Punjab-Haryana High Court
Bajaj Allianz General Insurance ... vs Jasmer Singh And Anr on 17 September, 2014
FAO-3493-2012 (O&M) -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
FAO-3493-2012
Date of decision: 17.9.2014
Bajaj Allianz General Insurance Company Limited
..... Appellant
Versus
Jasmer Singh and another
..... Respondents
CORAM: HON'BLE MR. JUSTICE R.P. NAGRATH
1. Whether Reports of the local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the digest?
PRESENT: Mr. Nitin Mittal, Advocate for the appellant.
Mr. Jaideep Verma, Advocate for the respondents.
R.P. NAGRATH, J.
The appellant-Insurance Company has filed the instant appeal against the Award dated 24.12.2011, passed by the Motor Accident Claims Tribunal, SAS Nagar Mohali (for short 'the Tribunal) granting compensation to the tune of ` 65,000/- for the injuries suffered by claimant-respondent No. 1 Jasmer Singh in a road accident, along with interest @ 8% per annum from the date of filing the claim petition till realization. The claim petition was filed under Section 163-A of the Motor Vehicles Act (hereinafter referred to as 'the Act').
2. Respondent No. 1-Jasmer Singh borrowed Hero Majestic RISHU KATARIA 2014.10.14 17:22 I attest to the accuracy and authenticity of this document FAO-3493-2012 (O&M) -2- Moped No. PB-65-E-3077 from respondent No. 2-Bhajan Singh the registered owner for going to village Gharuan on 26.3.2007. When he crossed village Mampur at about 9.30 a.m. the moped was hit by a truck as a result whereof, he had fallen on the road and suffered multiple grievous injuries. The claimant-respondent No. 1 was taken to the Civil Hospital, Kharar from where he was referred to Cheema Hospital, Moahli. Respondent No. 1 remained admitted in Cheema Hospital, Mohali for about 15 days. The claimant-respondent No. 1 was 57 years old and earning ` 3300/- per month. An amount of ` 2 lacs was spent on his treatment and prayer was made for award of ` 10 lacs as compensation.
3. Respondent No. 2 in the written reply stated that he handed over his moped to claimant-respondent No. 1 after verifying his driving licence.
4. The appellant-Insurance Company basically contested the claim petition on the ground that the petition under Section 163-A of the Act was not maintainable as the claimant was not a third party. The injured himself being rider stepped into the shoes of owner of the vehicle and, therefore, the Insurance Company cannot be held liable.
5. Learned Tribunal framed following issues from the above pleadings of the parties:-
"1. Whether injures Jasmer Singh received injuries out of the use of vehicle Hero Majestic bearing registration No. PB65-E-3077? OPP
2. Whether the injured/claimant is entitled to RISHU KATARIA 2014.10.14 17:22 I attest to the accuracy and authenticity of this document FAO-3493-2012 (O&M) -3- receive compensation, if so, to what extent and from whom? OPP
3. Whether the claim petition is not maintainable under Section 163-A of the Motor Vehicle Act? OPR
4. Whether the claimant was not holding a valid and effective driving licence, at the time of accident, if so, its effect? OPR
5. relief."
6. The claimant-respondent No. 1 led evidence and Insurance Company tendered policy of insurance Ex. R-1.
7. I have heard learned counsel for the parties and perused the Award passed by the Tribunal and the records.
8. On issue No. 1 the claimant himself appeared in the witness box as PW-1 and tendered his affidavit Ex. PW-1/A. The other witness to support the manner in which the accident took place is PW-2-Mohan Singh, an eye-witness whose affidavit is Ex. PW-2/A.
9. Ex. P-13 is the copy of DDR dated 27.3.2007 recorded in Police Station Gharuan, on the statement of claimant-respondent No. 1. The police party headed by SI Bikram Singh reached Cheema Hospital on 27.3.2007 and recorded the statement of the claimant. It was recorded that the moped was hit by another vehicle resulting into the accident. The learned Tribunal held on analysis of the evidence produced that the claimant-respondent No. 1 suffered injuries by the use of moped in question. This finding of the Tribunal has not been assailed during RISHU KATARIA 2014.10.14 17:22 I attest to the accuracy and authenticity of this document FAO-3493-2012 (O&M) -4- arguments by learned appellant's counsel and the same is affirmed.
10. On issue No. 4, the claimant tendered his driving licence Ex. P-19 issued by the Licensing Authority initially for the period from 30.10.1992 to 29.10.1997 and valid for driving scooter/motorcycle only. This licence was renewed from time to time and the renewal of licence is also recorded from 10.4.2002 to 8.4.2007 covering the date of accident. It is not the version of Insurance Company that the licence was fake. The finding of the Tribunal on issue No. 4 returned in favour of respondent No. 1 is also upheld.
11. The policy of insurance Ex. R-1 in the instant case is two wheeler package policy and premium of ` 50/- was paid by the insured to cover Personal Accident (PA) claim for owner-driver. The bone of contention of learned counsel for the appellant was that the claim-petition was not maintainable under Section 163-A of the Act. The learned counsel referred to the judgment of a co-ordinate Bench of this Court in FAO No. 4689 of 2007 (Bajaj Allianz General Insurance Company Ltd. Vs. Baljinder Singh), decided on 13.9.2010 in which there were similar terms and conditions in the policy of Insurance. It was held that if the policy merely provided for a personal accident cover for owner/driver, a person who borrows such a vehicle cannot obtain any right of action against the insurer. The indemnity to a driver, which the terms of the policy contemplates is to provide a cover for his act that results in death or injury to any third party. A driver of a vehicle, who is involved in the accident is not to be treated as third party and, therefore, it was held that the claimant is not entitled to make such a successful claim against the RISHU KATARIA 2014.10.14 17:22 I attest to the accuracy and authenticity of this document FAO-3493-2012 (O&M) -5- insurer of the vehicle, which he was driving.
12. This was again the view of the same Bench in FAO No. 3596 of 2011, (Bajaj Allianz General Insurance Company Limited Vs. Vikrant son of Jasbir Singh and another) decided on 9.1.2014 that the term of the policy is, "the owner-driver is the insured named in the policy." The liability cannot be fastened on the insurance company for a claim at the instance of a borrower of a vehicle and personal accident cannot be understood as extending the liability for a person who was the insured. This Court, however, allowed the compensation to the tune of ` 25,000/- for permanent disability in terms of Section 140 of the Act.
13. Same Bench of this Court in FAO No. 2979 of 2010, Bajaj Allianz General Insurance Company Ltd. Vs. Pardeep Kumar decided on 14.2.2011 taking a similar view, awarded the compensation to the tune of ` 25,000/- in terms of Section 140 of the Act. Even in Sushila and others Vs. Pankaj Mahajan and another, 2014 ACJ 935, decided by this Court on 10.12.2012, the deceased had borrowed a motorcycle from the owner. Adopting the same view, this Court held that reference to the term owner-driver must be understood as the owner, who is capable of driving and who is driving the vehicle at the relevant time. It cannot be understood as the owner/driver (owner or driver). It was further observed that it is evident from regulations that require owner-driver to be duly licensed to drive the vehicle. The optional cover could include unnamed passenger in a private vehicle also. This Court, however, awarded an amount of ` 50,000/- to the claimants under 'no fault liability'.
14. This Court, however, had the occasion to deal with exactly a RISHU KATARIA 2014.10.14 17:22 I attest to the accuracy and authenticity of this document FAO-3493-2012 (O&M) -6- similar question in New India Assurance Company Ltd. Vs. Umesh Kumari and others, 2010 (1) RCR (Civil) 669. The deceased in that case was the son of the owner-insured and claim petition was preferred under Section 163-A of the Act. The Insurance Company contended that it had no liability as the deceased was not a third party. In support of the contention reliance was placed by the Insurance company to various judgment i.e. (i) Dhanraj Vs. New India Assurance Co. Ltd., 2004 (4) RCR (Civil) 786, (ii) Ningamma and another Vs. United India Insurance Co. Ltd., 2009 (13) SCC 410, and (iii) New India Assurance Co. Ltd. Vs. Sadanand Mukhi and others, 2009 ACJ 998 (SC). It was, however, found as a matter of fact that the insurance policy was a comprehensive policy and the insured had paid premium for personal accident (PA) for own-cum-driver.
15. In Umesh Kumari's case (supra) this Court referred to para 21 of the judgment of the Apex Court in Ningamma's case (supra) in which it was observed that Section 147 of the Act provides that the policy of insurance could also cover cases against any liability which may be incurred by the insurer in respect of death or fatal injury to any person including owner of the vehicle or his authorized representative carried in the vehicle or arising out of the use of vehicle in public place. It was held by this Court in Umesh Kumari's case (supra) as under:-
"7. In the present case, admittedly, the premium towards compulsory PA to owner cum driver was paid and therefore, in view of the aforesaid observations of the Hon'ble Supreme Court of India as referred to RISHU KATARIA 2014.10.14 17:22 I attest to the accuracy and authenticity of this document FAO-3493-2012 (O&M) -7- above, the insurance company was liable to make the payment of compensation.
8. Faced with this situation, learned counsel for the appellant has argued that the terms and conditions of the policy makes it clear that if owner is driving the vehicle, in that case only, the aforesaid clause will come into play and the insurance company would be liable to pay. Since in the present case, the owner himself was not driving the vehicle, even if the premium has been paid covering the risk of owner- cum-driver, the same would not be applicable.
9. The argument of the learned counsel for the appellant is without any merit.
10. In this regard, the aforesaid phrase would obviously mean to cover owner or driver of the vehicle. Moreover, it is the case of the appellant itself that Pawan Kumar deceased cannot be treated as a third party being son of the owner and he has to be termed as owner itself as he has stepped into the shoes of the owner by borrowing the vehicle with permission of the owner. If that is so, Pawan Kumar deceased has to be treated as owner of the vehicle and in that eventuality, the aforesaid clause of comprehensive policy would cover the claim of the claimant and on the basis of the aforesaid clause of the policy, the RISHU KATARIA 2014.10.14 17:22 I attest to the accuracy and authenticity of this document FAO-3493-2012 (O&M) -8- appellant is liable to pay compensation."
16. In another case FAO-6405-2011 (The Oriental Insurance Company Limited Vs. Monika and others), decided on 12.12.2011 this Court again had the occasion to deal with a similar petition filed under Section 163-A of the Act against the Award to the Tribunal granting ` 4,84,700/- as compensation. The claimants were the dependents of Jai Bhagwan deceased. Jai Bhagwan was driving the motor vehicle involved in the accident after borrowing the same from the owner. That case also related to package Insurance Policy where the claim of the driver was covered. It was held by this Court as under:-
"Coming to the other aspect, where the liability is sought to be disowned by the insurance company, the ratio of another decision in National Insurance Company Limited Vs. Sinitha & Others 2011 STPL (Web) 1005 SC may be relied upon, wherein Hon'ble Supreme Court has held as under:-
"19. To substantiate his second contention, it would be essential for the petitioner to establish, that Shijo having occupied the shoes of the owner, cannot be treated as the third party. Only factual details brought on record through reliable evidence, can discharge the aforesaid onus. During the course of hearing, despite our queries, learned counsel for the petitioner could not point out the relationship RISHU KATARIA 2014.10.14 17:22 I attest to the accuracy and authenticity of this document FAO-3493-2012 (O&M) -9- between Shijo and the owner of the motorcycle involved in the accident. Shijo is not shown to be the employee of the owner. He was not even shown as the representative of the owner. In order to establish the relationship between the Shijo and the owner, the petitioner- Insurance Company could have easily produced either the owner himself as a witness, or even the claimants themselves as witnesses. These, or other witnesses, who could have brought out the relationship between the owner and Shijo, were not produced by the petitioner herein, before the Tribunal. The petitioner has, therefore, not discharged the onus which rested on its shoulders. Since the relationship between the Shijo and the owner has not been established, nor the capacity in which he was riding the vehicle has been brought out, it is not possible for us to conclude, that Shijo while riding the motorcycle on the fateful day, was an agent, employee or representative of the owner. It was open to the petitioner to defeat the claim for compensation raised by the respondents by establishing, that the rider Shijo represented the owner, and as such, was not a third party, in RISHU KATARIA 2014.10.14 17:22 I attest to the accuracy and authenticity of this document FAO-3493-2012 (O&M) -10- terms of the judgment rendered by this Court in Oriental Insurance Company Limited case (supra). The petitioner failed to discharge the said onus. In view of the above, it is not possible for us to accede to the second contention advanced at the hands of the learned counsel for the petitioner."
There is nothing on the record to prove the relationship between Jai Bhagwan and Mohinder Pal Kohli. In the absence of evidence as to the relationship between the two, it cannot be held that Jai Bhagwan was either an agent or representative of the owner or even a borrower of the vehicle.
Therefore, the decision in Ningamma and Sadanand Mukhi's cases (supra) would have no application to the facts of this case. Rather, the decision in Sinitha's case (supra) would help the claimants in proving that Jai Bhagwan had been a 3rd party and as the insurance policy in this case is a package policy and there is no term excluding a driver like Jai Bhagwan from cover of the insurance, he will be covered by the insurance policy."
17. Learned counsel for the appellant-Insurance Company has tried to substantiate his contention on the basis of terms contained in Section III of the Policy of Insurance Ex. R-1 dealing with personal RISHU KATARIA 2014.10.14 17:22 I attest to the accuracy and authenticity of this document FAO-3493-2012 (O&M) -11- accident cover. It says that this cover is subject to (a) the owner-driver is the registered owner of the vehicle insured herein; (b) The owner driver is the insured named in this policy; and (c) the owner-driver holds and effective driving licence, in accordance with the provisions of Rule 3 of the Central Motor Vehicles Rules, 1989, at the time of accident.
18. The above clause in the policy of insurance is to be interpreted liberally and more particularly keeping in view the main terms of the policy, to cover personal accident. The first page of the policy of insurance Ex. R-1 contains the amount of premiums for the liability. An amount of ` 135/- is the premium for the basic third party liability and ` 50/- was towards personal accident cover for owner-driver limited to the extent of ` 1 lac. The term driver has been explained on the first page of this policy, as meaning any person including the insured : Provided that a person driving holds an effective driving licence at the time of accident and is not disqualified from holding or obtaining such a licence. Provided also that a person holding an effective Learner's licence may also drive the vehicle and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989.
19. It cannot be gainsaid that terms of the policy of Insurance are stipulated on the instructions/guidance of the Tariff Advisory Committee which is a Statutory Authority under the Act. Learned counsel for the appellant-Insurance Company was unable to show that the Tariff Advisory Committee laid down any condition to limit the liability only for the owner himself, to be covered under the personal accident cover. When main object of the policy is to cover for the owner-driver, and the RISHU KATARIA 2014.10.14 17:22 I attest to the accuracy and authenticity of this document FAO-3493-2012 (O&M) -12- meaning of expression driver in the policy has been explained, limiting the liability to the registered owner in personal accident claim in rest of the term of policy cannot be given any legal sanctity. The interpretation of the aforesaid term to cover the personal accident claims cannot be made on the basis of each and every term because the basic intent is to cover not only the third party liability under the Act but also personal accident and even the own damage claim for which premium paid is ` 302.52P.
20. The principle of law applicable in a case where there are two conflicting views may now be elaborated. A full Bench of this Court held in M/s Indo Swiss Time Limited vs. Umrao and others, 1981 PLJ 189 that there is a great difficulty of making a choice between the decisions of a superior court when they are in direct conflict with each other. However, when such divergence arises and the litigants' fortune depends thereon, the issue cannot possibly be evaded. Obviously in such a situation it is not the province of the High Courts or the subordinate Courts to comment on the judgments of a superior court which are patently entitled to respect. Its plain duty in the interest of justice is to respectfully follow that which appears to it to state the law accurately or in any case more accurately than the other conflicting judgments.
21. It needs to be emphasized that learned counsel for the appellant-Insurance Company could not dispute liability of the Insurance Company in case the vehicle was being driven by the owner himself as premium of ` 50/- for the personal accident claim was paid. If that be so, why not the same principle should apply in case the victim is driving the RISHU KATARIA 2014.10.14 17:22 I attest to the accuracy and authenticity of this document FAO-3493-2012 (O&M) -13- vehicle under the authority of the owner. The deposit of premium for personal accident claim in the package/comprehensive policy in my view cannot be limited only to the owner as the words used in the policy to cover personal accident is described as 'owner driver'. Any other interpretation to these plain words would be restricting the authorized driving to the owner himself and such a consequence is manifestly illegal. Such an interpretation would in fact amount to a contract to pay premium for the life insurance which cannot be so as the premium has been paid for the policy issued under the Act.
22. In Ningamma and another's case (supra) the claim was made under Section 163-A of the Act. The policy of insurance was "Act only Policy" and not a comprehensive/package policy. The victim was travelling on Hero Honda motorcycle which he had borrowed from the real owner. Hon'ble Supreme Court held that the deceased cannot be held to be employee of the owner of the motorcycle although he was authorized to drive the said vehicle by its owner, and, therefore, he would step into the shoes of the owner of the motorbike. I am of the view that if the borrower of the vehicle steps into the shoes of owner, the terms of the policy which is comprehensive/package policy would include the personal accident claim of the person driving the vehicle provided he holds a valid licence.
23. From the above discussion, I find that the view expressed by this Court in Umesh Kumari's case (supra) and Monika's case (supra) is more in consonance with the principle held by Hon'ble Supreme Court in Ningamma's and Sinitha's cases (supra) and also the purpose and object RISHU KATARIA 2014.10.14 17:22 I attest to the accuracy and authenticity of this document FAO-3493-2012 (O&M) -14- of the policy of insurance towards personal accidents. The contention, therefore, raised by the learned appellant's counsel to challenge the Award on this ground cannot be sustained.
24. It was proved on record in the instant case that the claimant spent `60,729/- for his medical treatment but since the maximum amount of medical expenditure as per the structured formula contained in second schedule of the Act is ` 15,000/- that was granted by the Tribunal.
25. It was also proved on record that the claimant suffered 25% permanent disability. The learned Tribunal awarded the amount of ` 50,000/- towards permanent disability probably @ ` 2000/- per percentage of the disability and determined the amount of ` 50,000/-. The certificate of permanent disability prepared by the Board of Doctors is Ex. P-5. Dr. Manjit Singh was member of the Board has been examined as PW-5. The amount in terms of permanent disability could have been much more as it was to be determined in terms of Note 5 appended to the Second Schedule of the Act pertaining to disability in non-fatal accident which reads as under:-
"The following compensation shall be payable in case of disability to the victim arising out of non-fatal accidents:-
Loss of income, if any, for actual period of disablement not exceeding fifty two weeks. PLUS either of the following:-
(a) In case of permanent total disablement the amount payable shall be arrived at by RISHU KATARIA 2014.10.14 17:22 I attest to the accuracy and authenticity of this document FAO-3493-2012 (O&M) -15-
multiplying the annual loss of income by the Multiplier applicable to the age on the date of determining the compensation, or
(b) In case of permanent partial disablement such percentage of compensation which would have been payable in case of permanent total disablement as specified under item (a) above.
Injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and percentage of loss of earning capacity shall be as per Schedule I under Workmen's Compensation Act, 1923."
26. No amount towards the loss of income during the period of admission was even granted by the Tribunal and the determination has not been made in terms of the aforesaid provision of the second schedule.
27. There is no ground to interfere in the amount of compensation awarded by the Tribunal. Therefore, finding no merit in the instant appeal and the same is dismissed.
28. Before parting with the judgment, I would find that fixing limit of liability in personal accident needs a serious re-look by the Tariff Advisory Committee which is a Statutory Regulatory Authority because huge amount of premium is being collected by the Insurance Companies under that head. There are about 100 millions of the vehicles on the roads in the country and there can be various unforeseen circumstances in which the owner-driver of the vehicle may suffer without his own fault in RISHU KATARIA 2014.10.14 17:22 I attest to the accuracy and authenticity of this document FAO-3493-2012 (O&M) -16- driving the vehicle like a stray cattle suddenly coming in front of the vehicle or such like instances. If that be the position, the condition to limit the liability in case of personal accident must be removed as no one invites the risk of his own life while driving the vehicles on road.
September 17, 2014 ( R.P. NAGRATH )
rishu JUDGE
RISHU KATARIA
2014.10.14 17:22
I attest to the accuracy and
authenticity of this document