Madhya Pradesh High Court
The New India Assurance Company Ltd. vs Smt. Shikha Goyal on 31 August, 2021
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
THE HIGH COURT OF MADHYA PRADESH
MA-1414-2021
The New India Assurance Company Limited Vs. Smt. Shikha
Goyal and others
Gwalior, Dated : 31-08-2021
Shri B.N. Malhotra, Counsel for the appellant.
Shri Sunil Kumar Jain, Counsel for the respondents No. 1 and
2. Shri Vivek Khedkar, Counsel for the respondent No. 3 through video conferencing.
This miscellaneous appeal under Section 173 of the Motor Vehicles Act has been filed against the order dated 05.04.2021 passed by third Additional Motor Accident Claims Tribunal, Morena in Motor Accident Claim Case No.355/2017, by which the compensation amount of Rs.4,36,156/- has been awarded to the respondents No. 1 and 2 under Section 163-A of the Motor Vehicles Act.
2. The necessary facts for disposal of this appeal are that the deceased Yogesh Kumar Goyal was driving the Car bearing registration No.MP06-CA-4843 and the Car turned up side down resulting in death of Yogesh Kumar Goyal. Respondent No. 3 (mother of the deceased) is the registered owner of the Car in question. Respondents No. 1 and 2 filed an application under Section 163-A of the Motor Vehicles Act for grant of compensation on the basis of structured formula. The appellants filed their written 2 THE HIGH COURT OF MADHYA PRADESH MA-1414-2021 The New India Assurance Company Limited Vs. Smt. Shikha Goyal and others statement and denied that the monthly income of the deceased was Rs.40,000/-. It was further claimed that in fact, the deceased himself was driving the vehicle in a negligent manner and met with an accident on account of his own negligence. The insurance of the vehicle was admitted. It was further claimed that respondents No. 1 and 2 / Claimants should also plead and prove that they have not received any compensation from any other department. It was further pleaded that the contention of respondents No. 1 and 2 that the Car turned up side down on account of failure of brake is false. It was further pleaded that since the deceased himself was driving the vehicle, therefore, he cannot be kept in the category of third person. It was further pleaded that the deceased was not having any valid license and Car was not having any fitness certificate and was being driven contrary to the provisions of Motor Vehicles Act. In the alternative, it was further pleaded that in case, if it is found that the appellant is liable to pay the compensation, then its maximum liability is limited to Rs.2,00,000/-. Since the Car was registered in the name of his mother, therefore, the case of the driver / deceased would be covered under personal accident cover for owner-driver.
3. The Claims Tribunal after considering the evidence led by the parties allowed the claim petition by the impugned award dated 3 THE HIGH COURT OF MADHYA PRADESH MA-1414-2021 The New India Assurance Company Limited Vs. Smt. Shikha Goyal and others 05.04.2021 and awarded Rs.4,36,156/- and directed for release of amount as per para 38 of the award.
4. Challenging the award passed by the Claims Tribunal, it is submitted by the counsel for the appellant that since the deceased was son of the registered owner, therefore, he had stepped into the shoes of the owner and thus, the application under Section 163-A of the Motor Vehicles Act was not maintainable. It is further submitted that even otherwise, the maximum liability of the appellant was up to Rs.2,00,000/- and the Claims Tribunal has committed material illegality by making the appellant jointly and severally liable for entire compensation amount. It is further submitted that it is clear from the Insurance Policy that no premium was charged for compulsory PA cover for owner-driver and, therefore, the appellant is not responsible to pay any compensation amount at all.
5. Per contra, counsel for the respondents have supported the reasons assigned by the Claims Tribunal.
6. Heard the learned counsel for the parties.
7. In the Insurance Policy Ex. D-1, it is not shown as to whether any compulsory PA cover for owner-driver was charged or not, as the block in front of the said head is blank. However, the appellants have examined Charan Singh (DW-2) who was working on the post of 4 THE HIGH COURT OF MADHYA PRADESH MA-1414-2021 The New India Assurance Company Limited Vs. Smt. Shikha Goyal and others Senior Assistant in the office of New India Insurance Company, Division Office-2, Ravi Nagar, Gwalior, who has specifically stated in his examination-in-chief itself that the premium for owner-driver was charged. In cross-examination, he admitted that he has not filed complete copy of the Insurance Policy. As the witness of the appellant had claimed in his examination-in-chief that premium for PA cover for owner-driver was charged and he was not declared hostile, therefore, now the appellant cannot take somersault by submitting that the evidence of his own witness should be discarded. Once the fact has been admitted by the appellants then due to said admission, the claimants were not required to prove as to whether the premium for compulsory PA cover for owner-driver was charged or not. In view of specific admission made by Charan Singh (DW-2), it is clear that Insurance Company/appellant had charged compulsory PA cover for owner-driver.
8. Counsel for the appellants himself has relied upon the judgment passed by the Supreme Court in the case of Ningamma and another Vs. United India Insurance Co. Ltd. reported in 2009 ACJ 2020 in which it has been 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 5 THE HIGH COURT OF MADHYA PRADESH MA-1414-2021 The New India Assurance Company Limited Vs. Smt. Shikha Goyal and others like the deceased in the present case would step into the shoes of the owner of the vehicle. In a 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."
9. In response, counsel for the respondents No. 1 and 2 have relied upon judgment passed by the Supreme Court in the case of Ramkhiladi and another Vs. The United India Insurance Company and another reported in (2020) 2 SCC 550, in which it has been held as under:-
"9.5. It is true that, in a claim under Section 163-A of the Act, there is no need for the claimants to plead or establish the negligence and/or that the death in respect of which the claim petition is sought to be established was due to wrongful act, neglect or default of the owner of the vehicle concerned. It is also true that the claim petition under Section 163-A of the Act is based on the principle of no-fault liability. However, at the same time, the deceased has to be a third party and cannot maintain a claim under Section 163-A of the Act against the owner/insurer of the vehicle which is borrowed by him as he will be in the shoes of the owner and he cannot maintain a claim under Section 6 THE HIGH COURT OF MADHYA PRADESH MA-1414-2021 The New India Assurance Company Limited Vs. Smt. Shikha Goyal and others 163-A of the Act against the owner and insurer of the vehicle bearing Registration No. RJ 02 SA 7811. In the present case, the parties are governed by the contract of insurance and under the contract of insurance the liability of the insurance company would be qua third party only. In the present case, as observed hereinabove, the deceased cannot be said to be a third party with respect to the insured vehicle bearing Registration No. RJ 02 SA 7811. There cannot be any dispute that the liability of the insurance company would be as per the terms and conditions of the contract of insurance. As held by this Court in Dhanraj [Dhanraj v. New India Assurance Co. Ltd., (2004) 8 SCC 553 : 2005 SCC (Cri) 363] , 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 authorised 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. In the said decision, it is further held by this Court that Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle.
9.6. In view of the above and for the reasons stated above, in the present case, as the claim under Section 163-A of the Act was made only against the owner and insurance company of the vehicle which was being driven by the deceased himself as borrower of the vehicle from the owner of the vehicle and he would be in the shoes of the owner, the High Court has rightly observed and held that such a claim was not maintainable and the claimants ought to have joined and/or ought to have made the claim under Section 163-A of the Act against the driver, owner and/or the insurance company of the offending vehicle i.e. RJ 29 2M 9223 being a third party to the said vehicle.
9.7. Now, so far as the reliance placed upon by the learned advocate for the claimants on the decision of this Court in Naveen Kumar [Naveen Kumar v. 7 THE HIGH COURT OF MADHYA PRADESH MA-1414-2021 The New India Assurance Company Limited Vs. Smt. Shikha Goyal and others Vijay Kumar, (2018) 3 SCC 1 : (2018) 2 SCC (Civ) 1 :
(2018) 1 SCC (Cri) 661], on considering the issue involved in that decision, we are of the opinion that the said decision shall not be applicable to the facts of the case on hand and/or the same shall not be of any assistance to the claimants. In that case, the issue was as to who could be said to be the registered owner of the vehicle and the liability of the owner who sold the vehicle, but his name continued to be as the owner with the registering authority. To that, it was held that the person in whose name the motor vehicle stands registered is the owner of the vehicle for the purpose of the Act.
9.8. However, at the same time, even as per the contract of insurance, in case of personal accident the owner-driver is entitled to a sum of Rs 1 lakh. Therefore, the deceased, as observed hereinabove, who would be in the shoes of the owner shall be entitled to a sum of Rs 1 lakh, even as per the contract of insurance. However, it is the case on behalf of the original claimants that there is an amendment to the 2nd Schedule and a fixed amount of Rs 5 lakh has been specified in case of death and therefore the claimants shall be entitled to Rs 5 lakh. The same cannot be accepted. In the present case, the accident took place in the year 2006 and even the judgment and award was passed by the learned Tribunal in the year 2009, and the impugned judgment and order has been passed by the High Court in 10-5-2018 [United India Insurance Co. v. Ramkhiladi, 2018 SCC OnLine Raj 3264] i.e. much prior to the amendment in the 2nd Schedule. In the facts and circumstance of the present case, the claimants shall not be entitled to the benefit of the amendment to the 2nd Schedule. At the same time, as observed hereinabove, the claimants shall be entitled to Rs 1 lakh as per the terms of the contract of insurance, the driver being in the shoes of the owner of the vehicle.
9.9. Now, so far as the submission made on behalf of the claimants that in a claim under Section 163-A of the Act mere use of the vehicle is enough 8 THE HIGH COURT OF MADHYA PRADESH MA-1414-2021 The New India Assurance Company Limited Vs. Smt. Shikha Goyal and others and despite the compensation claimed by the heirs of the owner of the motorcycle which was involved in the accident resulting in his death, the claim under Section 163-A of the Act would be maintainable is concerned, in view of the decision of this Court in Rajni Devi [Oriental Insurance Co. Ltd. v. Rajni Devi, (2008) 5 SCC 736 : (2008) 3 SCC (Cri) 67] , the aforesaid cannot be accepted. In Rajni Devi [Oriental Insurance Co. Ltd. v. Rajni Devi, (2008) 5 SCC 736 :
(2008) 3 SCC (Cri) 67] , it has been specifically observed and held that the provisions of Section 163-
A of the Act cannot be said to have any application with regard to an accident wherein the owner of the motor vehicle himself is involved. After considering the decisions of this Court in Oriental Insurance Co. Ltd. v. Jhuma Saha [Oriental Insurance Co. Ltd. v. Jhuma Saha, (2007) 9 SCC 263 : (2007) 3 SCC (Cri) 443] ;Dhanraj [Dhanraj v. New India Assurance Co. Ltd., (2004) 8 SCC 553 : 2005 SCC (Cri) 363] ;National Insurance Co. Ltd. v. Laxmi Narain Dhut [National Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 : (2007) 2 SCC (Cri) 142] and Premkumari v. Prahlad Dev [Premkumari v. Prahlad Dev, (2008) 3 SCC 193 : (2008) 1 SCC (Civ) 822 : (2008) 1 SCC (Cri) 694] , it is ultimately concluded by this Court that the liability under Section 163-A of the Act is on the owner of the vehicle as a person cannot be both, a claimant as also a recipient and, therefore, the heirs of the owner could not have maintained the claim in terms of Section 163-A of the Act. It is further observed that, for the said purpose, only the terms of the contract of insurance could be taken recourse to. In the recent decision of this Court in Ashalata Bhowmik [National Insurance Co. Ltd. v. Ashalata Bhowmik, (2018) 9 SCC 801 : (2018) 4 SCC (Civ) 595 : (2019) 1 SCC (Cri) 399] , it is specifically held by this Court that the parties shall be governed by the terms and conditions of the contract of insurance. Therefore, as per the contract of insurance, the insurance company shall be liable to pay the compensation to a third party and not to the owner, except to the extent of Rs 1 lakh as observed 9 THE HIGH COURT OF MADHYA PRADESH MA-1414-2021 The New India Assurance Company Limited Vs. Smt. Shikha Goyal and others hereinabove.
10. In view of the above and for the reasons stated above, the present appeal is partly allowed to the aforesaid extent and it is observed and held that the original claimants shall be entitled to a sum of Rs 1 lakh only with interest @ 7.5 per cent per annum from the date of the claim petition till realisation. In the facts and circumstance of the present case, there shall be no order as to costs.
10. If the facts of the present case are considered, then it is clear that the deceased was driving the vehicle owned by his own mother. In the light of the judgment passed by the Supreme Court in the cases of Ningamma (supra) and Ramkhiladi (supra), the claim under Section 163-A of the Motor Vehicles Act is not maintainable. However, the insurance company is liable to make payment of compensation as per the terms of the contract/insurance policy.
11. Shri B.N. Malhotra was directed to go through the insurance policy, Ex.D/1, to point out that it was agreed upon by the insured and the insurance company that the liability of the insurance company would be limited to Rs.2,00,000/- only.
12. After going through the insurance policy, Ex.D/1, it is submitted by Shri Malhotra that there is nothing in the insurance policy to indicate that the liability of the insurance company was limited to Rs.2,00,000/- only. However, it is submitted that Charan Singh (DW-2) has admitted that he has not filed the complete 10 THE HIGH COURT OF MADHYA PRADESH MA-1414-2021 The New India Assurance Company Limited Vs. Smt. Shikha Goyal and others condition of insurance policy. Accordingly, it is submitted by Shri B.N. Malhotra that the liability of the insurance company should be confined to Rs.2,00,000/- only.
13. Considered the submissions made by the counsel for the parties.
14. Udisputedly, the insurance policy is in possession of the appellant and if the appellant has chosen to file only a part of the insurance policy, then an adverse inference can be drawn that the remaining part of the insurance policy, which has been deliberately withheld by the appellant, was against his interest and claim. Even otherwise, the appellant cannot take advantage of his own wrong of not filing the complete conditions of the insurance policy. This Court has to decide the present appeal on the basis of the material placed on record by the respective parties and it is clear from the insurance policy, Ex.D/1, there is no such clause which limits the liability of the insurance company to the extent of Rs.2,00,000/- only. Since the insurance company had charged premium for compulsory PA cover for driver-owner and the deceased had borrowed the car from his mother and accordingly, he had stepped into the shoes of his mother/insurer/owner, therefore, it is held that the insurance company has been rightly held liable to pay the compensation amount jointly 11 THE HIGH COURT OF MADHYA PRADESH MA-1414-2021 The New India Assurance Company Limited Vs. Smt. Shikha Goyal and others and severally.
15. Consequently, it is held that no illegality could be pointed out by the counsel for the appellant.
16. Ex consequenti, the award dated 05.04.2021 passed by third Additional Motor Accident Claims Tribunal, Morena in Motor Accident Claim Case No.355/2017 is hereby affirmed and the appeal is dismissed. No order as to costs.
(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2021.09.02 18:31:21 +05'30'