Bombay High Court
United India Insurance Co.Ltd vs Kirtikumar S/O Mannalalji Lunawat on 20 December, 2013
Author: A. P. Bhangale
Bench: A. P. Bhangale
1 fa505.13.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
First Appeal No.505 of 2013
United India Insurance Co.Ltd.,
Through its Branch Manager,
United India Insurance Co.Ltd.,
Mahajanwadi Chowk, Yavatmal,
Tahsil and District Yavatmal
(Vide P.No.230302/31/04/04917
Valid from 10/2/05 to 9/2/06).
ig ..... Appellant.
:: versus ::
1. Kirtikumar S/o Mannalalji Lunawat,
Aged about 30 years,
Occupation Business,
R/o Ner, Tahsil Ner,
District Yavatmal.
2. Mahavir S/o Mannalalji Lunawat,
Aged about 30 years,
Occupation Business,
R/o Asegaondevi,
Tahsil Babhulgaon,
District Yavatmal,
(Owner of TVS-Victor
Motorcycle No.MH-29/H-3247). ..... Respondents.
==========================================
Shri M.R.Kalar, counsel for the appellant.
Shri J.H.Kothari, counsel for R-1.
==========================================
CORAM : A. P. BHANGALE, J.
RESERVED FOR : 03.12.2013.
PRONOUNCED FOR : 24.12.2013.
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2 fa505.13.odt
ORAL JUDGMENT.
1. This appeal is preferred, against judgment and award dated 26.11.2012, passed by the learned Member, Motor Accident Claims Tribunal, Yavatmal, in Motor Accident Claims Petition No.198 of 2006, by the appellant - United India Insurance Co.Ltd., Yavatmal.
2. The facts in brief giving rise to file the present appeal, are thus :
The claim application was filed under Section 163-A of the Motor Vehicles Act, 1988 (for short, "the said Act").
3. It was the case of claimant - Kirtikumar Lunawat, that on 3.6.2005, at about 02:30 p.m., while he was going from Amravati side to Ner Bus Stand, motorcycle bearing Registration No.MFZ-402, came from opposite side suddenly, and gave violent dash to the claimant, near Navakar Provisions, Amravati Road, Ner. In the result, the .....3/-
::: Downloaded on - 06/01/2014 04:09:12 :::3 fa505.13.odt claimant suffered fracture to his right radius lower end with fracture collis with lacerated wound to the scalp. He was shifted to Rural Hospital, Ner and thereafter taken to V.N.G.M.C. Hospital, Yavatmal and then to Dr. Anoop Kothari, Hospital. Even, when the claim application was filed, he was taking the medical treatment from Dr. Ajit Phadke and Dr. Dipak Dabhere at Yavatmal.
It was further the case of the claimant, that when the fracture was caused to his right hand as a result of the accident, he lost working power of right hand and became permanently disabled while he was 27 years old.
He used to earn sum of Rs.6,000/- per month. The assessment of his permanent disability was 25%.
Therefore, he had restricted his claim to Rs.1,00,000/- in his claim application.
According to the claimant, offending motorcycle TVS-
Victor bearing Registration No.MH-29-H-3247 was owned by Mahavir S/o Mannalalji Lunawat and was insured with appellant - United India Insurance Co.Ltd., Yavatmal, and the accident occurred during validity period of the insurance policy.
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4. The appellant - United India Insurance Co.Ltd., denied its liability to pay the compensation on the ground that motorcycle TVS-Victor bearing Registration No.MH-29- H-3247 was not offending vehicle while motorcycle bearing Registration No.MFZ-402, which according to the claimant came suddenly, and gave violent dash to the claimant. But the driver, owner and the Insurance Company of the offending motorcycle were not joined as party in the claim petition. Therefore, according to the appellant, the award could not have been passed against the appellant as the appellant had no concern with the offending motorcycle.
5. The learned counsel appearing for the appellant contended, that the Tribunal erred in law to impute the liability upon the appellant particularly when the owner, driver and insurer of the offending motorcycle were not joined as party to the claim application.
Even according to the claimant, as the motorcycle bearing Registration No.MFZ-402, came from opposite .....5/-
::: Downloaded on - 06/01/2014 04:09:12 :::5 fa505.13.odt side suddenly, and gave violent dash to the claimant, which resulted in injuries to the claimant. But the claimant did not bother to join owner, driver and the insurer of the offending motorcycle in the proceedings before the Tribunal. Therefore, it was not just and proper on the part of the Tribunal to impute the liability upon the appellant Insurance Company.
6. Further, according to the appellant, the claimant himself was driving the motorcycle, belonging to his brother, i.e. TVS-Victor bearing Registration No.MH-29- H-3247. The claimant was a wrong doer and he could not have claimed the compensation if accident occurred because of his own rashness and negligence by using motorcycle belonging to his brother and insured by the appellant.
7. According to the appellant, under the Insurance Policy, in respect of motorcycle TVS-Victor bearing Registration No.MH-29-H-3247, which claimant was driving, was insured with the appellant, but the Insurance .....6/-
::: Downloaded on - 06/01/2014 04:09:12 :::6 fa505.13.odt Policy did not cover the risk of the driver of the insured vehicle driving motorcycle without having valid motor driving licence and when the claimant was not "third party" while using motorcycle i.e. TVS-Victor bearing Registration No.MH-29-H-3247, which in fact belonged to his real brother.
8. Thus, according to the learned counsel for the appellant, when the facts stated revealed that offending motorcycle was bearing Registration No.MFZ-402, which suddenly came, and gave dash to the motorcycle driven by the claimant, it was necessary for the claimant to join driver, owner and insurer of the offending motorcycle i.e. motorcycle bearing Registration No.MFZ-402, which according to him gave dash to him but this was not done.
Secondly, the Insurance Policy of the motorcycle TVS-
Victor bearing Registration No.MH-29-H-3247 did not cover the risk of the claimant as driver as he was not "third party" but gratuitously driving motorcycle of his real brother risking the accident.
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9. It is true that under Section 163-A of the said Act, the owner of the motor vehicle of the authorized insurer, is liable to pay the compensation for the accident arising out of the use of the motor vehicle, but the Second Schedule with reference to Section 163-A of the said Act, provides compensation for "third party". The heading itself would be clear that the Second Schedule is only with reference to Section 163-A of the said Act, a Schedule for claim for compensation by "third party" in respect of fatal accident or injury cases. The claimant using motorcycle of his brother was not a "third party" to claim compensation from his brother whose motorcycle he was using. It must be noted that the Motor Accident Claims Tribunal are constituted to adjudicate the claims for compensation in respect of the accidents involving the bodily injury to the person arising out of use of the motorcycle or damages to the property of a "third party".
The compensation may be claimed by the person who has sustained the injury or by the owner of the property which was damaged claimable by injured victim or by any duly authorized person or legal representatives of the .....8/-
::: Downloaded on - 06/01/2014 04:09:12 :::8 fa505.13.odt victim who died in the motor vehicle accident right to claim compensation has to be considered in the background of entitlement of the person claiming compensation for injury arising out of the motor vehicle accident.
10. If we examine the facts and circumstances of the present case, the case of the claimants is, that he was driving the motorcycle, which was dashed by another offending motorcycle. The foundation of the claim is, that another motorcycle bearing Registration No.MFZ-402, came from opposite side suddenly, and driven rashly and negligently gave violent dash to the claimant. In other words, it was not the case of the claimant, that the motorcycle which he was driving, was responsible for the accident. In other words, the claimant was not blaming his brother as owner of the offending motorcycle while claiming compensation from the appellant as insurer for the motorcycle of his brother.
11. Section 163-A of the said Act, is no doubt, the special .....9/-
::: Downloaded on - 06/01/2014 04:09:12 :::9 fa505.13.odt provision on the basis of the pre-structured formula in Second Schedule but it is for to provide compensation to the "third party" victims, although "third party" victims need not prove negligence or tortuous act.
In the present case, the claimant was not a "third party" victim from the view point of owner and insurer of motorcycle which the claimant was driving. The claimant did not join the driver, owner and insurer of the offending motorcycle bearing Registration No.MFZ-402, as party to the claim proceedings, therefore, the omission on the part of the claimant to join driver, owner and insurer of the offending motorcycle as party is a fatal for claim compensation for bodily injury caused to him, because on his own showing according to claimant offending motorcycle was motorcycle bearing Registration No.MFZ-402, and not the motorcycle bearing Registration No.MH-29-H-3247, which he was driving. Furthermore, according to the appellant, when the owner of the motorcycle insured by it handed over motorcycle to another person who did not hold valid driving licence. It was the case of the willful infringement of violation of .....10/-
::: Downloaded on - 06/01/2014 04:09:12 :::10 fa505.13.odt insurance contract by the owner of the motorcycle insured by it. In any event, therefore, the appellant was not responsible to pay the compensation to the claimant in this case.
12. It was not the case of respondent No.2 - Mahavir S/o Mannalalji Lunawat, that he had allowed the claimant as driver to drive his motorcycle. The claimant was not "third party" so as to claim the compensation from his brother as owner of the motorcycle which he was driving as also from the insurer of the motorcycle which he was driving. The claimant incurred the grave risk of not joining the driver, owner and insurer of the offending motorcycle.
13. The evidence recorded in the proceedings would reveal, that first informant Vijay Jadhav lodged FIR vide Crime No.81 of 2005 dated 4.6.2005 at Ner Police Station, District Yavatmal against the claimant in this case, that he had overtaken a maruti car by driving his motorcycle bearing Registration No.MH-29-H-3247 and dashed Hero .....11/-
::: Downloaded on - 06/01/2014 04:09:12 :::11 fa505.13.odt Honda motorcycle bearing Registration No.MFZ-402. The offence under Sections 279 and 337 of the Indian Penal Code was recorded against the claimant indicating that the claimant was prosecuted in criminal case for rash and negligent driving.
On behalf of the Insurance Company, Branch Manager at Yavatmal, was examined who deposed the Insurance Policy (Exh.54) was in premium of Rs.415/-
towards damages to the vehicle and "third party"
premium was Rs.160/- and additional payment of Rs.50/-
was towards personal accident to owner cum driver covering the risk of Rs.1,00,000/-, but there was no premium for risk of the person other than the owner under the policy. In other words, therefore, the insurance policy (Exh.54) upon perusal of it would indicate that the policy covered use of the vehicle for any purpose other than hire or reward. Therefore, brother of the owner of the motorcycle bearing Registration No.MH-29-H-3247 hirer of the vehicle was not covered under the policy.
14. It is not the case of the claimant that he was holding .....12/-::: Downloaded on - 06/01/2014 04:09:12 :::
12 fa505.13.odt valid driving licence while he was driving the vehicle of his brother. His evidence is silent about it. That being so, the claimant was not entitled to claim the compensation either from his brother or insurer of his brother's vehicle.
He could have claim the compensation from the owner, driver and insurer of the offending motorcycle which according to him dashed his motorcycle as "third party"
but he did not. The claimant had failed to plead and prove right to claim compensation as "third party".
15. In the facts and circumstances of the present case, therefore, the appellant was wrongly held liable to pay the compensation to the claimant. The claim application ought to have been dismissed in the facts and circumstances of the case.
16. This Court in the case of HDFC Chubb General Insurance Co.Ltd. ..vs.. Shantidevi Rajbalsingh Thakur and another, reported at 2008 ACJ 1280, considered the meaning of the term victim in paragraph No.44 and held, that a person who himself is negligent .....13/-
::: Downloaded on - 06/01/2014 04:09:12 :::13 fa505.13.odt and on whose account even the owner, would not be vicariously liable to pay the compensation. In substance, therefore, if a person has failed to observe care and caution and owner of the motor vehicle had not taken insurance cover by a special contract to cover such gratuitous driver allowed to use the motor vehicle, insurer of such vehicle would not be liable to compensate such gratuitous driver allowed by the owner of the vehicle as such gratuitous driver is not covered within the meaning of "third party" contemplated in Second Schedule. In this case, therefore, the claimant was not entitled to claim the compensation from his brother (owner of the motorcycle which claimant was driving) and also the insurer (appellant) particularly when the claimant was negligent to join the owner, driver and insurer of the offending motorcycle as party to the proceedings against whom he could have claimed as "third party".
17. In view of above, the appellant - United India Insurance Company Limited, was not liable to pay the compensation to the claimant when the risk was not .....14/-
::: Downloaded on - 06/01/2014 04:09:12 :::14 fa505.13.odt covered under the insurance policy contract. Hence, the impugned judgment and award needs to be set aside.
18. In the result, the appeal is allowed. The impugned judgment and award dated 26.11.2012, passed by the learned Member, Motor Accident Claims Tribunal, Yavatmal, in Motor Accident Claims Petition No.198 of 2006, is hereby set aside. There shall be no order as to costs.
JUDGE !! BrWankhede !! ...../-
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