1 2025:CGHC:5867 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 373 of 2016 Jhumarlal Jain S/o Late Bisan Lal Jain, Aged About 50 Years R/o Village - Road Atariya, Thana/ Tahsil- Chhuikhadan, Distt.- Rajnandgaon, Chhattisgarh ... Appellant versus 1. Savanvati Wd/o Late Sudamaram Gond, Aged About 45 Years R/o Village - Road Atariya, Thana/ Tahsil- Chhuikhadan, Distt.- Rajnandgaon, Chhattisgarh 2. Ramswarup Gond S/o Late Sudamaram Gond, Aged About 18 Years R/o Village- Road Atariya, Thana/ Tahsil- Chhuikhadan, Distt.- Rajnandgaon, Chhattisgarh 3. Parwati Bai D/o Late Sudamaram Gond, Aged About 23 Years R/o Village- Road Atariya, Thana/ Tahsil- Chhuikhadan, Distt.- Rajnandgaon, Chhattisgarh 4. Phulesh Bai D/o Late Sudamaram Gond, Aged About 20 Years R/o Village- Road Atariya, Thana/ Tahsil- Chhuikhadan, Distt.- Rajnandgaon, Chhattisgarh 5. Roopvati W/o Jhumuk Gond, Aged About 65 Years R/o Village- Road Atariya, Thana/ Tahsil- Chhuikhadan, Distt.- Rajnandgaon, Chhattisgarh ...........… Claimants 6. Branch Manager, National Insurance Company Ltd., Branch Office- Kamthi Line, Rajnandgaon, Distt. Rajnandgaon, Chhattisgarh ........… Insurance ... Respondent(s) Digitally signed by BHOLA NATH KHATAI Date: 2025.02.05 10:27:47 +0530 2 For Appellant : Mr. Arvind Prasad, Advocate, on behalf of Mr. Samir Singh, Advocate For Respondent No.6 : Mr. Dashrath Gupta, Advocate Hon'ble Shri Justice Sanjay Kumar Jaiswal, J. Order On Board 31/01/2025 1. This appeal has been preferred by the owner/driver under section 173 of the Motor Vehicles Act challenging the award dated 11.12.2015 passed by the Motor Accident Claims Tribunal, Kabirdham (Kawardha), Chhattisgarh in Claim Case No.37/2014 awarding compensation of Rs.3,14,000/- with interest @ 7% per annum, from the date of application till its realization, in favour of the claimants and against the appellant. 2. The gist of the claim before the Tribunal was that on 10.02.2014 at about 3:30 p.m., Sudamaram Gond was travelling as a pillion rider on the motorcycle bearing registration No. CG 08 H 5518 from his village Atariya towards Kawardha which was being driven by the appellant. Near Biranpur turn on the main road from Lohara to Kawardha, the front wheel of the said motorcycle burst and the appellant could not control the motorcycle and both the persons riding on it fell on the road. On account of the accident, Sudamaram suffered grievous injuries on his head and other parts of the body. He was immediately taken to Govt. Hospital, Sahaspur, Lohra and considering his critical condition, he was shifted to Sector 9 Hospital, Bhilai where he died during treatment. The claimants, who are the wife, children and mother of the deceased, preferred a claim application before the Tribunal claiming compensation of Rs.19,70,000/-. Learned Tribunal, on a close scrutiny of the evidence brought on record, awarded total compensation of 3 Rs.3,14,000/- in favour of the claimants with interest @ 7% per annum, from the date of application till its realization. 3. While passing the impugned award the Tribunal found that the risk of deceased Sudamaram (pillion rider) was not covered under the Act policy, hence the insurance company has been exonerated from the liability and the owner-cum-driver has been held liable for payment of compensation, against which this appeal has been filed by owner-cum-driver Jhumarlal Jain. 4. Learned counsel for the appellant citing the judgment of the Hon’ble Supreme Court in the case of Mohan Krishnan S. v. K. Baalasubramaniyam and others, 2022(4) TAC 28 (SC) argues that the matter regarding “whether the risk of the pillion rider will be covered under the Act policy or not?” has been referred to a larger Bench of the Supreme Court which is still pending and not finally decided. Therefore, the Tribunal has erred in exonerating the insurance company from its liability. Hence, prays for allowing the appeal. 5. Learned counsel for the respondent insurance company argues that in the absence of a decision from the larger Bench of the Supreme Court, the existing legal position will be applied and according to which, the risk of the pillion rider is not covered under the Act policy. Therefore, the conclusion of the Tribunal is appropriate and the owner's appeal should be dismissed. In support of his argument, he cited Oriental Insurance Company Limited v. Surendra Nath Loomba and others, 2013 (1) TAC 15 (SC) and National Insurance Company Limited v. Balakrishnan and Another, 2013 (1) TAC 1 (SC). 6. Heard learned counsel for the parties and perused the record. 7. It is an undisputed fact that the motorcycle in question was being driven by the appellant, he was the owner of the said motorcycle 4 and Deceased Sudamaram was the pillion rider. It is also an undisputed fact that the insurance policy of the said motorcycle Ex. NA-4 is an Act policy, i.e. it is not a comprehensive/package policy and as per the existing legal position, Act policy does not cover the risk of pillion rider. It is well settled legal position that if a matter is referred to a larger Bench of the Supreme Court but not ultimately decided by that larger Bench, the existing legal position will continue to be the law in effect. 8. In this regard, the Hon'ble Supreme Court in the case of Balakrishnan (supra) in paragraph-21 has expressed the concept as follows:- “21. 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 the 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 in the case of Bhagyalakshmi and others v. United Insurance Company Limited and another, (2009) 7 SCC 148 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 the 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.” 9. In the light of the above judgment, when the Hon'ble Supreme Court has not yet given any other opinion in this matter, considering the insurance policy of the offending vehicle as the Act Policy, the risk 5 of the pillion rider would not be covered under it. Therefore, there is no error or illegality in the decision of the Tribunal in exonerating the insurance company from its liability. 10. Hence, the appeal is dismissed as not maintainable. Cross-Appeal 11. The cross-appeal has been filed by the claimants claiming for enhancement of compensation. However, there is no representation on behalf of the Claimants. 12. Learned Tribunal, considering the evidence and documents brought on record, has assessed the income of the deceased to be Rs.3,000 per month i.e. Rs.36,000 per annum as no documentary evidence was brought on record regarding his income. Taking into account the number of claimants, 1/3rd of the income has been deducted towards personal expenses and the amount after deduction comes to Rs.24,000/-. Considering the age of the deceased to be 55 years at the time of incident, multiplier of 11 was applied and the total loss of dependency worked out to Rs.2,64,000. Apart from this, Rs.50,000/- has been given under other heads. Accordingly, the Tribunal has awarded total compensation of Rs.3,14,000/- in favour of the claimants with interest @ 7% per annum, from the date of application till its realization. 13. In the cross-appeal, the claimants have pleaded that the Tribunal has erred in determining the income of deceased at Rs.100 per day instead of Rs.400 and therefore, the compensation awarded by the Tribunal is on the lower side and needs to be enhanced suitably. It has been pleaded that the deduction should be 1/4th instead of 1/3rd, of the income and the multiplier should be 12 instead of 11 considering the age of the deceased. It has also been pleaded that the compensation given under other heads needs to be enhanced 6 suitably. 14. In the case, the accident took place due to tyre burst. The driver/owner has been found responsible. The deceased was the pillion rider. Hence, taking into consideration all the facts and evidence on record, the amount awarded by the Tribunal is found to be appropriate and there is no need for enhancement in it. 15. Accordingly, the cross-appeal of the claimants stands dismissed. 16. In the result, the appeal of the owner-cum-driver and the cross- appeal of the claimants are dismissed affirming the impugned award passed by the learned Tribunal. Sd/- (Sanjay Kumar Jaiswal) Judge Khatai