Ku. Bhumika vs Vishal Shahi

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CGHC010005642016 2026:CGHC:46079
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
MAC No. 541 of 2016
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16/10/2026 30.10.2026 -------- 30.10.2026
1 - Ku. Bhumika D/o Prakash Nisad, Aged About 7 Years Minor
Through Guardian Smt. Sumrit Bai Nisad, W/o Late Baisakhu
Nisad, Aged About 63 Years Nani, R/o Bhairav Basti, Sharda Para
Bhilai, P.S. Chhaoni, District Durg, Chhattisgarh.
2 - Smt. Sumrit Bai Nisad Wd/o Late Baisakhu Nisad, Aged About
63 Years R/o Bhairav Basti, Sharda Para Bhilai, P.S. Chhaoni,
District Durg, Chhattisgarh.
... Appellants /claimants
versus
1 - Vishal Shahi S/o Satya Prakash Shahi, Aged About 34 Years
At Present R/o Baikunth Nagar, Pole No.2, House No.333, Camp-
2, Bhilai, P.S. Chhoni, Tahsil And District Durg, Chhattisgarh.
............ Driver
2 - Ajay Pathak S/o R.G. Pathak, Aged About 47 Years R/o Qtr.
No. 24/ B, Avanue-B, Sector-01, Bhilai, Tahsil And District Durg,
Chhattisgarh.
............ Owner

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3 - Divisional Manager, National Insurance Company Limited,
Through G.E.Road, Power House Bhilai, Tahsil And District Durg,
Chhattisgarh.
............ Insurer
... Respondents
{Cause title, as taken from Case Information System}
For Appellants : Mr. Utam Pandey, Advocate
For Respondents No.1 & 2 : Mr. Vikas Kumar Bajpai, Advocate
For Respondent No.3 : Mr. Dashrath Gupta, Advocate
{Hon’ble Shri Justice Santosh Sharma}
C A V Judgment
1. This appeal under Section 173 of the Motor Vehicles Act,
1988 (hereinafter referred to as the “MV Act, 1988”) has
been preferred by the appellants/claimants seeking
enhancement of the compensation awarded by the 6th
Additional Motor Accident Claims Tribunal, Durg (hereinafter
referred to as the “Claims Tribunal”) in Claim Case No. 35 of
2014, vide award dated 23.01.2016, and also seeking
fixation of liability on the Insurance Company in respect of
the death of Meena Bai Nishad in a motor accident dated
08.08.2013.
2. The facts of the case, in brief, are that Meena Bai Nishad
(daughter of appellant No. 2, Sumrit Bai Nishad, and mother
of appellant No. 1, minor Bhoomika Nishad) was working as
a labourer. On 08.08.2013, she was going to the worksite at

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Risali Sector, where her contractor, Paras Bansod, was
carrying out work. As she was not familiar with the location of
the worksite, respondent No. 1 offered to drop her at Risali
on his motorcycle, Hero Honda Karizma bearing Registration
No. CG-07-AL-6147 (hereinafter referred to as the
“offending vehicle”). Accordingly, the deceased was
travelling on the said motorcycle along with respondent No.
1. Near the speed breaker ahead of Shankara Vidyalaya,
Bhilai, respondent No. 1 allegedly drove the motorcycle
rashly and negligently, due to which the motorcycle went out
of control and the deceased fell from it, sustaining serious
injuries. She was admitted to the District Hospital, Durg,
where she succumbed to her injuries during treatment on
10.08.2013. The incident was reported to Bhilai Nagar
Police Station, District Durg, where Crime No. 453/2013 was
registered and investigated.
3. The appellants/claimants filed a claim application under
Sections 166 and 160 of the MV Act, 1988, claiming
compensation of Rs. 6,20,000/- for the death of Meena Bai
Nishad in the motor accident dated 08.08.2013. The
claimants contended that the deceased was a healthy
woman aged about 40 years and was earning approximately
Rs. 4,500/- per month through labour work. They claimed
compensation towards loss of future income, loss of

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dependency, medical expenses, funeral expenses and loss
of love and affection.
4. Respondent Nos. 1 and 2, being the driver and owner of the
offending vehicle, respectively, filed their written statement
admitting that respondent No. 1 was the driver and
respondent No. 2 was the owner of the motorcycle bearing
Registration No. CG-07-AL-6147. However, they contended
that the claimants had exaggerated the facts and presented
misleading and imaginary facts. They further contended that
the deceased herself was negligent and had jumped from
the moving motorcycle near the speed breaker, resulting in
the accident. It was submitted that respondent No. 1
possessed a valid and effective driving licence bearing No.
CG-07-20030008335, valid from 26.06.2013 to 25.06.2014,
and that the offending vehicle was covered by a
comprehensive insurance policy issued by National
Insurance Company Limited for the period from 26.06.2013
to 25.06.2014. Accordingly, they contended that, if any
compensation was payable to the claimants, the same was
liable to be paid by respondent No. 3/Insurance Company.
5. Respondent No. 3/Insurance Company, in its written
statement, denied that the offending vehicle was insured with
it. It further contended that respondent No. 1 did not possess

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a valid and effective driving licence on the date of the
accident and that respondent No. 2 was not related to
respondent No. 1. It was also contended that respondent No.
2 had not given any intimation regarding the accident to the
Insurance Company and that the vehicle had been driven in
violation of the terms and conditions of the insurance policy.
On these grounds, the Insurance Company disputed its
liability to pay compensation and sought dismissal of the
claim application.
6. The Claims Tribunal, upon consideration of the pleadings,
oral and documentary evidence and submissions made by
the parties, held that the accident had occurred due to rash
and negligent driving of the offending motorcycle by
respondent No. 1, resulting in the death of Meena Bai
Nishad. It further held that the offending vehicle was insured
with respondent No. 3 on the date of the accident and that
respondent Nos. 1 and 2 had not violated the terms and
conditions of the insurance policy. However, relying upon the
applicable legal principles concerning the liability of an
insurer towards a pillion rider under an Act-only policy, the
Claims Tribunal held that respondent No. 3/Insurance
Company was not liable to pay compensation. The Claims
Tribunal assessed the compensation payable to the
claimants at Rs. 10,45,000/- and held respondent Nos. 1

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and 2 jointly and severally liable to pay the said amount, with
respondent No. 2 being primarily liable for payment. The
Tribunal further awarded interest at the rate of 9% per
annum from the date of filing of the claim application, i.e.,
24.03.2014, till realization.
7. Learned counsel for the appellants submits that the
appellants have raised several grounds in the appeal,
contending that the award passed by the learned Claims
Tribunal is bad in law. It is submitted that the learned
Tribunal has failed to consider the circular dated 18.03.1978
issued by the Tariff Advisory Committee and the circulars
dated 16.11.2009 and 03.12.2009 issued by the Insurance
Regulatory and Development Authority. The policy in
question was a comprehensive/package policy, under which
the risk of the deceased was covered. Therefore, the learned
Tribunal ought to have fastened the liability upon the
Insurance Company instead of exonerating it from its liability.
It is further submitted that the learned Tribunal has
committed a serious error of law, which deserves to be set
aside.
8. Learned counsel for the appellants further submits that the
learned Claims Tribunal ought to have appreciated the
nature of the insurance policy, which was a package policy,

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and that the risk of the deceased was covered thereunder. It
is also submitted that the learned Claims Tribunal has
awarded compensation under the head of funeral expenses,
i.e., Rs. 50,000/-, and under the head of loss of love and
affection, amounting to Rs. 1,00,000/-.
9. On the other hand, learned counsel appearing for
respondent No. 3/Insurance Company vehemently opposes
the submissions made on behalf of the appellants and
submits that the learned Claims Tribunal has rightly held that
the policy issued in respect of the offending vehicle was an
Act-only policy and, therefore, the Insurance Company was
not liable to pay compensation.
10. I have heard learned counsel for the respective parties and
perused the material available on record.
11. The main issue which arises for consideration in this appeal
is as to whether the insurance policy issued by respondent
No. 3 in respect of the offending vehicle was an Act-only
policy or a Comprehensive/Package Policy and,
consequently, whether the risk of the deceased, who was
travelling as a pillion rider, was covered thereunder.
12. Before examining the aforesaid issue, it would be
appropriate to reproduce the relevant particulars of the
insurance policy, which are as follows:

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National Insurance Company Limited
A. Own Damage Premium
B. Liability Premium Computation
Computation (Section I) in Rs.
(Section II) in Rs.
Basic Premium On Basic Premium Including
Premium for TPPD
Vehicle 1233.00
Vehicle 420.00
Accessories 0.00
CNG/LPG/Bi-Fuel Kit 0.00
Electronic & Electric
Accessories
0.00
Add
a) Compulsory PA
Cover (Owner Driver)
b) Optional PA Cover(Un
Named Passenger)
c) Optional PA
Cover(Pillion Rider)
Legal Liability
d) Legal Liability Cover
(Paid Drivers, Cleaners)
e) Legal Liability Cover
(Other then Paid Drivers,
Cleaners)
50.00
Bi-Fuel Kit
0.00
Total 1233.00
Add Extras :
0.00
Geographical Extension 0.00
ND Cover 185.00
0.00
For any other extra
Sub Total 1418.00
0.00
Less Discounts
For anti-theft devices 0.00
Total Liablity Premium
(B)
470.00
Any other discount
NCB 0.00
Total Premium (A + B) 1888.00
Total Deductions 0.00
For any other extra 0.00
Net Own Damage
Premium
1418.00
Add Service Tax 234.00
Gross Premium 2122.00
13. A bare perusal of the aforesaid particulars of the insurance
policy reveals that there is no specific mention as to whether
the policy was an Act-only policy or a
Comprehensive/Package Policy. It is also evident that
respondent No. 3 did not specifically raise any defence in its
written statement regarding the nature of the policy.
Respondent No. 3 neither produced the complete insurance

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policy along with its terms and conditions nor led any cogent
evidence in this regard. The burden was upon respondent
No. 3 to establish the nature of the policy and the extent of
coverage thereunder, particularly when it sought to deny its
liability on that ground. However, no such material has been
brought on record by respondent No. 3.
14. In this connection, it is relevant to observe that the claimants
seeking compensation under the MV Act are ordinarily not in
possession of the insurance policy or its terms and
conditions. The Insurance Company, being the custodian of
such documents, is in a better position to produce the same
before the Tribunal. This Court is of the view that where a
party is in possession of a document which would assist the
Court in arriving at a just and proper conclusion, such party
ought to produce the said document and cannot be
permitted to take shelter behind the abstract doctrine of
burden of proof.
15. Upon perusal of the material available on record before the
learned Claims Tribunal, it is evident that sufficient
opportunity was afforded to respondent No. 3/Insurance
Company to adduce evidence in support of its defence.
However, it failed to lead any evidence. Consequently, the
opportunity of respondent No. 3 to lead evidence was closed

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by the learned Claims Tribunal.
16. It is also evident from the written statement filed by the
Insurance Company before the learned Tribunal that no
specific defence was raised regarding the nature and terms
of the insurance policy, particularly as to whether it was an
Act-only policy or a Comprehensive/Package Policy. Thus,
the Insurance Company failed to specifically establish that
the policy in question was merely an Act-only policy and did
not cover the risk of the deceased pillion rider.
17. Despite the aforesaid facts and circumstances, the learned
Claims Tribunal, without examining the complete terms and
conditions of the insurance policy and without conducting
any proper enquiry in this regard, arrived at the conclusion
that the policy did not cover the risk of the deceased and
consequently exonerated the Insurance Company from its
liability.
18. It is pertinent to note that the insurance policy available on
record does not clearly disclose the nature of the policy, as
the heading/name of the document mentions “Two Wheeler
Certificate-Cum-Policy Schedule”. Further, the particulars of
the premium indicate that premium was paid under both the
heads, namely, Own Damage Premium Computation

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(Section I) and Liability Premium Computation (Section II).
The policy also contains separate entries relating to
compulsory personal accident cover for the owner-driver and
optional personal accident cover for an unnamed passenger
and a pillion rider.
19. In view of the aforesaid particulars, the nature and extent of
coverage under the insurance policy cannot be conclusively
determined merely on the basis of the policy schedule
available on record. The fact that premium has been paid
towards own-damage and liability components, by itself,
would not be sufficient to conclude that the risk of the pillion
rider was covered. At the same time, in the absence of the
complete policy and its terms and conditions, it would also
not be appropriate to conclude that the policy was merely an
Act-only policy. Therefore, the learned Claims Tribunal ought
to have examined the complete insurance policy, including
the relevant terms, conditions and applicable endorsements,
before arriving at any conclusion regarding the liability of the
Insurance Company.
20. At this stage, it would be relevant to refer to the judgment of
the Hon’ble Supreme Court in National Insurance Co. Ltd.
v. Jugal Kishore, reported in (1988) 1 SCC 626 , wherein,
while dealing with the distinction between an Act-only policy

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and a Comprehensive Policy, the Hon’ble Supreme Court
has observed in paragraph 6 as under :
“6. We have accordingly perused the photostat
copy of the policy to ascertain whether risk for any
amount higher than the amount of Rs 20,000
contemplated by clause (b) aforesaid was
covered. Our attention was invited by learned
counsel for the respondents to the circumstance
that at the right hand corner on the top of page 1
of the policy the words "Commercial Vehicle
Comprehensive" were printed. On this basis and
on the basis that the premium paid was higher
than the premium of an "act only" policy it was
urged by the learned counsel for the respondents
that the liability of the appellant was unlimited and
not confined to Rs 20,000 only. We find it difficult
to accept this submission. Even though it is not
permissible to use a vehicle unless it is covered at
least under an "act only" policy it is not obligatory
for the owner of a vehicle to get it
comprehensively insured. In case, however, it is
got comprehensively insured a higher premium
than for an "act only" policy is payable depending
on the estimated value of the vehicle. Such
insurance entitles the owner to claim
reimbursement of the entire amount of loss or
damage suffered up to the estimated value of the
vehicle calculated according to the rules and
regulations framed in this behalf. Comprehensive
insurance of the vehicle and payment of higher
premium on this score, however, do not mean that

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the limit of the liability with regard to third party
risk becomes unlimited or higher than the statutory
liability fixed under sub-section (2) of Section 95
of the Act. For this purpose a specific agreement
has to be arrived at between the owner and the
insurance company and separate premium has to
be paid on the amount of liability undertaken by
the insurance company in this behalf. Likewise, if
risk of any other nature for instance, with regard to
the driver or passengers etc. in excess of statutory
liability, if any, is sought to be covered it has to be
clearly specified in the policy and separate
premium paid therefor. This is the requirement of
the tariff regula- tions framed for the purpose.
Coming to the photostat copy of the policy in the
instant case it would be seen that Section II
thereof deals with liability to third parties. Sub-
section (1) minus the proviso thereto reads as
hereunder :
(1) Subject to the Limits of Liability the
Company will indemnify the insured against all
sums including claimant's cost and expenses
which the insured shall become legally liable to
pay in respect of -
(i) death or bodily injury to any person
caused by or arising out of the use
(including the loading and or unloading) of
the motor vehicle
(ii) damage to property caused by the use
(including the loading and/or unloading) of

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the motor vehicle.”
21. The aforesaid judgment makes it clear that merely because
a higher premium has been paid or the policy is described as
a Comprehensive Policy, the extent of liability of the
Insurance Company cannot automatically be presumed. The
terms and conditions of the policy, together with the relevant
endorsements and premium paid for the particular risk, are
required to be examined to determine the extent of coverage.
Therefore, the complete policy document assumes
significance in the present case.
22. In the present case, it was incumbent upon respondent No.
3/Insurance Company to produce the complete insurance
policy along with all relevant terms and conditions and
endorsements before the learned Claims Tribunal so that the
nature and extent of coverage could be properly examined.
However, despite having been afforded sufficient
opportunity, the Insurance Company failed to produce the
necessary documents and lead evidence in this regard. In
these circumstances, the conclusion arrived at by the
learned Claims Tribunal regarding the nature of the policy
and exclusion of the risk of the deceased cannot be
sustained without a proper enquiry.

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23. In view of the aforesaid facts and circumstances, this Court
is of the considered opinion that the matter deserves to be
remitted to the learned Claims Tribunal for a limited enquiry
into the nature of the insurance policy, i.e., whether it was an
Act-only policy or a Comprehensive/Package Policy and
whether the risk of the deceased pillion rider was covered
thereunder. For this purpose, the learned Claims Tribunal
shall afford an opportunity to the parties to produce the
relevant documents and adduce evidence, if any, and
thereafter decide the question of liability of the Insurance
Company in accordance with law.
24. This Court is conscious of the fact that the claim petition was
filed on 24.03.2014 and that, even after more than twelve
years of litigation, the matter has not attained finality.
Therefore, this Court expects the learned Claims Tribunal to
conduct the aforesaid enquiry and conclude the same as
expeditiously as possible, preferably within two months from
the date of receipt of a copy of this order.
25. It is further directed that the learned Claims Tribunal need
not issue fresh notices to the parties. The parties shall
appear before the learned Claims Tribunal on 23.12.2026 at
their own responsibility.

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26. In view of the aforesaid observations and directions, the
miscellaneous appeal is disposed of by remitting the matter
to the learned Claims Tribunal for the limited purpose
indicated hereinabove.
27. There shall be no order as to costs.
Sd/-
(Santosh Sharma)
JUDGE
Rahul Dewangan