Gauhati High Court
United India Insurance Co. Ltd vs Anjali Kalita And Ors on 29 August, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
MACApp. 149 of 2012
UNITED INDIA INSURANCE CO. LTD. .....Appellant
-Versus-
ANJALI KALITA AND ORS. .....Respondents
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA Advocates for the Petitioners : Mrs. R.D. Mozumdar, Ms. R. Begum, : Mrs. S. Kumari.
Advocates for the Respondents : Mr. R. Dey, Mr. R. Islam, : Ms. N. Mitra, Mr. J. Singh.
Date of hearing and order : 29.08.2017.
JUDGMENT AND ORDER (Oral)
Heard Mrs. R.D. Mozumdar, learned counsel appearing for the appellant as well as Mr. R. Dey, learned counsel appearing for the respondents.
2. This is an appeal under Section 173 of the MV Act, 1988, against the judgment and award dated 18.06.2011, passed by the learned Member, M.A.C. Tribunal, Kamrup (M), Guwahati in MAC Case No. 45/2008.
3. The brief facts of the case is that on 15.01.2008, one Hitesh Kalita was proceeding from Guwahati to Nalbari driving a motorcycle bearing registration No. AS-01/T-0276 which met with an accident at Dadara. He sustained grievous injuries and died on the same day. Both the parents of the deceased, namely, Smt. Anjali Kalita and Sri Hari Chandra Kalita filed an claim petition under Section MACApp. 149/2012 Page 1 of 11 163A of the Motor Vehicles Act (MVA for short), praying for compensation of Rs.6 lakhs along with interest @ 9% from the date of the filing of the claim petition till award. The owner of the vehicle was the brother of the deceased, namely, Sri Jitu Kalita. At the time of the accident, the said motorcycle was covered by valid package policy insurance. The appellant contested the case by filing their written statement as well as additional written statement. Upon the pleadings of the parties the following issues have framed in the case:
(i) Whether the victim Hitesh Kalita died in the alleged accident dated 15.01.2008, arising out of use of the motor vehicle No. AS 01/T-
0276?
(ii) Whether the present claim petition by the legal representatives of the deceased, Hitesh Kalita, against the insurance co. is maintainable?
(iii) Whether the claimants are entitled for compensation as claimed for? so, from whom it may be recoverable and to what extent?
4. While the owner of the vehicle did not contest the case, the claimant's side examined the claimant No. 1, Smt. Anjali Kalita as PW.1 and the respondent's side examined one Sri Rabin Kr. Das, working as Senior Assistant in the appellant's company as DW.1. The claimant witness No. 1 in course of her cross-examination by the appellant admitted that her elder son, the O.P. No. 1 therein was the owner of the offending vehicle. DW.1 also deposed that the deceased was the brother of the insured and that as per the policy, risk of the death of the deceased was not covered. While the claimant witness No. 1 exhibited accident information report (Exbt.1), certified copy of the post mortem report (Exbt.2), income certificate (Exbt.3) and driving licence (Exbt.4), the DW.1 proved the copy of the insurance policy (Exbt.A). The learned trial court after appreciating the evidence on record answered the issue No. 1 in the affirmative by holding that the deceased had died in an accident involving the motorcycle registration No. AS-01/T-0276.
MACApp. 149/2012 Page 2 of 115. As regards issue No. 2, the learned Tribunal after discussing referred to the case of (i) Oriental Insurance Co. Vs. Rajni Devi (2008) 5 SCC 736, (ii) Ningamma and another Vs. United India Insurance Co. Ltd. 2009 ACJ 2020 (SC),
(iii) Rajasthan State Transport Corporation Vs. Kailashnath Kuthari, AIR 1997 SC 3444 and (iv) United India Insurance Co. Ltd. Vs. H. Lahmingliana, 2006 (2) GLT 538, held that there was there was no pleadings or evidence regarding violation of any condition of the policy, for enabling the insurer from escaping the liability under the policy, and by further holding that the case of Rajni Devi (supra) and Ningamma (supra) has no application in the case and held that the claim petition filed by the legal representatives of the deceased was maintainable and the issue No. 2 was decided in favour of the claimants/respondents No. 1 and 2.
6. As regards issue No. 3, the learned Tribunal by referring to the provisions of Section 163A of the MV Act, accepted the age of the deceased as 24 years old and the monthly income of the deceased was accepted as Rs.3,000/- after considering his salary slip (Exbt.3) and after deducting one third amount on account of personal expenses of the deceased, his loss of dependency came to Rs.24,000/-. By adding the award of the funeral expenses at Rs. 2,000/-, the total compensation was assessed at Rs.24,000/- X 17 X Rs.2000/- = Rs.4,10,000/-. The appellant was directed to satisfy the award together with 6% interest from the date of filing of the claim petition i.e. 18.01.2008 till payment.
7. While admitting this appeal as a pre-condition for grant of stay, this Court directed the appellant to deposit a sum of Rs.1 lakh by order dated 31.07.2012, passed in MC 2075/2012. The said amount was ordered to be released to the respondents herein by order dated 26.02.2013, passed in MC 2740/2012.
8. The learned counsel for the appellant submits that the deceased in the present case was the brother of the owner of the vehicle. It is submitted that being the brother of the deceased, the respondent No. 3, who is the owner of MACApp. 149/2012 Page 3 of 11 the vehicle also become one of the legal representatives of the deceased. Therefore, although the liability to pay compensation under Section 163A of the MV Act lies on the owner, but in the present case in hand, the respondent No. 3 becomes both the prayer of compensation on one hand and the recipient on the other hand as the LRs of the deceased. It is submitted that the offending vehicle being a motorcycle, could not have been run by the deceased on hire. Moreover, it is not the case of the owner of the vehicle that his deceased brother had stolen the vehicle or driving it unauthrorizedly. As such, it has to be presumed that the deceased was authorizedly driving the vehicle and therefore, stepped into the shoes of the real owner. It is submitted that the owner who has the liability to pay compensation cannot be the beneficiary at the same time and therefore, the learned counsel for the appellant submits that the impugned judgment is liable to be set aside. It is further submitted that as per the condition of policy, the premium payable for the risk of the owner/driver was Rs.50/- and the maximum liability of the insurer was at the cap of Rs.1 lakh. Therefore, in any event the liability being contractual in nature and the insured being bound by the said insurance policy package, can only claim reimbursement of a maximum sum of Rs.1 lakh and the balance liability, if there be any can only from the respondent No. 3/owner of the vehicle under whom the liability was imposed under the provisions of Section 163A of MV Act.
9. In order to press her point, the learned counsel for the appellant has relied on the following cases: (i) New India Assurance Co. Ltd. Vs. Prabha Devi and Ors., (2013) 14 SCC 719, (ii) Ningamma and another Vs. United India Insurance Co. Ltd., (2009) 13 SCC 710: (2009) ACJ 2020, (iii) New Indian Assurance Co. Ltd. Vs. Sadanand Mukhi and Ors., (2009) 2 SCC 417: (2009) ACJ 998, (iv) Oriental Insurance Co. Vs. Rajni Devi & Ors., (2008) 5 SCC 736, (v) Dhanraj Vs. New India Assurance Co. Ltd. and another, AIR 2004 SC 4767.
10. It is submitted by the learned counsel for the appellant that as per the policy condition in the present case, the maximum liability which the appellant MACApp. 149/2012 Page 4 of 11 can be saddled is only Rs. 1 lakh. The same amount has already been deposited and withdrawn by the respondents No. 1 and 2. Therefore, the impugned judgment and order is liable to be set aside and modified by capping the liability at an amount of Rs.1 lakh in view of the provisions of Section 163A where the driver is not required to go into the issue as to whether the deceased was at fault or not when the vehicle met with an accident.
11. Per-contra, Mr. R. Dey, learned counsel appearing for the respondent has argued in support of the impugned judgment and award. It is submitted that the learned Tribunal had correctly given its reasoning by holding that the case of Rajni Devi & Ors. (supra) and Ningamma and another (supra) was not attracted in the present case in hand. It is submitted that notwithstanding that the deceased was driving the vehicle, the overall control of the vehicle remained with the respondent No. 3 and therefore, it was correctly held that by no stretch of imagination, the deceased could have been termed to be the owner of the offending vehicle. It is submitted that as the deceased victim was not the owner of the vehicle, he was squarely covered by the meaning of third party and therefore, the claimant/respondent No. 1 and 2 cannot be denied the benefit of receiving compensation on the death of their son who was only 24 years old at the time of the death. It is also submitted that in view of his argument on the point, none of the cases cited by the learned counsel for the appellant has any relevance to the facts of the present case in hand and therefore, the appeal be dismissed by maintaining the judgment and award passed by the learned Tribunal.
12. Having considered the rival arguments made by the learned counsel for both sides and on perusal of the materials available on record, this Court deems it relevant to refer to a few paragraphs of the judgment cited by the learned counsel for the appellant:
(i) Prabha Devi and Ors. (supra):
MACApp. 149/2012 Page 5 of 11"8. We have perused the judgment of this Court in the case of Dhanraj Supra. In that case, the appellant who was the insurer was travelling in the insured vehicle, which met with an accident. In the accident, the appellant as well as the other passengers received injuries. A number of claim petitions came to be filed. The appellant who was the insurer also filed a claim petition. The MACT held the driver of the Jeep responsible for the accident. In all the claim petitions filed by the other passengers, MACT directed that the appellant (the owner) as well as the driver and the Insurance Company were liable to pay compensation. Furthermore, in the claim petition filed by the appellant, the MACT directed the driver and the Insurance Company to pay compensation to the appellant. The aforesaid finding of the MACT was upheld by the High Court in the appeal filed by the Insurance Company. The Insurance Company was, in appeal before this Court challenging the judgment of the High Court awarding compensation to the owner of the insured vehicle. Taking into consideration the provision contained in Section 147 of the Act, this Court observed as follows :-
"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 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. 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 of Oriental Insurance Co. Ltd. versus 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", 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."
9. In view of the aforesaid ratio of law, the claim made by the respondents could not have been allowed. Consequently, Civil Appeal No. 479 of 2007 is allowed. The impugned Award as well as the impugned judgment of the High Court are set aside."
MACApp. 149/2012 Page 6 of 11(ii) Ningamma and another (supra):
"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 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.
20. When we apply the said principle into the facts of the present case we are of the view that the claimants were not entitled to claim compensation under Section 163-A of the MVA and to that extent the High Court was justified in coming to the conclusion that the said provision is not applicable to the facts and circumstances of the present case. However, the question remains as to whether an application for demand of compensation could have been made by the legal representatives of the deceased as provided in Section 166 of the MVA. The said provision specifically provides that an application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made by the person who has sustained the injury; or by the owner of the property; or where death has resulted from the accident, by all or any of the legal representatives of the deceased; or by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be When an application of the aforesaid nature claiming compensation under the provisions of Section 166 is received, the Tribunal is required to hold an enquiry into the claim and then proceed to make an award which, however, would be subject to the provisions of Section 162, by determining the amount of compensation, which is found to be just. Person or persons who made claim for compensation would thereafter be paid such amount. When such a claim is made by the legal representatives of the deceased, it has to be proved that the deceased was not himself responsible for the accident by his rash and negligent driving. It would also be necessary to prove that the deceased would be covered under the policy so as to make the insurance company liable to make the payment to the heirs."
(iii) Sadanand Mukhi and Ors. (supra):
MACApp. 149/2012 Page 7 of 11"3. The admitted fact of the matter is as under :-
First respondent was owner of a motor cycle. He got the said vehicle insured with the appellant company; the policy being valid for the period 9.9.1999 and 8.9.2000. On 8th September, 2000 Tasu Mukhi, son of the insured, while driving the motor cycle met with an accident and died. The accident allegedly took place as a stray dog came in front of the vehicle. A First Information Report was also lodged. Respondents herein filed a claim petition. Amongst them, first respondent, who is the owner of the insured vehicle, was the applicant.
15. Contract of insurance of a motor vehicle is governed by the provisions of the Insurance Act. The terms of the policy as also the quantum of the premium payable for insuring the vehicle in question depends not only upon the carrying capacity of the vehicle but also on the purpose for which the same was being used and the extent of the risk covered thereby. By taking an `act policy', the owner of a vehicle fulfils his statutory obligation as contained in Section 147 of the Act. The liability of the insurer is either statutory or contractual. If it is contractual its liability extends to the risk covered by the policy of insurance. If additional risks are sought to be covered, additional premium has to be paid. If the contention of the learned counsel is to be accepted, then to a large extent, the provisions of the Insurance Act become otiose. By reason of such an interpretation the insurer would be liable to cover risk of not only a third party but also others who would not otherwise come within the purview thereof. It is one thing to say that the life is uncertain and the same is required to be covered, but it is another thing to say that we must read a statute so as to grant relief to a person not contemplated by the Act. It is not for the court, unless a statute is found to be unconstitutional, to consider the rationality thereof. Even otherwise the provisions of the Act read with the provisions of the Insurance Act appear to be wholly rational.
16. Only because driving of a motor vehicle may cause accident involving loss of life and property not only of a third party but also the owner of the vehicle and the insured vehicle itself, different provisions have been made in the Insurance Act as also the Act laying down different types of insurance policies. The amount of premium required to be paid for each of the policy is governed by the Insurance Act. A statutory regulatory authority fixes the norms and the guidelines.
The said principle was reiterated in United India Insurance Co. Ltd. v. Davinder Singh, [ (2007) 8 SCC 698 ] holding :-
"10. It is, thus, axiomatic that whereas an insurance company may be held to be liable to indemnify the owner for the purpose of meeting the object and purport of the provisions of the MACApp. 149/2012 Page 8 of 11 Motor Vehicles Act, the same may not be necessary in a case where an insurance company may refuse to compensate the owner of the vehicle towards his own loss. A distinction must be borne in mind as regards the statutory liability of the insurer vis-`-vis the purport and object sought to be achieved by a beneficent legislation before a forum constituted under the Motor Vehicles Act and enforcement of a contract qua contract before a Consumer Forum."
(iv) Rajni Devi & Ors. (supra):
"7. It is now a well settled principle of law that in a case where third party is involved, the liability of the insurance company would be unlimited. Where, however, compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the insurance company would depend upon the terms thereof. The Tribunal, in our opinion, therefore, was not correct in taking the view that while determining the amount of compensation, the only factor which would be relevant would be merely the use of the motor vehicle.
11. 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 receipient. The heirs of Janakraj could not have maintained a claim in terms of Section 163-A of the Act. For the said purpose only the terms of the contract of insurance could be taken recourse to."
(v) Dhanraj (supra):
"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 of Oriental Insurance Co. Ltd. Vs. 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."
13. In the present case in hand, it is seen that learned Tribunal had highlighted the relevant finding of the case of Ningamma and another (supra) in MACApp. 149/2012 Page 9 of 11 paragraph 9 of the judgment. But interpreted the said ratio to hold that the there was nothing to show that he deceased has bound the vehicle at the relevant time and the actual owner and therefore, did not apply the ratio of the case of Ningamma and another (supra), the said finding, in the opinion of this Court is not sustainable, firstly because it was never the case of the respondent No. 3, who is the owner of the vehicle that his deceased brother was unauthorizedly driving the vehicle. When the respondent No. 3 did not contest the claim petition, it was not open for the learned Tribunal to take a hypothetical view that the driver cannot be said to borrow the vehicle. If the victim/deceased did not borrow the vehicle, he would be unauthorized driver and would not be entitled to any compensation from the appellant. The aforesaid opinion of this Court is tested in a different way by taking an example that if a thief while stealing and driving away a vehicle, he meets with an accident, whether the such an unauthorized driver who was illegally stealing the vehicle can maintain a claim for compensation from the insurer. The answer would obviously be no because the unauthorized driver cannot fall to the category of driving the vehicle authorizedly within policy condition of the package policy for a motorcycle, where premium is paid only for the compulsory personal accident to the owner/driver. The policy contains that clause for limitation as to use which does not cover the case where the victim who was unauthorizedly driving the motorcycle can claim coverage of a valid insurance policy in favour of the owner of the vehicle. Therefore, by following the case of Ningamma and another (supra), this Court has no hesitation to hold that the deceased, who was driving the motorcycle at the relevant time stepped into the shoes of the owner and the legal representatives of the deceased, one of whom is also the owner of the vehicle, could not have claimed compensation under Section 163A of the MV Act. In the case of Sadanand Mukhi (supra), the son of the insured was driving the vehicle and the Hon'ble Apex Court had in clear terms held that it had no hesitation to hold that the insurance company was not liable and therefore, the appeal was allowed.
MACApp. 149/2012 Page 10 of 1114. In view of the policy condition that the maximum personal accident coverage of the owner driver is Rs.1 lakh, this Court is inclined to partially allow this appeal. The impugned judgment and order dated 18.06.2011, passed by the learned Member, M.A.C. Tribunal, Kamrup, Guwahati in MAC Case No. 45/2008 is set aside and modified by holding that the appellant is liable to pay compensation to the respondents No. 1 and 2 of the death of their son holding the appellant liable to pay compulsory personal accident coverage of Rs.1 lakh for the deceased who had stepped into the shoes of the owner in terms of the package policy for motorcycle bearing registration No. AS-01/T-0276. The said having already been deposited by the appellant and released to the respondent No. 1 and 2, there is no further liability on the appellant.
15. The appeal stands partially allowed to the extent as indicated above. There shall be no order as to cost.
16. Let the LCR be returned forthwith.
17. At this stage, the learned counsel for the appellant submits that apart from the amount of Rs.1 lakh deposited before this Court, the appellant has also made statutory deposit before this Court as a pre-condition for filing this appeal.
18. Accordingly, the said statutory deposit may be refunded back to the appellant.
JUDGE Mkumar MACApp. 149/2012 Page 11 of 11