Appeal From Order No.341 of
2017 under Section 173 of the Motor Vehicles Act, 1988,
the appellant/insurer has assailed the impugned
judgment and award dated 22.04.2017, passed by the
learned Motor Accident Claims Tribunal, Uttarkashi in
MACP No.12 of 2016, by which an amount of
Rs.4,70,000/- was awarded as compensation by the
learned Tribunal.
4. All these three Appeals from Order arise from
an accident which occurred on 24.09.2015 and three
claim petitions were filed on account of the death of
father, mother and brother of the minor claimant.
Therefore, they are being heard and decided together.
5. Since the facts are identical, therefore, facts of
A.O. No. 340/2017 are being stated hereunder :-
Claim Petition No.13 of 2016, Km. Vaishnavi
vs. Reliance General Insurance Company was filed
with the averments that the mother of the claimant-
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Smt. Poonam Pawar along with the entire family
including the claimant, her father and brother were
traveling in vehicle bearing no.UK 07 X 0436 Maruti
to Dehradun. The said vehicle was being driven by
the driver Ashish, and as soon as the said vehicle
reached a place Kaplani (Suwakholi), Thana
Mussoorie, District Dehradun, the vehicle met with
an accident due to the rash and negligent driving of
the driver, in which the passengers traveling in the
said vehicle, being the mother, father, brother and
the driver met with a sad demise at the place of the
accident and the claimant somehow was saved. The
FIR of the accident was registered at Police Station
Mussoorie, District Dehradun.
6. Therefore, three separate claim petitions came
to be filed in the court of Motor Accident Claims Tribunal,
Uttarkashi, in which compensation was sought
separately on account of the death of mother, father and
the brother of the claimant respectively.
7. The insurance company contested the claim
petition by filing its WS. The vehicle owner also contested
the claim petition by filing his WS. After the exchange of
pleadings, the issues were framed. Issue nos. 1, 3 and 5
were decided together and the learned Tribunal came to
the conclusion that PW-2 Shri Pramod Singh Rana, who
was traveling on his vehicle on that motor road and was
going to Dehradun, is the eyewitness of the incident. In
his affidavit of evidence, he has clearly stated that driver
of vehicle no. UK 07 X 0436 Maruti 800 was driving the
vehicle rashly and negligently and he overtook the vehicle
of the said witness. As soon as the said vehicle reached
30 meters ahead of the vehicle of the witness, it lost
control and fell into the gorge beside the road. After
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search operations, it was found that the passengers in
the vehicle died on the spot, however, the claimant, aged
one year, was saved.
8. The issue no.1 was decided by the learned
Tribunal to the effect that the accident occurred due to
the rash and negligent driving of the driver of vehicle no.
UK 07 X 0436 Maruti and therefore, the claim petition
under Section 166 of the Motor Vehicles Act is
maintainable. The learned Tribunal also came to the
conclusion that since the deceased was traveling in the
vehicle as a gratuitous passenger, therefore, the fact is
insignificant that the deceased was a valid passenger or
not.
9. The issue no.2 was decided to the effect that
on the date of the accident, the driver of the vehicle in
question was holding a valid and effective driving license
and all the documents of the vehicle were valid and
effective and the vehicle was insured with Reliance
General Insurance Company Ltd.
10. The issue no.4 regarding the quantum of
compensation and from whom, was decided against the
insurance company, and the claim petition was allowed
by granting a compensation of an amount of Rs.
6,54,040/-.
11. Assailing the aforesaid impugned judgments
and awards, the learned counsel for the insurance
company, Mr. Pulak Agarwal would submit that the claim
petition has been filed under Section 166 of the Motor
Vehicles Act and since there is no FIR of the incident,
hence the claim petition would not be tenable. He would
submit that regarding the accident, there is a GD entry of
Thana Mussoorie that the accident was a coincidence.
The vehicle fell into a gorge since it got out of control. He
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would further submit that the claimants have produced
only one eyewitness, Mr. Pramod Singh Rana and in the
absence of any FIR, his testimony cannot be relied upon.
12. On facts, learned counsel for the appellant/
insurance company would submit that the occupants in
the vehicle were not the owner of the car, but someone
else. The vehicle was being used for hire or reward,
therefore, there is breach of policy conditions, and the
insurance company cannot be held liable for paying any
compensation. He would further submit that on account
of the aforesaid grounds, the appeals deserve to be
allowed and the impugned judgments and awards are
liable to be set aside.
13. Referring to Appeal from Order No.339 of 2017,
learned counsel for the appellant would submit that the
deceased-Mr. Suresh Pawar, was an Assistant Teacher,
and his income was claimed to be Rs.35,799/- per
month, but no witness has been produced to prove his
salary slip. Therefore, he would submit that the income
of the deceased, late Suresh Pawar is not duly proved,
hence the learned Tribunal erred by assessing the income
of the deceased, Mr. Suresh Pawar at Rs. 35,799/- per
month.
14. Learned counsel for the appellant has relied
upon the judgment of the Hon'ble Supreme Court in the
case of
Surender Kumar Arora and Another vs.
Manoj Bisla and Others, reported in (2012) 4 SCC
552 and has referred to paragraph nos. 9 and 10 thereof.
Paragraph nos. 9 and 10 are being extracted hereunder
for ready reference:
“9. Admittedly, the petition filed by the claimants
was under Section 166 of the Act and not under
Section 163-A of the Act. This is not in dispute.
Therefore, it was the entire responsibility of the
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parents of the deceased to have established that
Respondent 1 drew the vehicle in a rash and
negligent manner which resulted in the fatal
accident. Maybe, in order to help Respondent 1, the
claimants had not taken up that plea before the
Tribunal. Therefore, the High Court was justified in
sustaining the judgment and order passed by the
Tribunal. We make it clear that if for any reason, the
claimants had filed the petition under Section 163-A
of the Act, then the dicta of this Court in Kaushnuma
Begum [(2001) 2 SCC 9 : 2001 SCC (Cri) 268] would
have come to the assistance of the claimants.
10. In our view the issue that we have raised for our
consideration is squarely covered by the decision of
this Court in Oriental Insurance Co. Ltd. [(2007) 5
SCC 428 : (2007) 2 SCC (Cri) 527] In the said
decision the Court stated: (SCC pp. 445-46, para 27)
“27. … Therefore, the victim of an accident or
his dependants have an option either to proceed
under Section 166 of the Act or under Section 163-
A of the Act. Once they approach the Tribunal
under Section 166 of the Act, they have
necessarily to take upon themselves the burden of
establishing the negligence of the driver or owner
of the vehicle concerned. But if they proceed under
Section 163-A of the Act, the compensation will be
awarded in terms of the Schedule without calling
upon the victim or his dependants to establish any
negligence or default on the part of the owner of
the vehicle or the driver of the vehicle.”
15. While placing reliance on the judgment of
, learned counsel for the
Surender Kumar Arora (supra)
appellant would submit that it is the burden of the
claimants to prove that the vehicle was being driven
rashly and negligently. He would further submit that the
occupants would not be covered specifically and would
therefore not be entitled to compensation.
16. Per contra, learned counsel for the claimant/
respondent Mr. Pramod Belwal, would submit that so far
as the contention regarding the tenability of the claim
petition is concerned, issue no.3 was specifically framed
regarding the maintainability of the claim petition and
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while issue nos. 1, 3, and 5 were decided together, the
learned Tribunal has dealt with the said issue. Learned
counsel for the claimant-respondent would submit that
the witness, Pramod Singh Rana, who was the eyewitness
and was going to Dehradun from Uttarkashi at around
7:30 PM on 24.09.2015 had actually seen the occurrence
of the said accident, and he has categorically deposed
before the Tribunal that the driver of vehicle No. UK-07-
X-0436 Maruti car was driving rashly and negligently and
he overtook the car of the witness and thereafter the
vehicle fell into a deep gorge since it got uncontrollable.
17. He would further refer to the cross-
examination of the said witness, in which he denied the
suggestion that the accident did not occur due to the
rash and negligent driving and it was by coincidence. He
would further submit that Issue No. 1 was decided
against the insurance company. He would further submit
that while deciding motor accident claims cases, the
Tribunal cannot decide it on the principle of beyond
reasonable proof, but on the basis of preponderance of
probabilities.
18. The learned counsel for the claimant/
respondent has relied upon a judgment of the Hon'ble
Supreme Court in the case of Raj Kumar Das vs.
National Insurance Company Ltd. reported in 2026
and has
(5) Supreme 141(2026 SCC OnLine SC 930)
referred to paragraph No. 8 thereof. Paragraph 8 thereof
is being extracted hereunder for ready reference:-
“8. At the outset, we would like to reiterate that
the nature of proceedings under the Act are
summary in nature, with an aim to provide
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expeditious justice. It is a settled position of law
that a claim petition is to be decided on the
touchstone of preponderance of probability and
not proof beyond reasonable doubt. Further in a
claim under Section 163A, the enquiry is
narrower still, for negligence is not required to
be proved, and it is sufficient that the injury is
reasonably connected with the motor vehicle in
question.”
19. On the ground as agitated by learned counsel
for the appellant that the deceased was a fare-paying
passenger, the learned counsel for the claimant/
respondent would contend that the deceased was a non-
fare paying passenger/occupant of a private car. The
insurance policy was a package policy which covers
occupants of a car/vehicle.
20. The learned counsel for the
claimant/respondent has relied upon a judgment of the
Hon'ble Supreme Court in the case of Oriental
Insurance Company vs. Surendra Nath Loomba and
and has drawn
Others, reported in (2012) 13 SCC 792
the attention of the Court to paragraph Nos. 13 and 14
thereof. Paragraph Nos. 13 and 14 thereof are being
extracted hereunder for ready reference:
“ It is apt to note here that this Court
13.
in Bhagyalakshmi v. United Insurance Co.
Ltd. [(2009) 7 SCC 148 : (2009) 3 SCC (Civ) 87 :
(2009) 3 SCC (Cri) 321] , after dealing with various
facets and considering the authorities in Amrit Lal
Sood v. Kaushalya Devi Thapar [(1998) 3 SCC 744 :
1999 SCC (Cri) 158] , Asha Rani [(2003) 2 SCC 223 :
2003 SCC (Cri) 493] , Tilak Singh [(2006) 4 SCC 404 :
(2006) 2 SCC (Cri) 344] , Jhuma Saha [(2007) 9 SCC
263 : (2007) 3 SCC (Cri) 443] and Sudhakaran
K.V. [(2008) 7 SCC 428 : (2008) 3 SCC (Cri) 110] , has
observed thus: (Bhagyalakshmi case [(2009) 7 SCC
148 : (2009) 3 SCC (Civ) 87 : (2009) 3 SCC (Cri) 321] ,
SCC p. 158, para 25)
“25. Before this Court, however, the nature of policies
which came up for consideration were Act policies.
This Court did not deal with a package policy. If the
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Tariff Advisory Committee seeks to enforce its
decision in regard to coverage of third-party risk
which would include all persons including occupants
of the vehicle and the insurer having entered into a
contract of insurance in relation thereto, we are of the
opinion that the matter may require a deeper
scrutiny.”
Recently this Bench in National Insurance Co.
14.
Ltd. v. Balakrishnan [(2013) 1 SCC 731 : (2013) 1
SCC (Cri) 677 : (2013) 1 SCC (Civ) 771] , after
referring to various decisions and copiously to the
decision in Bhagyalakshmi [(2009) 7 SCC 148 :
(2009) 3 SCC (Civ) 87 : (2009) 3 SCC (Cri) 321] , held
that there is a distinction between “Act policy” and
“comprehensive/package policy”. Thereafter, the
Bench took note of a decision rendered by the Delhi
High Court in Yashpal Luthra v. United India
Insurance Co. Ltd. [2011 ACJ 1415 (Del)] wherein the
High Court had referred to the circulars issued by the
Tariff Advisory Committee (TAC) and the Insurance
Regulatory and Development Authority (IRDA). This
Court referred to the portion of Circulars dated 16-11-
2009 and 3-12-2009 which had been reproduced by
the High Court and eventually held as follows:
(Balakrishnan case [(2013) 1 SCC 731 : (2013) 1 SCC
(Cri) 677 : (2013) 1 SCC (Civ) 771] , SCC pp. 743-44,
paras 24-27)
“24. It is extremely important to note here that 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 as the terms and conditions of
the policies issued by all insurance companies. The
High Court had issued notice to the Tariff 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’. Before the High
Court, the competent authority of IRDA had stated
that on 2-6-1986, the Tariff Advisory Committee had
issued instructions to all the insurance companies to
cover the pillion rider of a scooter/motorcycle under
the ‘comprehensive policy’ and the said position
continues to be in vogue till date. It had also admitted
that the ‘comprehensive policy’ is presently called a
‘package policy’. 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
effective and all insurance companies are bound to
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pay the compensation in respect of the liability
towards an occupant in a car under the
‘comprehensive/package policy’ 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 Tariff Advisory
Committee were incorporated in the Indian Motor
Tariff effective 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 [2011 ACJ
1415 (Del)] thus: (Yashpal Luthra case [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 ‘comprehensive/package
policy’ 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
different footing from a ‘comprehensive/package
policy’. 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 ‘comprehensive/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’ which admittedly cannot cover a third-party
risk of an occupant in a car. But, if the policy is a
‘comprehensive/package policy’, the liability would
be covered. These aspects were not noticed
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in Bhagyalakshmi [(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 by the Delhi High Court
and we have also reproduced the same.
27. In view of the aforesaid legal position, the
question that emerges for consideration is: whether in
the case at hand, the policy is an ‘Act policy’ or
‘comprehensive/package policy’? There has been no
discussion either by the Tribunal or the High Court in
this regard. True it is, before us, Annexure P-1 has
been filed which is a policy issued by the insurer. It
only mentions the policy to be a ‘comprehensive
policy’ but we are inclined to think that there has to
be a scanning of the terms of the entire policy to
arrive at the conclusion whether it is really a
‘package policy’ to cover the liability of an occupant
in a car.”
21. Placing reliance upon the judgment in the case
of Surendra Nath Loomba (supra), learned counsel for
the claimant/respondent would submit that in the said
judgment, the Hon'ble Supreme Court has clarified the
legal position as regards the liability of the insurance
companies in respect of an occupant in a private car
under a comprehensive/package policy. Thus, learned
counsel for the claimant/respondent would submit that
since the deceased was an occupant in a vehicle whose
insurance policy was a package policy, therefore, all the
occupants of the car would be entitled to be granted
compensation by the insurance company. Therefore, he
would submit that the claim petition under Section 166
of the Motor Vehicles Act was legally maintainable.
22. Learned counsel for the claimant/respondent
while placing reliance upon a judgment of a Coordinate
Bench of this Court in the case of ICICI Lombard General
Insurance Company vs. Nahid & Others, Appeal From
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Order No. 174 of 2023 (judgment dated 09.04.2026),
would submit that in view of the provisions of Order 41
Rule 33 of the CPC, enhancement for future prospects
needs to be granted, since that aspect has been
overlooked by the learned Tribunal.
23 . Learned counsel for the claimant/respondent
has relied upon a judgment of the Hon'ble Supreme
Court in the case of
Shishu Pal & Others vs. Surjeet &
Others, reported in 2026 SCC OnLine SC 1114 and
has drawn the attention of the Court to paragraph 20
thereof. Para 20 is being extracted hereunder for ready
reference:
“ 20. It is in these circumstances, that we deem
it appropriate to direct that when a Motor
Accidents Claim Tribunal or the High Court or
this Court is concerned with or a case involving
the death of a homemaker, in order to overcome
the inherent disadvantage accrued against
the homemaker on a calculation of
compensation on the basis of conservatively
computed notional income and while being
acutely aware of the dictum in Pranay
Sethi (supra) regarding loss of consortium as
also the disposition towards uniformity, that for
the three major heads (the homemaker's
contribution towards smooth functioning of the
household, the loss of maternal support for
children and loss of spousal support/the
support and care of their child who is an adult,
for the parents of the deceased) discussed in
the foregoing paragraphs, a composite sum of
Rs. 30,000/- shall be added under the head of
‘loss of domestic care’, provided that all three of
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these heads are met in the given case. This
determination shall be revised by 10%,
cumulatively, every three years. It may be
clearly stated that this amount of Rs. 30,000/-
i.e., loss of domestic care is to be taken as a
‘stand-in’ (basic minimum monthly income) for
monthly income in those cases where
the homemaker does not have an input into the
house, in strictly conventional, monetary terms.
In those cases where the homemaker is part of
the workforce, the component of loss of domestic
care shall be in addition to the monthly income
as may be proved before the Tribunal/Courts.”
24 . Placing reliance upon the aforesaid judgment
in the case of , learned counsel for
Shishu Pal (supra)
the claimant/respondent would submit that in view of
the said judgment, the compensation needs to be
enhanced on the basis of computing the monthly income
of the deceased-Smt. Poonam Panwar to be Rs. 30,000/-
per month on the ground of being a homemaker and as
such, the compensation deserves enhancement.
.
25 Learned counsel for the claimant/respondent
has also contended that the claimants/respondents in all
the three connected appeals are also entitled to future
prospects, heads of loss of consortium, loss of estate and
funeral expenses, as have been laid down by the Hon'ble
Supreme Court in the case of
National Insurance
Company Ltd. vs. Pranay Sethi and Others, reported
in (2017) 16 SCC 680 . He would submit that at least the
awarded compensation deserves to be enhanced in view
of the judgment in the case of Pranay Sethi (supra) .
26. Learned counsel for the claimant/respondent
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would also respond to the contention raised by the
learned counsel for the appellant that the salary slip is
not duly proved. Learned counsel for the claimant/
respondent, Mr. Pramod Belwal would submit that the
salary slip is duly corroborated by PW-1 Mr. Mahendra
Singh Pawar, and the finding to that effect is duly
returned in the disposal of Issue No. 4. He would submit
that PW-1, who is the elder brother of the deceased and
who appeared as PW-1 before the Tribunal, had duly
deposed that the deceased was working on the post of
Assistant Teacher in Primary School, Sagara and he was
drawing a monthly salary of Rs.35,799/-.
27. Learned counsel for the claimant/respondent
would further submit that there is not a single rebuttal
against the said evidence as adduced on behalf of the
claimants. In fact, no objection has been raised against
the said salary slip, and at the appellate stage, it is not
open to the insurance company to raise the said
contention regarding the salary slip.
28. Regarding Appeal from Order No. 341 of 2017,
learned counsel for the claimant/respondent would
submit that the learned Tribunal erred by awarding a
lump sum amount of Rs.4,70,000/- as compensation on
account of the death of a 6 year old boy child-Shaurya
Pawar, who was the brother of the claimant/respondent.
Learned counsel for the claimant/respondent would
submit that the income on account of the death of the
brother-Shaurya Pawar, ought to be determined on the
basis of notional income. He has relied upon the
judgment of the Hon'ble Supreme Court in the case of
Hansraj v. Mukesh Nath & Others, reported in 2026
and has drawn the attention of
(4) Supreme (SC) 494,
the Court to paragraph 8 of the said judgment, which is
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being extracted hereunder for ready reference:
“ 8. Under the head of attendant charges, the
High Court has awarded sum of Rs. 1,21,800/-.
This figure again is on a lower side. As held by
this Court in Kajal (supra), the minimum wages
admissible in this regard will have to be taken.
The figure of Rs. 5,000/- as monthly wages of a
semi-skilled workman is accordingly taken into
account being the charges of an attendant for a
month. The appellant having suffered
permanent disability, he would require the
assistance of two attendants round the clock.
Applying the multiplier of 18, this figure would
come to Rs. 21,60,000/-. ”
29. On the basis of the aforesaid judgment of the
Hon'ble Supreme Court in the case of Hansraj (supra) ,
learned counsel for the claimant/respondent would
submit that the compensation on account of the death of
late Shaurya Pawar also needs enhancement.
30. In rejoinder, learned counsel for the appellant,
Mr. Pulak Agarwal, would submit that the enhancement
as sought under various heads as well as the
enhancement with reference to certain judgments cited
by the learned counsel for the claimant/respondent,
cannot be granted. He would contend that since no
appeal has been filed by the claimant/respondent for the
enhancement of the compensation as awarded by the
learned Tribunal, no question arises for the enhancement
of the compensation already determined.
31. He would further submit that since the
claimant/respondent was satisfied with the quantum of
the compensation as was awarded by the learned
Tribunal, no appeal for enhancement was filed.
32. While placing reliance upon a judgment of the
Hon'ble Supreme Court in the case of Ranjana Prakash
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and Others vs. Divisional Manager and Another,
, learned counsel for the
reported in (2011) 14 SCC 639
appellant, Mr. Pulak Agarwal, would submit that
provisions of Order 41 Rule 33 of the CPC cannot be
pressed into service for a higher relief. He would refer to
paragraph numbers 6, 7 and 8 of the said judgment,
which are being reproduced hereunder for ready
reference:
“6. We are of the view that the High Court
committed an error in ignoring the contention of
the claimants. It is true that the claimants had
not challenged the award of the Tribunal on the
ground that the Tribunal had failed to take note
of the future prospects and add 30% to the
annual income of the deceased. But the
claimants were not aggrieved by Rs 23,134
being taken as the monthly income. There was
therefore no need for them to challenge the
award of the Tribunal. But where in an appeal
filed by the owner/insurer, if the High Court
proposes to reduce the compensation awarded
by the Tribunal, the claimants can certainly
defend the quantum of compensation awarded
by the Tribunal, by pointing out other errors or
omissions in the award, which if taken note of,
would show that there was no need to reduce
the amount awarded as compensation.
Therefore, in an appeal by the owner/insurer,
the appellant can certainly put forth a
contention that if 30% is to be deducted from the
income for whatsoever reason, 30% should also
be added towards future prospects, so that the
compensation awarded is not reduced. The fact
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that the claimants did not independently
challenge the award will not therefore come in
the way of their defending the compensation
awarded, on other grounds. It would only mean
that in an appeal by the owner/insurer, the
claimants will not be entitled to seek
enhancement of the compensation by urging
any new ground, in the absence of any cross-
appeal or cross-objections.
7. This principle also flows from Order 41 Rule
33 of the Code of Civil Procedure which enables
an appellate court to pass any order which
ought to have been passed by the trial court
and to make such further or other order as the
case may require, even if the respondent had
not filed any appeal or cross-objections. This
power is entrusted to the appellate court to
enable it to do complete justice between the
parties. Order 41 Rule 33 of the Code can
however be pressed into service to make the
award more effective or maintain the award on
other grounds or to make the other parties to
litigation to share the benefits or the liability,
but cannot be invoked to get a larger or higher
relief. For example, where the claimants seek
compensation against the owner and the
insurer of the vehicle and the Tribunal makes
the award only against the owner, on an appeal
by the owner challenging the quantum, the
appellate court can make the insurer jointly and
severally liable to pay the compensation, along
with the owner, even though the claimants had
not challenged the non-grant of relief against
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the insurer. Be that as it may.
Where an appeal is filed challenging the
8.
quantum of compensation, irrespective of who
files the appeal, the appropriate course for the
High Court is to examine the facts and by
applying the relevant principles, determine the
just compensation. If the compensation
determined by it is higher than the
compensation awarded by the Tribunal, the
High Court will allow the appeal, if it is by the
claimants and dismiss the appeal, if it is by the
owner/insurer. Similarly, if the compensation
determined by the High Court is lesser than the
compensation awarded by the Tribunal, the
High Court will dismiss any appeal by the
claimants for enhancement, but allow any
appeal by the owner/insurer for reduction. The
High Court cannot obviously increase the
compensation in an appeal by the
owner/insurer for reducing the compensation,
nor can it reduce the compensation in an appeal
by the claimants seeking enhancement of
compensation.”
33. Bare perusal of the judgment in the case of
Ranjana Prakash and Others (supra) would show that
in an appeal by the owner/insurer, the claimants will not
be entitled to seek enhancement of the compensation by
urging any new ground, in the absence of any cross-
appeal or cross-objection.
34. He would further submit that Order 41 Rule 33
of the Code can, however, be pressed into service to make
the award more effective or maintain the award on other
grounds or to make the other parties to the litigation
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share the benefits or the liability, but cannot be invoked
to get a larger or higher relief.
35. He has also stressed that the High Court
cannot obviously increase the compensation in an appeal
by the owner/insurer for reducing the compensation, nor
can it reduce the compensation in an appeal by the
claimants seeking enhancement of the compensation.
36. He would thus submit that there is no
question of enhancing the compensation already awarded
by the learned Tribunal, nor is there any question of
granting compensation on additional heads which were
not granted by the learned Tribunal.
37. "In view of the aforesaid rival submissions on
behalf of the learned counsel for the appellant and the
claimant/respondent, the main points for determination
which arise for in this appeal are as follows:
(i) Whether the claim petition by the
claimant/respondent was tenable under
Section 166 of the Motor Vehicles Act?
(ii) Whether the occupants/deceased were
travelling in the vehicle as non-fare passengers
as contended by the learned counsel for the
claimant/respondent or were they occupants
for hire or reward as being contended by the
learned counsel for the appellant insurance
company?
(iii) Whether the compensation as awarded by
the learned Tribunal deserves any
enhancement as being contended on behalf of
the learned counsel for the claimant/
respondent?
38. On point for determination No.1 the contention
is raised by the learned counsel for the appellant, Mr.
Pulak Agarwal, Advocate that the claim petition would
not be tenable in the absence of FIR and only on the
basis of GD entry.
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39. It is clear from the record, as being contended
on behalf of the learned counsel for the claimant/
respondent, that issue no. 3 was specifically framed by
the learned Tribunal pertaining to the tenability of the
claim.
40. Perusal of the impugned judgment would
reveal that issue nos. 1, 3 and 5 were decided together
and the learned Tribunal while deciding all the three
issues, came to the conclusion that on the basis of
evidence available on record, it is clearly proved that the
vehicle in question was being driven by the driver rashly
and negligently, due to which the accident occurred and
the occupants of the vehicle sustained grievous injuries
and they died on the spot. Since the vehicle was being
driven rashly and negligently, therefore, the claim
petition is tenable under Section 166 of the Motor
Vehicles Act.
41. Thus, this issue has already been dealt with
and duly decided by the learned Tribunal. It is a well-
considered disposal on issue nos. 1, 3, and 5 and this
Court does not find any error in deciding the said issue
regarding the tenability.
42. So far as the point for determination no.2,
which is based on the contentions as raised by the
learned counsel for the appellant that the occupants in
the vehicle were occupants for hire and reward, and since
there is a breach of policy conditions, therefore, the
insurance company cannot be held liable for paying the
compensation.
43. On the other hand, learned counsel for the
claimant/respondent has relied upon the judgment of the
Hon'ble Supreme Court in the case of
Oriental
Insurance Company Limited v. Surendra Nath
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Loomba and Others , wherein it has been categorically
held by the Hon'ble Supreme Court that if the insurance
policy is a package policy, it covers occupants of the car.
Since this point for determination is squarely covered by
the judgment of the Hon'ble Supreme Court in the case of
Surendra Nath Loomba (supra) , and it has also been
dealt with by the learned Tribunal in disposal of issue
no.2, hence this Court does not find any error in the
judgment of the learned Tribunal in deciding issue no 2.
The point for determination no. 2 is decided accordingly.
44. This point for determination no.3 has been framed
on the contentions raised on behalf of the learned
counsel for the claimant/respondent, Mr. Pramod
Bailwal. Learned counsel for the claimant/respondent
has vehemently argued that though the
claimant/respondent has not filed an independent appeal
or a cross-appeal, yet in view of the recent judgments of
the Hon'ble Supreme Court in the case of Shishupal and
Others (supra) and Hansraj (supra), the compensation as
awarded by the learned Tribunal deserves enhancement.
He has also relied upon a judgment of a coordinate
Bench of this Court rendered in Appeal from Order No.
174 of 2023, ICICI Lombard General Insurance Company
v. Nahid and Others.
45. Thus, placing reliance upon the legal principles
as enunciated by the Hon'ble Supreme Court in the cases
of Shishupal and Others (supra) and Hansraj (supra),
and also the judgment in the case of ICICI Lombard
General Insurance Company rendered by a coordinate
Bench of this Court, learned counsel for the appellant
would submit that the claimant/respondent is entitled to
enhancement on account of future prospects, on account
of the heads of loss of consortium, loss of estate, and
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funeral expenses.
46. He would also submit that the lump-sum
amount as has been granted on account of the death of
Shaurya Pawar is also very inadequate, and it ought to
have been granted on the basis of notional income.
47. On the other hand, learned counsel for the
appellant insurance company, Mr. Pulak Agarwal,
Advocate, would rely on the judgment of the Hon'ble
Supreme Court in the case of Ranjana Prakash and
Others (supra) , and he has vehemently argued that there
is no question of any enhancement since the
claimant/respondent has neither filed any independent
appeal for enhancement nor has filed any cross-appeal.
Hence, there is no question of enhancement in the appeal
of the insurance company.
48. While placing reliance upon the judgment in
the case of he
Ranjana Prakash and Others (supra)
would submit that in the said case, the Hon'ble Supreme
Court has held that claimants will not be entitled to seek
enhancement of the compensation by urging any new
ground in the absence of any cross-appeal or cross-
objection.
49. He has also submitted that Order 41 Rule 33
of the CPC cannot be pressed into service to get a larger
or higher relief. He also submits that this Court cannot
increase the compensation in an appeal by the
owner/insurer.
50. After having considered the submissions on
this point as advanced by the learned counsel for the
parties, it is clear that though in the case of
Shishupal
and Others (supra), the Hon'ble Supreme Court has
provided for additional head on account of loss of
domestic care, however, the enhancement on the said
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head would be available to the claimant/respondent had
she filed a separate appeal for enhancement.
51. The judgment in the case of ICICI Lombard
General Insurance Company rendered by a coordinate
Bench also does not come to the aid of the
claimant/respondent in the light of the judgment of the
Hon'ble Supreme Court in the case of Ranjana Prakash
.
and Others (supra)
52. The judgment of the Hon'ble Supreme Court in
the case of Hansraj (supra) also does not come to the aid
of the claimant/respondent, inasmuch as in the absence
of any independent appeal or a cross-appeal by the
claimant/respondent, there is no question of
enhancement of compensation.
53. Thus, in view of the aforesaid
consideration/analysis, the enhancement of the
compensation as being contended on behalf of the
learned counsel for the claimant/respondent does not
arise. Therefore, point for determination no.3 is answered
against the claimant/respondent that in an appeal by the
insurance company, the claimant/respondent cannot
seek enhancement of compensation in the absence of any
cross-appeal or an independent appeal by the claimant.
54. Thus, on account of the aforesaid facts and
circumstances, the contentions as raised by the learned
counsel for the appellant do not find force with the Court,
and the appeals deserve to be dismissed, also the
enhancement as being sought on behalf of the
claimant/respondent also cannot be granted. Thus, the
appeals deserve to be dismissed.
55. The insurance company is directed to deposit
the balance amount before the concerned Tribunal within
45 days from the date of production of the certified copy
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of this order after deducting the amount which has
already been paid to the claimants.
56. The registry is directed to remit the statutory
amount to the Motor Accident Claims Tribunal concerned
forthwith. The original records be also transmitted to the
concerned Tribunal.
(Siddhartha Sah, J.)
03.09.2026
JKJ /
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