Gauhati High Court
United India Insurance Co. Ltd vs Musstt. Sakila Begum & 2 Ors on 31 August, 2017
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL
PRADESH)
MAC Appl. No. 88/2013
United India Insurance Co. Ltd.
...........Appellant
-Versus-
Musstt Sakila Begum & Ors.
..........Respondents
For the Appellant : Mr. S. Dutta, Sr. Advocate
For the Respondents : Mr. S. K. Goswami, Advocate
BEFORE
THE HON'BLE MR. JUSTICE MIR ALFAZ ALI
Date of hearing : 03.08.2017
Date of Judgment and order : 31.08.2017
JUDGMENT & ORDER
This statutory appeal under Section 173 of the Motor Vehicles Act, 1988 is filed by the United India Insurance Company Ltd. challenging the judgment and award made by the MACT, Kamrup No. 2 in MAC Case No. 2547/2006.
2. One Sintu Ali was travelling by riding motorcycle bearing registration No. AS-01/H/2871. Suddenly, he met with an accident and as a result, sustained injury and died. The parents of the deceased filed an application seeking compensation under Section 163-A of the MV Act. Learned Tribunal passed an award of Rs. 3,36,000/- with interest @ 9% from the date of filing the claim petition.
MAC Appl. 88 of 2013 Page 1 of 113. Aggrieved by the judgment and award, the Insurance Company has preferred this appeal.
4. I have heard Mr. S. Dutta, learned Sr. Counsel for the appellant and Mr. S. K. Goswami, learned counsel appearing on behalf of the claimant/respondents.
5. From the submission of the learned counsel for the Insurance Company and the grounds taken in the appeal, it appears that the Insurance Company has challenged the award basically on the following two grounds:
(i) The accident occurred due to fault of the deceased himself as no other vehicle was involved and therefore, the claimant is not entitled to compensation as there was no other tort feasor.
(ii) The deceased borrowed the motorcycle from its owner and thereby stepped into the shoes of the owner and therefore not entitled to claim compensation, inasmuch as, the deceased was not a third party and as per terms of the policy, the insurance company is not liable to pay compensation for the death or injury of the owner.
Point No. 1.
6. Learned Sr. Counsel Mr. S. Dutta, placing heavy reliance on a decision of the Bombay High Court in HDFC Chubb General Insurance Com pany Ltd. Vs. Shanti Devi Rajbal Singh Thakur reported in 2008 ACJ 1280 , submitted, that the accident having taken place due to negligence of the deceased himself, he cannot be considered as victim under Section 163-A and therefore, claimants are not entitled to compensation. I feel it unnecessary to burden the judgment by quoting the decision of the Shanti Devi R ajbal Singh (supra), as the said decision has already been rendered per in curium by subsequent decision of the Bombay High Court in First Appeal No. MAC App. 88/2013 Page 2 of 11 1022/2013 for being contrary to the law laid down by the Full Bench of the Apex Court in Deepal Girish Bhai Soni Vs. United India Insurance Co. Ltd . reported in (2004) 5 SCC 385 .
7. Section 163-A of the MV Act reads as under:
"163A. Special provisions as to payment of compensation on structured formula basis.--
(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
Explanation.--For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule."
8. It would appear from Sub-section (2) of Section 163A that in a claim petition under Section 163 A, the victim or claimants are not required to plead or establish that the death or permanent disablement in respect of which claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle concerned, or of any other person. Therefore to maintain a claim petition under Section 163A of MV Act, the claimant is neither required to plead nor establish any fault or negligence on the part of the owner or any other person.
MAC App. 88/2013 Page 3 of 119. The provision of Section 163A MV Act has been incorporated by Amendment of 1994 with the object of providing speedy relief to the victim of motor vehicle accident under the structured formula laid down in Second Schedule of the MV Act. Non-obstantive clause of Section 163A clearly indicates that the provision of Section 163A would override all other provisions of the Act, or any other law for that matter in force, and Section 163 A is a complete code by itself. A three Judges Bench of the Apex Court in Deepal Girish Bhai Soni Vs. United India Insurance Co. Ltd . reported in (2004) 5 SCC 385 analyzing the scheme of Section 163A of the MV Act held as under:
"We may notice that Section 167 of the Act provides that where death of, or bodily injury to, any person gives rise to claim of compensation under the Act and also under the Workmen's Compensation Act, 1923, he cannot claim compensation under both the Acts. The Motor Vehicles Act contains different expressions as, for example, "under the provision of the Act", "provisions of this Act", "under any other provisions of this Act" or "any other law or otherwise". In Section 163-A, the expression "notwithstanding anything contained in this Act or in any other law for the time being in force" has been used, which goes to show that the Parliament intended to insert a non- obstante clause of wide nature which would mean that the provisions of Section 163-A would apply despite the contrary provisions existing in the said Act or any other law for the time being in force. Section 163-A of the Act covers cases where even negligence is on the part of the victim. It is by way of an exception to Section 166 and the concept of social justice has been duly taken care of."
10. A Division Bench of this Court in United India Insurance Co. Ltd. Vs. H. Lalhm ingliana reported in 2006 (2) GLT 538 relying on the decision of the Apex Court in Deepal Girish Bhai (supra) held as under:
"( 35 ) In the face of the position of law, so clearly pronounced by the Apex Court in Deepal Girishbhai Soni (supra), there can be no escape from the conclusion that it is permissible even for a driver, whose own wrongful act, neglect or default might have formed the cause of the accident resulting into his own injuries, to maintain an application for compensation Section 163a. Considered thus, it is clear that in the present case, the MAC App. 88/2013 Page 4 of 11 application made under Section 163a of the Act could not have been rejected merely on the ground that it was the claimant, whose negligence, as a driver, had caused the said accident."
11. The Apex Court in United India Insurance Co. Ltd. Vs. Sunil K um ar reported in (2014) 1 SCC 680 dealing with the scheme of compensation under Section 163A on the principle of no fault liability held as under:
"13. We are, therefore, of the view that liability to make compensation under Section 163-A is on the principle of no fault and, therefore, the question as to who is at fault is immaterial and foreign to an enquiry under Section 163-A. Section 163-A does not make any provision for apportionment of the liability. If the owner of the vehicle or the insurance company is permitted to prove contributory negligence or default or wrongful act on the part of the victim or claimant, naturally it would defeat the very object and purpose of Section 163-A of the Act. Legislature never wanted the claimant to plead or establish negligence on the part of the owner or the driver. Once it is established that death or permanent disablement occurred during the course of the user of the vehicle and the vehicle is insured, the insurance company or the owner, as the case may be, shall be liable to pay the compensation, which is a statutory obligation."
12. What therefore follows from the above ratio is that Section 163A MV Act which has provided for compensation on the principle of no fault liability, is a complete code by itself and the legislature never intended the claimant to plead or prove negligence on the part of the owner or driver or any other person for maintaining a claim petition under Section 163A. The question of fault is totally irreverent in a claim under Section 163 A of the MV Act. Even if the accident takes place for the fault of the victim, then also compensation cannot be denied in a claim petition filed under Section 163 A of MV Act. Therefore, the claim of the claimants in the instant case cannot be rejected on the ground, that deceased himself was at fault. Accordingly, the point No. 1 is decided against the appellant.
MAC App. 88/2013 Page 5 of 11Point No. 2.
13. Mr. S. Dutta, learned Sr. Counsel for the Insurance Company placing reliance on the decision of the Apex Court in Dhanraj Vs. New India Assurance Co. Ltd . reported in (2004) 8 SCC 553 ; New India Assurance Co. Ltd. Vs. Sadanand M ukhi reported in (2009) 2 SCC 417 and Ningam m a Vs. United India Insurance Co. Ltd . reported in (2009) 13 SCC 710 submitted that the deceased in the instant case hired the motorcycle from its owner and thereby, he stepped into the shoes of the owner and owner of the vehicle cannot claim compensation from the insurer under the policy in the present case. Deceased not being a third party, the Insurance Company is not liable to indemnify the insured inasmuch, the liability under Section 163A of the MV Act is also primarily on the owner against any claim of a third party only, submits Mr. Dutta.
14. Before going into the details of the ratio laid down in the above authorities, it would be apposite to have a look on the facts of the present case.
15. The claimant stated in his pleadings and evidence that on 07.08.2005 his son, the deceased, was proceeding from Jalukbari towards Azara by riding motorcycle bearing registration No. AS-01/H/2871. Evidently, the deceased was not registered owner of the motorcycle, it was the respondent No. 1, Amit Hawalia, who was the registered owner of the vehicle. The claimants have nowhere stated, that the deceased hired the vehicle from the registered owner. The Insurance Company also nowhere stated in the written statement nor adduced any evidence, that the deceased hired the vehicle from the registered owner on the relevant date. The owner also in his written statement did not state that the deceased hired the vehicle, rather he sought to deny involvement of the vehicle itself, in the occurrence. Therefore, there was neither any pleading nor any evidence to show that the deceased hired the vehicle from the registered owner/ respondent No. 1. Whether the vehicle was hired by the deceased is a question of fact. Only because the deceased MAC App. 88/2013 Page 6 of 11 was riding the motorcycle at the relevant time, would not automatically raise a presumption that the deceased hired the vehicle. Let us take an example - if 'A' calls any of his well wisher or friend or anyone say 'B' and request him to go to a shop or a pharmacy to bring some medicine or any articles for him (A) and request 'B' to use his motorcycle. Can 'B', be said to have hired the vehicle of 'A'. Therefore, when insurance company raises the plea that deceased hired the vehicle and thereby became the owner, burden lies with the insurance company to establish such fact by adducing evidence.
16. The owner of the motor vehicle is defined in Section 2(30) of the MV Act 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"
17. A plain reading of the definition of owner in the MV Act would show, that the expression 'owner' of motor vehicle, does not necessarily mean the registered owner alone. When a vehicle is in actual possession of any person other than registered owner, by virtue of any agreement for lease or otherwise, such hirer in possession and control of the vehicle is also considered to be owner of the vehicle. The Apex Court in the case of R ajasthan State Road Transport Vs. K ailash Nath K othari reported in AIR 1997 SC 3444 observed that in respect of awarding compensation in reference to an accident by a vehicle hired with driver, the hirer at the time of actual possession and control of the vehicle would fall within the definition of the owner and would be vicariously be liable to pay compensation for tort committed by driver, though driver was the employee of the registered owner. What therefore, follows from the above ratio is that hirer of a vehicle under agreement of lease or otherwise shall also come within the definition of owner, when such hirer possess the vehicle with full control over it, and the real owner ceases to have any control over the vehicle. Thus, a hirer, to be MAC App. 88/2013 Page 7 of 11 considered as owner, by virtue of hiring a vehicle, the following conditions must be satisfied.
(i) The vehicle should be in actual possession and control of the hirer.
(ii) The registered owner must not have any control over the vehicle.
18. In Sadanand M ukhi (supra), the son of the registered owner while driving the motor cycle met with an accident and died and the claim petition was filed by the father of the deceased, who was owner and insured of the vehicle. The Apex Court declined to regard the son of the registered owner as third party and dealing with the question, as to whether insurer is liable to pay compensation in relation to accident arising out of the use of motor vehicle, which was being driven by son of the insured, the Apex Court held that insurance company was not liable.
19. In Ningam m a (supra), the Apex Court approving the earlier decision in Oriental Insurance Com pany Ltd. Vs. R ajani Devi reported in (2008) 5 SCC 736 observed, that Section 163A of the MV Act cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved. The decision further held that the question is no longer res-integra. The liability under Section 163A of the MV Act is on the owner of the vehicle, so a person cannot be both, a claimant and also a recipient, with respect of a claim. Therefore, the heirs of the deceased could not maintain a claim under Section 163A of the MV Act. The Apex Court in paragraphs 20 and 21 of the judgment held as under:
"20. It was held in oriental Insurance Co. Ltd. case that Section 163-A of the MVA cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved. The decision further held that the question is no longer res integra. The liability under section 163-A of the MVA is on the owner of the vehicle. So a person cannot be both, a claimant as also a recipient, with respect to claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163-A of the MVA.
MAC App. 88/2013 Page 8 of 1121. In our considered opinion, the ratio of the decision in Oriental Insurance Co. Ltd. case is clearly applicable to the facts of the present case. In the present case, the deceased was not the owner of the motorbike 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 authorised to drive the said vehicle by its owner, and therefore, he would step into the shoes of the owner of the motorbike. 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."
20. The fact of the case in Ningam m a (supra) was that on the fateful day, the deceased was travelling on the motorcycle, which he admittedly hired from its real owner, for going from Ilkal to his native place Gudur and therefore, specific case of the claimant in Ningam m a (supra) was that the deceased hired the vehicle for his own use. Whereas, in the present case there is no material to show that the deceased hired the vehicle from its owner. Thus, on factual matrix the decision of Ningam m a (supra) has no application in the present case.
21. Coming to the fact of the present case, the deceased though was riding the motorcycle, owned by respondent No. 1, there was no evidence or pleading to show that he hired the vehicle nor was there any evidence to show that he was in full control and possession of the vehicle in exclusion of the control of the owner of the vehicle. Therefore, on the facts and circumstances of the present case, the deceased, can by no stretch of imagination be held to be owner or hirer of the vehicle. This being the position, the decisions of the Apex Court in Ningam m a (supra) as well as Sadanand M ukhi (supra) or R ajani Devi (supra), is of no help to the appellant. At best, the deceased can be said to be a gratuitous driver of the registered owner. Since the deceased was evidently neither a registered owner nor he could be deemed to be owner as hirer of the vehicle, the claim MAC App. 88/2013 Page 9 of 11 of the claimants for the death of the deceased in the instant case cannot be rejected on the spacious argument that the deceased became the owner by stepping into the shoes of the real owner, in absence of any evidence to that effect.
22. Learned counsel for the Insurance Company submitted that the policy in the instant case was an Act Policy and therefore the insurance company is not liable to indemnify the insurer for any claim for death of the deceased in the instant case, who was not a third party as per Section 147 of the MV Act. Leaned counsel for the respondent Mr. S.K. Goswami, submits that the policy was not proved before the Tribunal and therefore, the insurance company cannot take the plea of policy at this stage. It is pertinent to mention here, that the policy was produced before the Tribunal by the owner as Annexure-I to his written statement, which is available on record. However, the same was not duly proved. Learned Sr. Counsel Mr. Dutta submitted that since the policy was before the Tribunal as part of the pleading, there was no difficulty in looking into it for arriving at a just decision, as nicety of the rules of evidence are not expected to be gone into in a claim proceeding under the MV Act. I have gone through the policy and it is found to be an Act Policy.
23. Law is now well settled that an Act Policy or Liability only policy of a two wheeler does not cover the risk of pillion rider or any gratuitous rider of the vehicle. Since the policy was an act policy and deceased was a gratuitous driver and not a third party, the insurance company cannot be held liable to indemnify the insured in the instant case. However, the owner having allowed the deceased to drive his vehicle as gratuitous driver, and death of the deceased was caused due to accident arising out of use of motor vehicle, in absence of package policy, compensation has to be paid by the owner in the present case.
24. I have gone through the policy, from which it transpires that the insured paid an extra premium of Rs. 50/- to cover the compulsory personal MAC App. 88/2013 Page 10 of 11 accident risk for owner-driver for an amount of Rs. 1,00,000/-. Under the head "person or class of person entitled to drive" in the policy, it has been clearly mentioned that any person including the insured provided the person driving, holds an effective driving license at the time of accident and is not disqualified from holding or obtaining such license is entitled to drive the vehicle. No evidence was brought on record to show that the deceased, who was driving the motorcycle in the instant case did not have any valid driving license. Therefore, the Insurance Company is certainly liable to pay Rs. 1,00,000/- to the legal heirs of the deceased as per the terms of contract of the policy, for the simple reason that the deceased was driving the vehicle and the personal accident coverage, for which extra premium was paid, included the risk of driver too. It is therefore held that the policy in the instant case being a statutory or liability only policy, the Insurance Company is not liable to indemnify the insured in respect of the award made by the Tribunal in favour of the legal representatives of the deceased in the instant case, who was not a third party. However, the Insurance Company by virtue of contract of policy is obliged to pay Rs. 1,00,000/- to the claimant.
25. In view of the foregoing discussions, it is directed that out of the awarded amount, Rs. 1,00,000/- shall be paid by the appellant Insurance Company as per the contract of the policy and the rest amount shall be paid by the owner of the vehicle. The owner and insurer are accordingly directed to satisfy the award as indicated above, within two months. Appeal stands partly allowed.
26. Send down the LCR.
JUDGE Mkk MAC App. 88/2013 Page 11 of 11