Punjab-Haryana High Court
Malkiat Kaur And Ors vs Salinder Verma And Ors on 21 January, 2019
Author: Avneesh Jhingan
Bench: Avneesh Jhingan
F.A. O. No. 4827 of 2014 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
F.A. O. No. 4827 of 2014 (O&M)
Date of Decision: 21.01.2019
Malkiat Kaur and others
.......Appellants
Versus
Salinder Verma and others
......Respondents
CORAM: HON'BLE MR. JUSTICE AVNEESH JHINGAN Present: Mr. Raghubir Tejpal, Advocate for the appellants.
AVNEESH JHINGAN, J.(oral) The appellants have filed the present appeal against the award dated 08.11.2013 passed by the Motor Accident Claims Tribunal, Kurukshetra (hereinafter referred to as 'the Tribunal') dismissing the claim petition filed under Section 163-A of the Motor Vehicles Act, 1988 (for short 'the Act').
2. The brief facts necessary for adjudication of the present appeal are that a motor vehicular accident took place on 08.3.2012. Ravi Dutt (deceased) along with Raj Singh, Sunil Kumar and Pardeep, was going from Kurukshetra to village Khijarpura in car bearing registration No.HR-07-J-
7796, being driven by Ravi Dutt. At about 4:30 p.m suddenly a stray cow came in front of the car and in the process of saving the cow, Ravi Dutt lost control over the car and hit into safeda tree standing adjacent to the road, as a result, the car was turned over and Ravi Dutt died at the spot due to the injuries sustained in the accident. A claim petition under Section 163-A of the Act was filed by the widow, minor daughter and parents of the deceased.
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3. The Tribunal after considering the facts and appreciating the evidence on record held that the claimants are not entitled to any compensation as deceased was the borrower of the vehicle.
4. Learned counsel for the appellant argued that the deceased being a borrower was covered under the PAC.
5. The only issue for consideration in the present appeal is 'whether a borrower of vehicle is covered under PAC or not?'
6. The issue that the borrower of a vehicle will also be covered under the PAC or not, is based on argument arising from decision of the Supreme Court in Ningamma and another Vs. United India Insurance Co.
Ltd., 2009 (13) SCC 710.
7. Supreme Court dealt with the following issue :-
"13. In the light of the aforesaid submissions, the question that falls for our consideration is whether the legal representatives of a person, who was driving a motor vehicle, after borrowing it from the real owner meets with an accident without involving any other vehicle, would be entitled to compensation under Section 163-A of MVA or under any other provision(s) of law and also whether the insurer who issued the insurance policy would be bound to indemnify the deceased or his legal representatives?"
8. The issue was decided and it was held as under :-
"19. We have already extracted Section 163-A of the MVA hereinbefore. A bare perusal of the said provision would make it explicitly clear that persons like the deceased in the present case would step into the shoes of the owner of the vehicle. In a 2 of 8 ::: Downloaded on - 17-02-2019 08:36:36 ::: F.A. O. No. 4827 of 2014 (O&M) -3- case wherein the victim died or where he was permanently disabled due to an accident arising out of the aforesaid motor vehicle in that event the liability to make payment of the compensation is on the insurance company or the owner, as the case may be as provided under Section 163-A. But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to pay the same is on him. This proposition is absolutely clear on a reading of Section 163-A of the MVA. Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under Section 163-A of the MVA."
It would be appropriate at this stage to quote Sections 140 and 163-A of the Act and GR-36.
"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 vehicles 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 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 3 of 8 ::: Downloaded on - 17-02-2019 08:36:36 ::: F.A. O. No. 4827 of 2014 (O&M) -4- fixed sum of 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.
(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 163 - A. 163 - A. Special provisions as to payment of compensation on structured formuala basis
- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle of the authorised insurer shall be 4 of 8 ::: Downloaded on - 17-02-2019 08:36:36 ::: F.A. O. No. 4827 of 2014 (O&M) -5- liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
Explanation. - For the purposes of this sub- section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923.
(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.
GR 36. Personal Accident (PA) Cover under Motor Policy (not applicable to vehicles covered under Section E, F and G of Tariff for Commercial Vehicles) A. Compulsory Personal Accident Cover for Owner-Driver Compulsory Personal Accident Cover shall be applicable under both Liability Only and Package policies. The owner of insured vehicle holding an 'effective' driving license is termed as Owner- Driver for the purposes of this section.
Cover is provided to the Owner-Driver whilst driving the vehicle including mounting into/dismounting from or traveling in the insured 5 of 8 ::: Downloaded on - 17-02-2019 08:36:36 ::: F.A. O. No. 4827 of 2014 (O&M) -6- vehicle as a co-driver.
NB. This provision deals with Personal Accident cover and only the registered owner in person is entitled to the compulsory cover where he/she holds an effective driving license. Hence compulsory PA cover cannot be granted where a vehicle is owned by a company, a partnership firm or a similar body corporate or where the owner- driver does not hold an effective driving license. In all such cases, where compulsory PA cover cannot be granted, the additional premium for the compulsory P.A. cover for the owner - driver should not be charged and the compulsory P. A. cover provision in the policy should also be deleted. Where the owner-driver owns more than one vehicle, compulsory PA cover can be granted for only one vehicle as opted by him/her.
9. In Ningamma's case (supra), it was held that the representatives of the deceased step into the shoes of the owner of the motor vehicle, hence could not claim compensation under Section 163-A of the Act.
10. Learned counsel for the appellants contended that the Tribunal erred in holding deceased as borrower of the vehicle. His contention is that the PAC is with regard to the owner of the insured vehicle as the deceased had stepped into the shoes of the owner of vehicle, hence would be covered under PAC.
12. Issue that needs consideration is that once it has been held by Supreme Court that the borrower of the vehicle stepped into the shoes of the owner, can the insurance company be permitted to take a contradictory stand, to say that borrower of vehicle is not covered under PAC.
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13. It is not disputed that in the present case, that extra premium was paid for PAC for owner-driver. The term 'owner-driver' has been defined under GR-36. It states "Compulsory Personal Accident Cover shall be applicable under both Liability Only and Package policies. The owner of insured vehicle holding an 'effective' driving license is termed as Owner-
Driver for the purposes of this section. The definition clearly restricts the meaning of `owner-driver'. It only includes owner of the insured vehicle.
There is a further rider that for claiming compensation for PAC owner should be holding an `effective' driving licnese.
14. Note in GR-36 states that only the registered owner in person is entitled for Personal Accident Cover if he holds an effective driving license. The said Cover is not to be granted where the vehicle is owned by a company, a partnership firm or a similar body corporate. This further clarifies that representative of the owner will not fall within the ambit of PAC.
15. The term 'owner-driver' has been defined, hence, no word can be added or deleted from the definition to extend the benefit to claimant so that the term 'owner-driver' can be stretched to mean owner or driver.
16. The award passed by the Tribunal is correct from all aspects and needs no interference. However, at this stage it would be appropriate to invoke Section 140 of the Act. Under the said provision, the claimants would be entitled to ` 50,000/- for `no fault liability' as provided.
17. The award dated 08.11.2013 is modified to the extent that the claimants would be entitled to ` 50,000/- for no fault liability. As the car was insured, the insurer would be liable to pay the said amount.
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18. It is clarified that if the respondents are aggrieved of the said order, they would be at liberty to revive the appeal by moving an application.
19. The appeal is disposed of in the aforesaid terms.
(AVNEESH JHINGAN)
21.01.2019 JUDGE
reema
Whether speaking/reasoned Yes/No
Whether Reportable: Yes/No
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