Madhya Pradesh High Court
Virendra Singh Rajpoot And Ors. vs New India Insurance Co. Ltd. on 21 July, 2006
Equivalent citations: AIR 2007 (NOC) 751 (M. P.) = 2007 A I H C 245, 2007 A I H C 245 (2007) 1 MPHT 63, (2007) 1 MPHT 63
Author: Dipak Misra
Bench: Dipak Misra, R.S. Jha
ORDER Dipak Misra, J.
1. The claimants-appellants are grieved by the award passed by the Motor Accidents Claims Tribunal, Bhopal (in short, 'the Tribunal') in M.V.C. Case No. 75 of 1999, which was initiated at their instance under Section 166 of the Motor Vehicles Act, 1988 (for brevity, 'the Act') for grant of compensation for the death of the deceased. Rajendra Singh Rajpoot, the son of Virendra Singh and Krishna Bai, the appellant Nos. 1 and 2 herein and the brother of the appellant Nos. 3 to 5, putting forth a claim of Rs. 25 lacs.
2. Filtering the unnecessary details, the facts which are necessitous to be adumbrated for disposal of the appeal are that on 1-6-1997, the deceased Rajendra Singh alongwith three friends, namely, Devendra, Shiraj and Anurag was proceeding towards Rajnandgaon when the vehicle in question reached near Bhandara Khapa chowk, some animal came in front of the vehicle as a consequence of which, the deceased lost his balance as a result of which it got dashed against a 'Babool tree'. As pleaded, the said dashing led to the damage of the vehicle and Rajendra and his two friends, namely, Devendra and Shiraj died on the spot. The other person Anurag was seriously injured and carried to Nagpur hospital. It was set forth in the petition for claim that the deceased was 22 years of age and was studying in Class XI and was also working as an agriculturist. The matter was reported at the Police Station, Tumser, District Bhandara and as the death had been caused in an accident, post-mortem was carried out.
3. The respondent entered contest and denied the accident due to lack of knowledge. A further stand was taken that the deceased Rajendra Singh was the owner of the vehicle and at the time of accident, he was driving the vehicle and hence, the question of grant of compensation to the legal representatives did not arise.
4. The Tribunal framed as many as seven issues and came to hold that the deceased, Rajendra Singh had died in a vehicular accident as put forth by the claimants; that the deceased had a valid license to drive the vehicle in question; that the vehicle was insured with the Insurance Company, namely, New India Insurance Company Ltd.; that the claimants are entitled to compensation; that as no extra premium was paid for covering the risk of the owner, the Insurance Company was entitled to be absolved from the liability.
5. We have heard Mr. Aditya N. Sharma, learned Counsel for the claimants/appellants and Mr. Dinesh Koshal, learned Counsel for the respondent-insurer.
6. Mr. Sharma, learned Counsel appearing for the claimants/appellants submitted that the award passed by the Tribunal is sensitively susceptible inasmuch as the Tribunal has failed to appreciate that though Rajendra, the deceased was the owner yet he was driving the vehicle and hence he was covered by the policy as well as the dictionary clause as engrafted under Section 2(9) of the Act. learned Counsel further submitted that the owner is covered if he is hit by his own vehicle while he is a pedestrian but not covered while he is at the steering which patently entails in an absurd situations.
7. Mr. Dinesh Koshal, learned Counsel for the insurer submitted that the concept of privity of contract of insurance is to indemnify the owner and when the owner does not have to indemnify anyone by virtue of any liability occurring, the insurance company is entitled to be exonerated and as the Tribunal has been rightly not muleted with the liability, the award is appropriate and correct. It is further submitted by Mr. Koshal that a comprehensive policy only covers the own damage and may cover the passengers if the extra premium is paid but in the absence of the same, a proper distance between ad valorem policy and the comprehensive policy has to be stretched. It is also contended by him that if the policy is scrutinized, it would be clear as day that it does not cover the owner and covers the driver only. Submission of Mr. Koshal is that reliance on Section 2(9) in a singular and solitary manner is neither correct nor sound inasmuch as there has been a definition of owner under Section 2(30) of the Act and when there is an effective specific definition given in the Act, the same has to be construed in a proper manner and not in an extended manner and it should not be so given especially in a case of this nature to fasten the liability. learned Counsel has submitted that the owner is an owner if he meets the criteria of the definition and cannot be called a driver for the purpose of coverage under the policy because he drives the vehicle at a particular time when the accidents occurs.
8. To appreciate the rivalised submissions raised at the Bar, it is appropriate to refer to the concept of comprehensive policy as has been dealt with by the Apex Court in the case of New India Insurance Company Ltd. v. Shanti Bai . In the aforesaid case, in Paragraph 8, it has been held as under:
8. It was contended before the High Court that a separate premium has been paid for the passengers. This shows that there was a special contract to cover unlimited liability in respect of passengers between the appellant-company and respondent No. 4. The Tribunal as well as the High Court seem to have proceeded on the basis that the appellant-company had charged an extra premium of 0.50 paise per passenger to cover the risk of unlimited liability towards passengers. This seems to be an error. The premium of Rs. 600/- has been paid in respect of 50 passengers. The policy clearly shows this. It is not 0.50 paise per passenger. It is pointed out by the appellant-company with reference to its tariff in respect of "Legal Liability for Accidents to Passengers" that if the limit of liability for any one passenger is fifteen thousand rupees, the rate of annual premium per passenger is Rs. 12/-. If the limit is twenty thousand rupees, the rate of premium per passenger is Rs. 23/- per annum and so on. In respect of unlimited liability, the premium payable per passenger is Rs. 50/-.
9. A Division Bench of this Court in the case of Oriental Insurance Company v. Radha Rani and Ors. , by referring to the decision rendered in the case of National Insurance Company Ltd., New Delhi v. Jugal Kishore AIR 1988 SC 719, opined that in a comprehensive policy extra premium is paid with regard to own damages but the limit of liability with regard to third party risk does not become unlimited.
10. In the case of Hemlata Sahu and Ors. v. Ramadhar and Anr. 1999(2) MPLJ 231, this Court had dealt with in detail with the facet of comprehensive policy and expressed the view which is as under:
Under the comprehensive insurance policy, the owner can only claim reimbursement of damages suffered by the vehicle. The Insurance Company only insures the liability arising out of the insured and it does not insure the insured. Though the policy was comprehensive policy, but it did not cover the insured and as per Section 147(1), it clearly transpires that a policy of insurance must be a policy which insures the person or class of person specified in the policy to the extent specified in Sub-section (2) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in public place. Where there was no evidence to show that any separate premium was paid for the purpose of covering risk of the owner himself, the insurance company was not liable to pay any compensation to the claimants of the deceased scooterist.
11. Recently in the case of Dhan Raj v. New India Assurance Co. Ltd. and Anr. , in Paragraphs 5 to 7 after referring to Section 147 of the Act in Paragraphs 8 to 10, Their Lordships have held as under:
8. Thus, an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorized representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle.
9. In the case at Oriental Insurance Co. Ltd. v. Sunita Rathi, it has been held that the liability of an insurance company is only for the purpose of indemnifying the insured against liabilities incurred towards a third person or in respect of damages to property. Thus, where the insured, i.e., an owner of the vehicle has no liability to a third party the insurance company has no liability also.
10. In this case, it has not been shown that the policy covered any risk for injury to the owner himself. We are unable to accept the contention that the premium of Rs. 4989 paid under the heading "Own damage" is for covering liability towards personal injury. Under the heading "Own damage" the words "premium on vehicle and non-electrical accessories" appear. It is thus clear that this premium is towards damage to the vehicle and not for injury to the person of the owner. An owner of a vehicle can only claim provided a personal accident insurance has been taken out. In this case there is no such insurance.
12. this Court in M.A. No. 1237 of 2005 (Mahila Gutti Bai and Ors. v. Branch Manager, New India Insurance Co. Ltd.), decided on 12-9-2005 while dealing with the claim of the. legal representatives of the owner of the vehicle noted the fact that no extra premium was paid by the owner for covering his own risk and on that foundation affirmed the order of the Tribunal. The claim put forth by the legal representatives of the deceased therein was dismissed.
13. From the aforesaid annunciation of law, it is clear as bright sea waves in a day of sun shine that comprehensive policy ipso facto would not cover the owner. To elaborate the same, a comprehensive policy taken by owner would not cover his own risk. There is a distinction between the own risk and own damage. Own damage pertains to damage caused to the vehicle. Own risk is something different as understood in law. Needless to emphasise, the matter would stand in a different position if the owner pays premium to cover his own risk. We shall dwell upon the said facet at a latter stage.
14. Mr. Sharma, learned Counsel appearing for appellant remained undaunted in his submission that insurance policy though does not cover the owner's risk, it has to be construed to cover the risk and the policy has to be read in a purposive manner. To appreciate the said submission, it is appropriate to refer to Section 2(9) of the Act, it reads as under:
(9) "Driver" includes, in relation to a motor vehicle which is drawn by another motor vehicle, the person who acts as a steerman of the drawn vehicle.
15. In this context, Section 2(30) is to be reproduced, as the same being apposite, it reads as under:
(30) "Owner" means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase, agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement.
16. Contention of Mr. Sharma is that the definition of driver is an inclusive one and relates to a motor vehicle. It is submitted by him that whoever drives the vehicle earns the status of the driver. It is worth noting that the aforesaid definition though an inclusive one by no stretch of imagination can cover the owner since the parliament in his wisdom has defined 'owner' under Section 2(30) which uses the terms 'means'. When the term 'means' has been used the definition becomes clear and does not ordinarily allow any kind of inclusion.
17. Mr. Sharma submitted that when the owner drives a vehicle the owner becomes the driver. To elaborate:the proponement of Mr. Sharma is that if the owner drives the vehicle a metamorphosis takes place and he becomes driver. We really fail to, fathom when the owner has been defined and given a nomenclature and the term driver has been defined. We are afraid, the submission of the learned Counsel is absolutely hypothetical and is not really based on the test of pragmatic prism. There is no possibility of playing possum while adverting to the interpreting a dictionary clause as understood in law. In this context, we may refer with profit to Section 145 which occurs in Chapter 11. Chapter 11 deals with the insurance of motor vehicles against third party risk. Section 146 provides for insurance against third party risk. Section 147 stipulates requirements of policies and limits of liability. The provision casts an obligation to issue policies and gets the vehicle insured. The purpose and the object of the provision is to indemnify the owner. True it is, there is some exception as provided in Sub-section (5) of Section 147. The said provision reads as under :
(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.
18. It is worth noting here that the said provision is consonance with the non-obstante clause but the said clause is relatable to the specification of the party. We have carefully perused the policy that has been brought on record which covers the passengers and the driver. learned Counsel has laboured hard to urge before us that concept of transformation would get attracted when the owner becomes a driver. The said example of Mr. Sharma is in total hypothetical realm. The syclogistic perception of the learned Counsel leaves us unimpressed. We have no other option but to repel the said contention.
19. In the result, the appeal being sans merit stands dismissed. There shall be no order as to costs.