Rekha Chettri and Ors. vs TATA AIG General Insurance Company and Ors.
- Court
- High Court of Sikkim
CNR: SKHC01-000145-2024
THE HIGH COURT OF SIKKIM: GANGTOK
(Civil appellate Jurisdiction)
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SINGLE BENCH: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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MAC App. No. 20 of 2024
1 . Rekha Chettri,
Wife of late Deepen Mukhiya @ Deepen Sunwar,
Aged about 33 years,
2. Master Dishant Sunwar,
Son of Late Deepen Mukhiya @Deepen Sunwar,
Aged about 5 years,
(Appellant no.2 being minor is being represented by his natural
mother Appellant no.1).
3. Bhakta Bahadur Sunwar,
Son of Til Bahadur Sunwar,
Aged about 59 years.
4. Parbati Sunwar,
Wife of Bhakta Bahadur Sunwar,
Aged about 49 years.
All residents of Adarsh Goan, Lower Namphing,
P.O. Namphing and P.S. Temi,
District Namchi, Sikkim
Pin No-737134.
….. Appellants.
Versus
1. Tata AIG General Insurance Company,
Having its Branch office at Road level
Floor-1, Deep Building,
Gairi Goan, Tadong, Gangtok, East Sikkim
Pin No.737102
2. Rajendra Chettri,
S/o Late Jagat Bdr. Chettri,
R/o Chakung Chumdong Harabotey,
Sipsu, Soreng District West Sikkim,
Pin No: 737121.
3. Mani Kumar Chettri,
S/o Kul Prasad Chettri,
R/o Hee Goan Gyalshing, District West Sikkim
Pin No.737113.
….. Respondents.
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MAC App No. 20 of 2024
Rekha Chettri & Ors. vs. TATA AIG General Insurance Company & Ors.
Appeal under Section 173 of the Motor Vehicles Act, 1988.
{Impugned Judgment dated 31.05.2024 passed by the Learned Member,
Motor Accidents Claims Tribunal, at Gangtok, Sikkim in M.A.C.T. Case
No.06 of 2023, where the claim of the petitioners/claimants stand
dismissed.
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Appearance:
Mr. Sishir Mothay, Advocate for the Appellants.
Mr. Rahul Rathi and Ms. Khushboo Rathi, Advocates for the
Respondent No.1.
Mr. Bhim Shankar Pradhan, Advocate (through V.C.) for
Respondent Nos. 2 & 3.
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Date of Hearing : 31.07.2026
Date of Judgment : 01.09.2026
Date on which uploaded : 01.09.2026
J U D G M E N T
Bhaskar Raj Pradhan, J.
1. An application under section 166 of the Motor Vehicles Act, 1988
(the M.V. Act) claiming compensation of Rs.19,07,560/- on account of
accidental death of Deepen Mukhia in a motor vehicle accident which
occurred on 12.11.2019 was dismissed by the learned Motor Accident
Claims Tribunal, Gangtok, Sikkim (the learned Tribunal) on the ground
that the cause of accident was due to break failure and therefore there
was no rash and negligent driving by the driver-Rajendra Chettri
(respondent no.2).
2. There were four claimants. The claimant nos.1 to 4 (the appellant
nos.1 to 4) are the wife, son, father and mother of late Deepen Mukhia
who died as a result of the accident respectively.
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MAC App No. 20 of 2024
Rekha Chettri & Ors. vs. TATA AIG General Insurance Company & Ors.
3. The accident vehicle was owned by Mani Kumar Chettri (the
respondent no.3).
4. The respondent no.1 i.e. TATA AIG General Insurance Company
which had insured the accident vehicle did not appear despite
publication of the summons and was proceeded ex parte before the
learned Tribunal. However, they have chosen to appear in the present
appeal in which they are respondent no.1.
5. The learned Tribunal has concluded that the deceased died in the
accident which occurred on 12.11.2019 which is proved by the contents
of the First Information Report (FIR) (exhibit-1) pertaining to
Nayabazar P.S. Case No. 18/2019 dated 12.11.2019 under section 279,
337, 304A of the Indian Penal Code, 1860 (IPC) and the post mortem
report (exhibit-6) is a testimony of the fact. The learned Tribunal has
also concluded that the insurance policy (exhibit-4) and all the
documents including the driving license (exhibit A2) were valid and
effective.
6. Heard the learned counsel for the parties.
7. The learned counsel for the appellants confines his argument only
to the extent that in spite of rejection of claim under section 166 of the
MV Act it was nevertheless permissible for the learned Tribunal to have
granted the no fault liability compensation under section 140 of the MV
Act thereof. He therefore, prays that the provision of section 140 of the
MV Act may be invoked to grant compensation to the heirs of late
Deepen Mukhia who succumbed to his injuries sustained in the
accident. The insurance certificate (exhibit-4) was a “Auto Secure
Commercial Vehicle Package Policy” . The appellants contend that the
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Rekha Chettri & Ors. vs. TATA AIG General Insurance Company & Ors.
insurance certificate (exhibit-4) of the accident vehicle was a package
policy hence the deceased was fully covered by it.
8. The learned counsel for the respondent no.1 contend that the
deceased being the tortfeasor, his heirs are not entitled to
compensation.
CONSIDERATION
Insurance Policy/Certificate
9. The insurance certificate reflects that it is a “Auto Secure
Commercial Vehicle Package Policy” . The limits of liability clause in the
insurance certificate reads as follows:
“ Limits of liability; under section II-1(i) of policy (Death of
or bodily injury): such amount as his necessary to meet the
requirements of the Motor Vehicles Act, 1988. ”
10. It is noticed that there is no clarity in the insurance certificate as
to what section II-1(i) of policy (Death of or bodily injury) refers to.
11. Under the head “important notice” in the insurance certificate it is
also stated:
“ This schedule policy terms and conditions available on
company website and endorsements mentioned herein
above shall read together and word or expression to which
a specific meaning has been attached in any part of this
policy of the schedule shall bear the same meaning
wherever it may appear...........You may visit company
website at www.tataaiginsurance.in for detailed benefits,
terms and conditions and exclusions of the policy ...... ”
12. The website takes one to a brochure relating to “Auto Secure
Commercial Vehicle Package Policy” . Section II thereof relates to
liability to third parties. It reads as under:
“II. Liability To Third Parties
Subject to the limits of liability 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
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Rekha Chettri & Ors. vs. TATA AIG General Insurance Company & Ors.
vehicle against all sums which the insured shall become
legally liable to pay in respect of:
i. death of 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 the employment of such person by the
insured.
ii. damage to property other than property belonging to
the insured or held in trust or in the custody or control
of the insured.
13. The website also takes one to “Auto Secure Commercial Vehicle
Package Policy” which seems to cover goods carrying vehicle,
passenger carrying vehicle and miscellaneous and special type of
vehicles. In the section with the heading “Policy Wordings” section II
relates to liability to third parties and it reads as under:
“SECTION II- LIABILITY TO THIRD PARTIES
1) subjects to the limits of liability 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 vehicle against all sums including
claimants costs and expenses which the insured shall
become legally liable to pay in respect of:
I. death of or bodily injury to any person caused by or
arising out of the use (including the loading and/or
unloading) of the vehicle.
II. damage to property caused by the use (including the
loading and/or unloading) of the vehicle.
PROVIDED ALWAYS THAT
a) The Company shall not be liable in respect of
death, injury damage caused or arising beyond the
limits of any carriage way or thoroughfare in
connection with the bringing of the load to the insured
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Rekha Chettri & Ors. vs. TATA AIG General Insurance Company & Ors.
vehicle for loading thereon or the taking away of the
load from the insured vehicle after unloading there
from.
b) Except so far as is necessary to meet the
requirements of the Motor Vehicle Act the Company
shall not be liable in respect of death or bodily injury
to any person in the employment of the insured
arising out of and in the course of such employment.
c) Except so far as is necessary to meet the
requirements of the Motor Vehicle Act in relation to
the liability under the Workmen’s Compensation Act
1923 the Company shall not be liable in respect of
death or bodily injury to any person (other than a
passenger carried by reason of or in pursuance of a
contract of employment) being carried in or upon
entering or mounting or alighting from the insured
vehicle at the time of occurrence of the event out of
which any claim arises.
d) The Company shall not be liable in respect of
damage to property belonging to or held in trust by or
in the custody of the insured or a member of the
insured’s household or being conveyed by the insured
vehicle.
e) The Company shall not be liable in respect of
damage to any bridge and/or viaduct and/or to any
road and/or anything beneath by vibration or by the
weight of the insured vehicle and/or load carried by
the insured vehicle.
f) Except so far as is necessary to meet the
requirements of the Motor Vehicles Act the Company
shall not be liable in respect of death and/or bodily
injury to any person(s) who is/are not employee(s) of
the insured and not being carried for hire or reward,
other than owner of the goods or representative of
the owner of goods being carried in or upon or
entering or mounting or alighting from the insured
vehicle described in the Schedule of this Policy.
2) The Company will pay all costs and expenses incurred
with its written consent.
3) In terms of and subject to the limitations of the
indemnity granted by this section to the insured the
Company will indemnify any driver who is driving the
insured vehicle on the insured’s order or with insured’s
permission provided that such driver shall as though he/
she were the insured observe fulfil and be subject to the
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MAC App No. 20 of 2024
Rekha Chettri & Ors. vs. TATA AIG General Insurance Company & Ors.
terms exceptions and conditions of this policy in so far as
they apply.
4) The Company may as its own option
a) arrange for representation at any Inquest or Fatal
Inquiry in respect of any death which may be the
subject of indemnity under this section and
b) undertake the defence of proceedings in any Court
of Law in respect of any act or alleged offence causing
or relating to any event which may be the subject of
indemnity under this Policy.
5) In the event of the death of any person entitled to
indemnity under this Policy the Company will in respect of
the liability incurred by such person indemnify his/her
personal representative(s) in terms of and subject to the
limitations of this Policy provided that such personal
representative(s) shall as though they were the insured
observe fulfill and be subject to the Terms Exceptions and
Conditions of this Policy in so far as they apply. ”
14. As noticed above it is always a painstaking exercise to understand
the terms and conditions of the insurance policy. The language in the
insurance certificate does not give a clear picture to the extent of the
indemnity of the insurance company. All that is clear is the quantum of
payments made under various heads. Every insurance policy requires
the insured to visit their web pages and comprehend for themselves if it
is comprehensible. Every certificate of insurance issued should
necessarily provide and clearly state the extent of insurance, the extent
of indemnity they have undertaken and what they are liable for under
any circulars or notices issued by the IRDA. This will ensure that the
insured clearly knows all that is necessary for the insured to know is in
the insurance certificate itself without voyaging into the labyrinth of
pages and pages of their official website.
15. The insurance certificate issued by respondent no.1 is completely
unclear. However, on a deeper probe into their webpage it reflects that
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MAC App No. 20 of 2024
Rekha Chettri & Ors. vs. TATA AIG General Insurance Company & Ors.
the respondent no.1 had taken on the responsibility to indemnify the
respondent no.3 in the event of an accident caused by or arising out of
the use of motor vehicle against all sums which the respondent no.3
shall become legally liable to pay.
16. The respondent no.1 in the present case was proceeded ex parte
by the learned Tribunal. The insurance certificate (exhibit-4) was filed by
the claimants who would have no personal knowledge about it. The
respondent no.3 who was the registered owner of the accident vehicle
only stated that he possessed the relevant documents including the
insurance certificate and filed it. Resultantly, the learned Tribunal was
kept completely in a dark regarding the insurance policy.
17. In National Insurance Company Limited New Delhi vs.
1
Jugal Kishore & Ors. the Supreme Court has observed:
“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
1
(1988) 1 SCC 626
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MAC App No. 20 of 2024
Rekha Chettri & Ors. vs. TATA AIG General Insurance Company & Ors.
this Court in civil appeal would in all 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
over-emphasised. ”
18. I am also of the view that when a claim is made before the
learned Tribunal by a claimant under an insurance certificate/policy and
the insurance company appears after notice is issued, it is incumbent
upon the insurance company to:
(i) first verify whether the insurance certificate/policy
policy through which the claim is made is a valid
insurance certificate/policy issued by them;
(ii) once it is clear to the insurance company that in fact it
is a valid insurance certificate/policy issued by them
then it is incumbent upon them to file the insurance
policy with all its terms and conditions and inform the
learned Tribunal what exactly the insurance policy
covers and the extent of their indemnification;
(iii) the insurance company should also inform the learned
Tribunal whether they are bound to follow certain
directions issued by the IRDA from time to time
relevant to the insurance certificate issued by them.
19. I say so because it is noticed that in every claim for compensation
made by the victims or their dependents the claimants are the ones
who are usually placing the insurance certificate issued by the
insurance company to the owner of the vehicle although they may not
have any personal information about it. In some cases, the claimants
may not have the necessary particulars of the insurance policy taken by
the insured. In such situations, it may not behove of the insurance
company to hide behind the lack of information of the claimants and
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Rekha Chettri & Ors. vs. TATA AIG General Insurance Company & Ors.
deprive them of the benefit of the benevolent legislation. In that sense
the adjudication before the learned Tribunal may not be strictly
adversarial as in other jurisdiction. Therefore, the insurance company
who has issued the insurance certificate/policy providing the requisite
information as above to the learned Tribunal would definitely clear
doubts in the mind of the learned Tribunal to pass necessary effective
orders as required without delay.
20. Section 140 of the MV Act reads as under:
“140. Liability to pay compensation in certain cases
on the principle of no fault .—(1) Where death or permanent
disablement of any person has resulted from an accident arising
out of the use of a motor vehicle or motor vehicles, the owner of
the vehicle shall, or, as the case may be, the owners of the
vehicles shall, jointly and severally, be liable to pay compensation
in respect of such death or disablement in accordance with the
provisions of this section.
(2) The amount of compensation which shall be payable
under sub-section (1) in respect of the death of any person shall
1
be a fixed sum of [fifty thousand rupees] and the amount of
compensation payable under that sub-section in respect of the
permanent disablement of any person shall be a fixed sum of
2
[twenty-five thousand rupees].
(3) In any claim for compensation under sub-section (1),
the claimant shall not be required to plead and establish that the
death or permanent disablement in respect of which the claim has
been made was due to any wrongful act, neglect or default of the
owner or owners of the vehicle or vehicles concerned or of any
other person.
(4) A claim for compensation under sub-section (1) shall
not be defeated by reason of any wrongful act, neglect or default
of the person in respect of whose death or permanent
disablement the claim has been made nor shall the quantum of
compensation recoverable in respect of such death or permanent
disablement be reduced on the basis of the share of such person
in the responsibility for such death or permanent disablement.
3
[(5) Notwithstanding anything contained in sub-section (2)
regarding death or bodily injury to any person, for which the
owner of the vehicle is liable to give compensation for relief, he is
also liable to pay compensation under any other law for the time
being in force:
Provided that the amount of such compensation to be given
under any other law shall be reduced from the amount of
compensation payable under this section or under section
163A.] ”
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Rekha Chettri & Ors. vs. TATA AIG General Insurance Company & Ors.
21. In view of sub-section (4) of section 140 quoted above the
argument of the learned counsel for the respondent no.1 that the
deceased being the tortfeasor, his heirs are not entitled to
compensation is not tenable and therefore, rejected.
22. The issue raised by the learned counsel for the appellants is no
longer res integra as the judgments of the Supreme Court in
Eshwarappa Alias Maheshwarappa & Anr. vs. C.S.
2
Gurushanthappa & Anr . , Indra Devi & Ors . vs. Bagada Ram &
3
Anr. , Nishan Singh & Ors. vs. Oriental Insurance Company
4 5
Limited and Ram Murti & Ors . vs. Punjab State Electricity Board
completely answers it. It is held that it would cover the liability of the
insurer for payment of compensation for the occupant in a car. The
Supreme Court has clearly laid down that fastening liability under
section 140 of the MV Act on the owner of the vehicle is regardless of
the fact that the subject vehicle was not driven rashly and negligently.
It was also held that in such cases where the Tribunal comes to the
conclusion that the vehicle was not driven rashly and negligently it
could have been well advised to invoke section 140 of the MV Act
providing for liability of the owner of the vehicle involved in the
accident. In Smt. Thungala (supra) the Supreme Court held “as rightly
submitted by the claimant-respondents, in accordance with the circular
of the IRDA dated 16.10.2009, insurance companies are liable to
compensate for any occupant in the vehicle under a
comprehensive/package policy. ”
2
(2010) 8 SCC 620
3
(2010) 13 SCC 249
4
(2018) 6 SCC 765
5
Civil Appeal No.7143 of 2022
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MAC App No. 20 of 2024
Rekha Chettri & Ors. vs. TATA AIG General Insurance Company & Ors.
23. It is held that the learned Tribunal could have granted
compensation under section 140 of the MV Act even though it had
rejected the claim under section 166 of the MV Act. It is also held that
the respondent no.3 is liable to pay compensation under section 140 of
the MV Act. In the present case also the claim for compensation was
made by the appellants as heirs of the deceased who was the occupant
of the accident vehicle whose owner, the respondent no.3 had duly
insured it. Consequently, the insurer i.e. the respondent no.1 is liable
to indemnify the owner i.e. the respondent no.3 for his liability under
section 140 of the MV Act.
24. As noticed in Ram Murti (supra), the Supreme Court while
examining a similar situation found that the claimant who was entitled
to compensation under section 140 of the MV Act could still be granted
compensation under the now prevailing section 164 of the MV Act
whereby the compensation in case of death has increased to Rs.5 lakhs
and in case of grievous hurt to Rs.2.5 lakhs as it was a beneficial
provision enacted by the Parliament.
25. In the present case the claim for compensation made by the
claimants is for the accidental death of Deepen Mukhia. Under the then
existing section 140 of the M.V. Act the claimants would be entitled to
only Rs.50,000/-. Considering that this Court is granting compensation
in the year 2026 for the death which occurred on 12.11.2019 and on a
claim petition preferred on 14.02.2023, I am of the view that the
appellants are entitled to the amount of Rs.5 lakhs as compensation to
be paid by the respondent no.1. I, therefore, direct the respondent no.1
to pay the compensation amount of Rs.5 lakhs payable to the
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Rekha Chettri & Ors. vs. TATA AIG General Insurance Company & Ors.
appellants from the date of the claim i.e. 14.02.2023 with interest @
7% payable till actual payment.
26. The appeal is allowed to the above extent and disposed of. The
Trial Court records should be remitted to the Court of learned Motor
Accident Claims Tribunal, Gangtok.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting : Yes
to/