Madhya Pradesh High Court
Ashabai Tiwari vs Rajesh Bakshi on 1 February, 2018
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
1
M.A.No.450/2014 (Ashabai Tiwari Vs. Rajesh Bakshi and another)
Indore; Dated: 01/02/2018
Shri J.M.Poonegar, learned counsel for the appellant.
None for the respondent No.1 though served.
Shri Manoj Jain, learned counsel for the respondent
No.2/Insurance Company.
ORDER
This appeal under section 173(1) of the Motor Vehicles Act, 1988 by the claimant is directed against the award dated 01/08/2013 passed in Claim Case No.67/2012 by II Motor Accidents Claims Tribunal, Khargone absolving the insurance company from payment of liability.
2. The controversy involved in this appeal revolves around the issue as to whether the tribunal was justified absolving the insurance company from the liability of payment of compensation.
3. Facts relevant and necessary for disposal of this appeal are to the effect that the motorcycle bearing registration No.MP 10 MD 6677 is of the ownership of one Rajesh. The third party insurance policy was issued on 24/03/2010 (Exhibit D/1) by the respondent/insurance company wherein the basic premium of the vehicle Rs.300/- was paid and under the head of compulsory personal accident coverage (owner-driver) Rs.50/- was also paid, however, no premium was paid for borrower or any other person other than the owner as driver.
4. One Nima had borrowed the motorcycle from its original owner and while he was riding it on 27/03/2010 had met with an accident due to toppling of the vehicle on the road. He died on 30/03/2010. He was 36 years and a Government employee. His sole dependent, mother filed the claim case. The tribunal has awarded Rs.3,82,.229/- and fastened liability upon the owner/respondent No.1.
5. Learned counsel for the appellant/claimant taking exception to the impugned award contends that in the document, exhibit D/2, a HIGH COURT OF MADHYA PRADESH BENCH AT INDORE 2 M.A.No.450/2014 (Ashabai Tiwari Vs. Rajesh Bakshi and another) provision has been made as regards the coverage of liability of the driver other than the owner and, therefore, the insurance company is liable to pay the amount of compensation.
6. Per contra, learned counsel for the insurance company referring to paragraphs 4, 5 and 6 of the cross-examination of its witness, Jahnul Aabuddin (DW 2) and paragraphs 17 and 19 of the impugned award contends that ample evidence is on record to conclude that under the head personal accident coverage (PAC), only the owner-driver is registered and not other than the owner-driver. Hence, as the deceased had borrowed the vehicle from its registered original owner, the tribunal has not committed any error in absolving the insurance company. He further submits that the provision for coverage of driver other than the owner in the policy is subject to payment of additional premium. Admittedly, the owner paid premium under the head vehicle, Rs.300/- and under the head compulsory personal accident cover (Owner Driver) he had paid Rs.50/- for himself but not paid for optional personal accident coverage i.e., the driver other than the owner or borrower as is well evident from the policy document (exhibit D/1) proved by the aforesaid witness and taken note by the tribunal. Learned counsel relied upon the judgments of the Hon'ble Supreme Court in the cases of New India Assurance Company Ltd., Vs. Sadanand Mukhi and others 2009 (1) T.A.C. 425 (SC) & Ningamma and another Vs. United India Insurance Co. Ltd., 2009 ACJ 2020 & Punjab and Haryana High Court; Oriental Insurance Co., Ltd., 2015 ACJ 165 and Reliance General Insurance C. Ltd., Vs. Ranjit and another, 2016 ACJ 1050 to contend that the borrower of the vehicle from the registered owner not covered under the personal accident coverage, the insurance company is not liable to pay the compensation. Hence, no illegality is committed by the tribunal while absolving the insurance company.
7. Heard learned counsel for the parties.
8. The law laid down in the cases referred to above and upon HIGH COURT OF MADHYA PRADESH BENCH AT INDORE 3 M.A.No.450/2014 (Ashabai Tiwari Vs. Rajesh Bakshi and another) perusal of the impugned award and the evidence placed on record, particularly; the insurance policy (exhibits D/1 and D/3), this Court finds substantial force in the argument advanced by learned counsel for the respondent/insurance company. Admittedly, in the insurance policy, exhibit D/1, the third party risk is of the registered owner-driver and not the borrower or other than the owner.
9. In view of the above, the appeal is found to be devoid of merit and is hereby dismissed.
(Rohit Arya) Judge b/-
Digitally signed by M V R BALAJI SARMA