Delhi District Court
Shri Pooran Lal Sharma vs Shri Karan Kumar on 27 September, 2014
IN THE COURT OF KIRAN BANSAL:
P.O. MOTOR ACCIDENTS CLAIMS TRIBUNAL
NORTHEAST DISTRICT: KKD COURTS : DELHI
MACT No. 221/08
Unique Case Identification No. 02402C0388832008
1. SHRI POORAN LAL SHARMA
S/o Sh. R. P. Sharma
2. MS. SUNITA
W/o Sh. Pooran Lal Sharma
Both R/o H. NO. 40, Khajuri Khas,
BlockC, Gali no. 14, Delhi 94.
....Petitioners
Versus
1. SHRI KARAN KUMAR
S/o Sh. Prem Kumar
R/o H. No. C195, Gali no. 1516, Khajuri Khas, Delhi 94.
2. TATA AIG General Insurance Co. Ltd.
R/o Lotus Tower1, Community Center,
Friends Colony, New Delhi. (Insurer)
....Respondents
Through :
Mr. R. S. Adil, Advocate for petitioner Mr. V. K. Gupta, Advocate for respondent.
1. Date of Institution of claim petition :29.05.2008
2. Date when the matter was fixed for orders :19.03.2014
3. Date of Decision :27.09.2014 MACT No.221/08 Ms. Kiran Bansal POMACT Page no.1 /10 APPLICATION U/S 166 & 140 M.V. ACT 1988 FOR GRANT OF COMPENSATION AWARD
1. The present claim petition U/s 163 A of M V Act is filed by LRs of deceased Sh. Abhishek Sharma, stating that on 12.04.2008 at about 7.55 a.m deceased alongwith his friend was going from his house towards his office on motorcycle bearing no. DL 13SA 5501 which was being driven by deceased.
When deceased reached at Khajuri Khas Chowk Red Light, then the deceased received fatal injury by the involvement of motorcycle bearing no. DL 13SA 5501 in a road side accident. Deceased was shifted to GTB Hospital and his MLC bearing no. B1415/08 was prepared. The police of PS Khajuri Khas registered a criminal case vide FIR No. 101/08. It is averred in the claim petition that death of deceased was caused on account of said accident.
2. Notice of the claim petition was issued to the respondents. Respondent no. 1 filed his Written Statement and stated that petitioner has no cause of action to file the present claim petition. It is further stated that vehicle is insured with respondent no. 2.
3. Respondent no. 2 i. e. TATA AIG General Insurance Co. Ltd. also filed WS and stated that deceased himself was driving the motorcycle at the time of accident and as such was not a third party qua the respondent.
4. After completion of the pleadings, following issues were framed :
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1. Whether deceased Abhishek Sharma expired in a motor accident involving motorcycle bearing no. DL 13SA 5501 being driven by the deceased himself, owned by respondent no. 1 and insured with respondent no. 2, on 12.04.2008 at 7.55 am at Khajoori Red light within the jurisdiction of PS Khajoori Khas, Delhi ? OPP
2. Whether petitioner is entitled for any compensation, if so, to what amount and from whom?
3. Relief
5. Petitioner has examined himself as PW 1 and Sh. Naresh Kumar examined as PW 2. Vide order dated 10.07.2013 petitioner's evidence was closed. No evidence led by respondents.
6. Ld. counsel for petitioner contended that since it is a case of Section 163A MV Act, therefore, negligence is not required to be proved in this case. ld. counsel for petitioner further contended that even if the accident was caused because of deceased's negligence, still, the petitioner cannot be deprived of fruits of this beneficial legislation, which has done away with the negligence. Ld. counsel for petitioner has relied upon the following judgments:
1. New India Assurance Co. Ltd. Vs. Sunil and another, 2007 ACJ 278
2. New India Assurance Co. Ltd. Vs. Tula Ram and others, 2004 ACJ 741
3.New India Assurance Co. Ltd. Vs. Rejeshwar Pandey and ors., III (2007) ACC 77.
4. New India Assurance Co. Ltd. Vs. Umesh Kumari and ors., II (2010) ACC
88.
5. New India Assurance Co. Ltd. Vs. Muna maya Basant and another, 2001 ACJ 940.
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6. New India Assurance Co. Ltd. Vs. Manishaben Mahendra @ Shanker Joshi, III (2008) ACC 359.
7. On the other hand, counsel for respondent no. 2/insurance company contended that accident was caused because of the negligence of the deceased and, therefore, the present petition is not maintainable. The second limb of the contention of counsel for respondent no. 2 is that the deceased was driving the vehicle himself, which belonged to respondent no. 1, therefore, the deceased is not the third party and hence, the petition filed by the petitioner is not maintainable.
8. Ld. Counsel for respondent no. 2 relied upon the following case laws:
1. United India Insurance Co. Ltd. vs Rajender Singh & Ors., (SC)2000(2) TAC.
2. HDFC Chubb General Insurance Company Ltd vs Shanti Devi Rajbal Singh Thakur and another, 2008 ACJ 1280.
3. Oriental Insurance Co. Ltd. vs. Rajni Devi and others, 2008 SCCL.Com 505(Supreme Court of India).
4. OIC VS Meena Varial and others, Civil Appeal no. 5825 of 2006.
5. Appaji & Anr. vs. M. Krishan and anr., MFA no. 5040 of 1998, Karnatka High Court.
6. Ningamma and another vs. United India Insurance Co. lTD., 2009 SCCL. Com 784.
7. National Insurance Co. Ltd. vs Brij Pal Singh and another, F.A.F.O. NO. 378 of 2002 (High Court of Allhabad).
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8. Deepal Girishbhai and others vs. United India Insurance Co. reported as 2004 ACJ 934.
9. United India Insurance Co. VS. Gian Chand and others, CA NO. 6081 of 1997(SC).
10. New India Assurance Co. Ltd. vs Manjit Kaur and ors., SLP @ NO. 176 of 2004 (SC).
11. Malla Prakasrao vs. Malla Janaki & Ors, (2004) 3 Supreme Courts Cases
343.
12. Bhuwan Singh vs. OIC, MANU/SC/0348/2009(SC).
9. My issue wise findings are as under: 10. ISSUE No. 1
11. The petitioner, father of deceased, deposed that deceased died in a road accident on 12.04.2008 and an FIR no. 221/08 was registered. He further deposed that postmortem of the deceased was conducted in the GTB Hospital. During cross examination he stated that Mr. Karan Kumar, respondent no. 1 was the friend of the deceased and he has no documentary proof to show that the deceased was employed with M/s ICICI Bank at Shri Parshvnath Enterprises or that he was not earning any amount as on the date of accident. It is further deposed the he is a labourer. It is further deposed that on the date of accident, Mr. Karan Kumar had come to his house and asked the deceased to go for his personal work. It is further deposed that Mr. Karan Kumar did not accompany the deceased when the deceased left the house. It is further MACT No.221/08 Ms. Kiran Bansal POMACT Page no.5 /10 deposed that he does not know about the personal work of Mr. Karan Kumar and on the date of accident Mr. Karan Kumar was residing in the same area. It is further deposed that he never visited the place of employment of the deceased and deceased was not employed with respondent no. 1.
12. I have gone through the material on record. The FIR, post mortem report, site plan and the testimony of petitioner taken together, clearly establish that the deceased sustained fatal injuries in the accident involving vehicle no. DL 13SA 5501. There is no evidence in rebuttal on this aspect. The only infrerence that can be drawn from the documents and testimony of the petitioner is that the deceased died in a road side accident involving abovesaid vehicle. Accordingly, issue no. 1 is decided in favour of the petitioner and against the respondents.
13. ISSUE No. 2
Whether petitioner is entitled for any compensation, if so, to what amount and from whom?
14. The perusal of the FIR shows that no other vehicle was involved in the accident and the FIR records that the motorcycle of the deceased was found in accidental condition on road and the deceased was admitted in hospital in accidental condition. Even the testimony of the PW 1 is not clear on this point as to whether the accident was caused by any other vehicle or how the accident took place. In the absence of any evidence, it cannot be said that it is a hit and run case.
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15. No evidence or document or record suggest anything about the accident.
16. So far as the mandate of Section 163A MV Act is concerned, it is clear that only a third party can maintain a petition under Section 163A of MV Act. In the matter in hand, the deceased was himself driving the vehicle and met with an accident. The deceased was driving the motorcycle which belonged to respondent no. 1. It is not the case of the petitioner that the deceased was employee of respondent no. 1 or that the motorcycle was hit by some other vehicle. In a third party insurance, the insurer and insured have contract between them and both are bound by terms and conditions of the contract. Generally, the insurer agrees to indemnify the losses, if any, suffered by the third party on accout of the use of the motor vehicle of the insured. It cannot be said that insured can claim compensation for injuries caused to him or his legal heirs can claim compensation for his death under the head of third party. There may be contract between the insurer and the insured with regard to the personal accident of the insured. In that eventuality, the insured can enforce claim against insurer for the damages or injury caused to him.
17. Ld. counsel for petitioner, in support of his case relied of number of judgments as referred above. In the matter titled New India Assurance Co. Ltd. Vs. Sunil and another", Hon'ble High Court held that the petitioner is entitled for compensation U/s 163A, even if he himself was negligent. In the matter titled ' National Insurance Co. Ltd. Vs. Tula Ram and others', Hon'ble High Court observed that claimants are not required to prove rash and negligent driving and the only requirement of law would be that there was accident arising out MACT No.221/08 Ms. Kiran Bansal POMACT Page no.7 /10 of use of motor vehicle, resulting into death or permanent disablement. In the matter titled 'New India Assurance Co. Ltd. Vs. Rejeshwar Pandey and ors.' Hon'ble Delhi High Court observed that 163A prescribes maximum limit and predetermined formula for calculation of compensation on the basis of no fault liability. In the matter titled 'New India Assurance Co. Ltd. Vs. Umesh Kumar and Ors.' Hon'ble High Court observed that the deceased, the son of the owner cannot be treated as third party and further held that the comprehensive policy covered the case8 of the claimant and therefore, insurance company would be liable to pay the compensation. In the matter titled 'New India Assurance Co. Ltd. Vs. Muna Maya Basant and another', Hon'ble High Court observed that section 163A begins with nonobstante clause which indicates that regardless of other provisions in the act about fault liability and the ambit of liability under Motor Vehicle Act is expanded covering nontortious liability also.
18. The judgments cited by the petitioner are not applicable in the facts and circumstances of the present case. In the matter titled 'New India Assurance Co. Ltd. vs. Manishaben Mahendra @ Shanker Joshi and Ors.' , Hon'ble High Court observed that language purport of provisions of section 163A clearly establish that owner and insurer of motor vehicle has to be held liable to pay compensation in case of death and permanent disability due to accident arising out of use of vehicle.
19. Although in "New India Assurance Co. Vs. Manishaben Mahendra @ Shanker Joshi and Ors." Hon'ble High Court awarded compensation to the Lrs of MACT No. 221/08 Ms. Kiran Bansal POMACT Page no. 8/10 deceased under similar circumstances, however, Hon'ble Supreme in Ningamma and another Vs. United India Insurance Company Ltd., reported as 2009 SCCL. Com 78, observed as under: 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 a liability to pay the same is on him. This proposition is absolutely clear on a reading of Section 163A. In the instant case, the deceased was not the owner of the vehicle, in question. He borrowed the said motorbike from its real owner. The deceased cannot be held to be employee of the owner of the motorbike although he was authorized to drive the vehicle by its owner, and therefore, he would step into the shoes of the owner of the motorbike. Accordingly, the legal representatives of the deceased who have stepped into the steps of the owner of the motor vehicle could not have claimed the compensation under Section 163A'
20. In Oriental Insurance Co. Ltd. Vs. Sharda G. and others, 2010 ACJ 977, hon'bl;e Karnataka High Court observed that the petition filed under Section 163A of MV Act by the legal heirs of the deceased who was driving the motorcycle and hit a road divider, sustained injuries and died, is not maintainable.
21. In HDFC Chubb General Insurance Company Limited Vs. Smt. Shanti Devi, Bombay High Court has observed that as the deceased driver of the motorcycle has borrowed the vehicle from the owner and has met with the accident, he cannot come within the definition of the third party.
22. In Oriental Insurance Co. Ltd.j Vs. Rajni Devi and others, hon'ble Supreme Court observed that liability under Section 163A MV Act is on the MACT No.221/08 Ms. Kiran Bansal POMACT Page no.9 /10 owner of the vehicle and as a person, he cannot be both the claimant as also the recipient and held that claim of the legal heirs of the deceased were not maintainable.
23. It has clearly emerged from judgment passed by Hon'ble Supreme Court in Ningamma and another Vs. United India Insurance Company Ltd. and other, judgments as referred above that the person borrowing vehicle from the owenr cannot be treated as third paty. Following the ratio as laid down in Ningamma judgment it is clear that the deceased was not the third party, therefore, the petition filed by the legal heirs of the deceased is not maintainable. Petition is therefore, dismissed. No order as to cost.
24. File be consigned to record room.
Pronounced in Open Court on (Kiran Bansal)
27.09.2014 P.O. MACT(NorthEast)
KKD Delhi
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