Delhi District Court
Smt. Kamlesh W/O Late Sh. Mahabir Singh vs Anita D/O Sh. Vir Singh on 1 September, 2014
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IN THE COURT OF MS. PREETI AGRAWAL GUPTA: PO
MACTCUMADJICum LAC(NORTH): ROHINI: DELHI
Case No. 73/09
Unique ID No. 02404C0384342006
Smt. Kamlesh W/o Late Sh. Mahabir Singh
Resident of A229, Bhagat Panna, Nangli
Sakrawati Village, New Delhi
....Petitioners
Versus
1. Anita D/o Sh. Vir Singh
R/o 148/74/10, East Sagarpur,
New Delhi.
2. ICICI Lombard General Insurance Co. Ltd.
Regd. Office ICICI Bank Towers, Bandra
Kurla Complex, Mumbai400 051.
Mailing Address: Zenith House,
Keshavrao Khadye Marg. Opp. Race Course,
Maha Laxmi, Mumbai400 034.
....Respondents.
DATE OF INSTITUTION: 19.12.2006
JUDGMENT RESERVED ON: 19.08.2014
DATE OF JUDGMENT: 01.09.2014
AWARD:
Case No. 73/09 Kamlesh Vs. Anita & Ors
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1. The present petition has been filed by the petitioner U/s 166 M.V.Act as legal representative/ mother of the deceased Ajay Tehlan , unmarried man aged 22 years at the time of road accident in question. The deceased is survived only by his mother as father of deceased was predeceased. By way of the present petition, the LR of the deceased have sought compensation for irreparable monetary loss , mental agony, loss of love and affection and future prospects plus all other heads of compensation as per entitlement, caused due to accidental death of deceased to the tune of Rs. 30,00,000/.
2. The concise facts of the case as averred in the petition are that on 28.05.06, the deceased borrowed motorcycle bearing No. DL4SAZ0364 from respondent no. 1 who is the registered owner as he was to go to distribute the marriage invitation cards of his sister at Village Kanjhawala , Delhi. It is averred that when deceased alongwith his friend Sunil Tehlan reached near government Petrol Pump on Gheora Kanjhawala Road at about 6.45 p.m., all of a sudden, a pedestrian crossed the road due to which deceased applied sudden brakes which caused motorcycle in question to fall down on the road. Due Case No. 73/09 Kamlesh Vs. Anita & Ors :3: to the fall, the driver/deceased and pillion rider both sustained fatal/serious injuries and some one from public informed the police. The deceased victim Ajay Tehlan expired on spot and pillion rider Sunil Tehlan was taken to hospital by the police. The case was registered at P.S. Kanjhawala vide FIR 69/06 U/s 279/304A/337 IPC involving the motorcycle bearing no. DL4SAZ0364 which was being driven by deceased himself. There was no other offending vehicle involved and, therefore, the challan was prepared as untraced case.
3. It is the case of the claimants that deceased Ajay Tehlan, was about 22 years of age at the time of accident having sound health and not suffering from any disease and that the deceased was working in a private company as a Supervisor and having an earning of Rs. 7,000/ per month and was also studying in 12th class as a private candidate. The petitioner has suffered a lot of pain and agony because of this accident as she lost her only son. The petitioner has claimed dependency upon her son who is deceased and contended that all the respondents are liable to pay compensation to the petitioners.
4. After due service, neither respondent no. 1 has appeared Case No. 73/09 Kamlesh Vs. Anita & Ors :4: nor has filed any written statement despite several opportunities. Hence, Respondent no. 1 has been proceeded exparte vide orders of Court dated 31.05.2007.
5. Respondent no. 2/insurance company has filed the written statement taking preliminary objection that the claim petition is not maintainable and liable to be dismissed as there no involvement of any third party. The insurance company has denied its liability on the ground that there is no contractual relationship between deceased and the insurance company and that the company was not liable to indemnify the loss of life of the deceased. It is the case of the insurance company that the deceased was not under the course of employment of respondent no. 1/insured and, therefore, was not entitled for compensation, as per law. It is further the case of the insurer that the deceased himself was driving the motorcycle which was insured with respondent no. 2 and, therefore, denied the entitlement of the petitioner U/s 166 M./V. Act as the accident was not caused due to rash and negligent driving of the offending vehicle by any other offending driver. Hence, the liability of the insurance company is outrightly denied.
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6. An application for amendment U/o 6 rule 17 CPC was filed on 08.03.2010, seeking to convert the present petition under the provisions U/s 163A M.V.Act. The application was disposed of by ld. Predecessor on the same day with the observation that the petitioner had already led her evidence to that that the deceased was earning a salary at the rate of Rs. 7,000/ per month. The application was dismissed with the findings that the provisions of Section 163A of Motor Vehicle Act were applicable to the case where the deceased is having an income of Rs. 40,000/ per annum only, as per Second Schedule attached to Section 163A Motor Vehicle Act .
7. It is a matter before the court that the petition under adjudication is U/s 166 Motor Vehicle Act . The facts of the case, as alleged by the claimant show that the deceased was driving the motorcycle bearing no. DL4SAZ0364 with a pillion rider when the deceased suffered a fall due to sudden appearance of a pedestrian owing to which the deceased was forced to apply sudden brakes. The alleged facts of the accident do not attribute the involvement of any other offending vehicle in causing the accident. Therefore, there is no allegation of rash Case No. 73/09 Kamlesh Vs. Anita & Ors :6: and negligent driving of any alleged offending vehicle or offending driver.
8. Let us now examined the provisions U/s 163A of Motor Vehicles Act which are special provisions relating to the payment of compensation on structured formula basis. The Hon'ble Supreme Court of India duly considered the law in Oriental Insurance Company Ltd. VS. Hansraj Bhai Vs. Kodala ; (2001) 5 SCC 175. The Hon'ble Apex Court observed that these provisions are applicable to a special category of victim having annual income of not more than Rs.40,000/ ( forty thousand ) and that ,too , without proving the negligence of the driver of the vehicle involved by virtue of a beneficial legislation enacted for that purpose and is governed by Second Schedule of the Act. However, the claim U/s 163A of the Act restricts the claim of compensation U/s 140 M. V. Act which is based upon the principle of "no fault" liability. The compensation payable U/s 163 A is in alternative to determination of compensation U/s 168 of the Motor Vehicle Act. If a claim is filed U/s 168 r/w 166 M. V. Act wherein the Case No. 73/09 Kamlesh Vs. Anita & Ors :7: aspect of "neglect, wrongful act or default" of the offending vehicle is to be pleaded and established, the compensation was payable U/s 140 of the Act without the necessity of establishing any wrongful act, neglect or default of the offending vehicle/person responsible for death or disablement. Under Section 141(3) of the Act, if a person gets the compensation on principle of fault liability , then legal provision has been made for adjustment of compensation received U/s 140 M. V. Act. There is no such provision of adjustment of compensation received U/s 163A from the compensation receivable "under the Act" on the principle of fault. Therefore, the scheme of compensation U/s 163A of Motor Vehicle Act is to draw out a compensation based on structured formula for getting the relief to the claimants at the earliest. The scheme of legislature U/s 163A of M. V. Act is clearly in alternative to the determination of compensation U/s 168 M. V. Act on fault basis under the Act. The Hon'ble Supreme Court further appreciated the law for payment of compensation U/s 163A of the Motor Vehicle Act, after duly considering the scheme of other Case No. 73/09 Kamlesh Vs. Anita & Ors :8: provisions in the Act. It was held that compensation payable U/s 163A of the Act was not an interim measure, but was final.
9. The above preposition of law has been duly appreciated as the law of the land in National Insurance Co. ltd. Vs. Sinitha & Ors. in Special Leave Petition (C) No. 6513 of 2007 by the Hon'ble Supreme Court of India. The Hon'ble Apex Court further developed the law on the issue "whether a claim for compensation made U/s 163 A of the Act , can be defeated either by the owner or by the Insurance company, by pleading and establishing, that the accident in question was based on the `negligence' fault or default". It was further discussed "whether a claim made u/s 163A of the Act is a claim under the fault liability principle or under the no fault liability principle". After appreciating the various provisions under the M. V. Act, the binding legal position has been concluded by the Hon'ble Apex Court in National Insurance Co. Ltd. Vs. Sinitha & Ors. (Supra) that:
"Section 163A of the Act has an overriding effect on all other provisions of the Motor Vehicles Act, 1988... that Case No. 73/09 Kamlesh Vs. Anita & Ors :9: there is no basis for inferring that Section 163A of the Act is founded under the "nofault" liability principle....... that on the conjoint reading of Sections 140 and 163A, the legislative intent is clear, namely, that a claim for compensation raised under section 163A of the Act, need not be based on pleadings or proof at the hands of the claimants showing absence of "wrongful act", being "neglect" or "default"....... however, it is open to the owner or insurance company, as the case may be, to defeat a claim under Section 163A of the Act by pleading and establishing through cogent evidence a "fault" ground ("wrongful act" or "neglect" or "default"). It is, therefore, doubtless, that Section 163A of the Act is founded under the "fault" liability principle."
10. In the facts of the present case, charge sheet has been filed by investigating agency as untraced case as there was no involvement of any other offending vehicle. There is no allegation of rash and negligent driving by any offending driver of any other offending vehicle. As per the facts before the court, the deceased was himself driving the motorcycle in Case No. 73/09 Kamlesh Vs. Anita & Ors :10: question. Hence, there is no allegations of rash and negligent driving for determination of compensation to the claimant. As discussed above, in the claim U/s 163A Motor Vehicle Act, the claimant has neither to plead nor establish any negligence. In view of the facts and circumstances, at best, the claim of the petitioner can be examined by virtue of provisions U/s 163A Motor Vehicle Act, as there is no claim sustainable or made out U/s 166 Motor Vehicle Act. For these reasons, although, the previous application for amendment has been disallowed by the court, it is considered appropriate and just and proper in the facts of the case to examine the entitlement of the petitioner for grant of compensation U/s 163A Motor Vehicle Act. Hence, the petition shall be adjudicated as per provisions U/s 163A Motor Vehicle Act .
11. From the pleadings of the parties, the following issues were framed vide orders dated 31.05.2007. Issues need no modification and can be properly adjudicated by treating the petition U/s 163A of Motor Vehicle Act.
1. Whether on 28.05.2006 near Govt. Petrol Pump, Gheora Kanjhawala Road, deceased Ajay Tehlan died while riding Case No. 73/09 Kamlesh Vs. Anita & Ors :11: motorcycle no. DL4SAZ0364?OPP
2. Whether the risk was not covered under the policy?OPR2
3. Whether the petitioner is entitled to compensation as prayed for, if so, from which of the respondent? OPP.
4. Relief.
12. Petitioner/mother of deceased has appeared as PW1 and tendered her affidavit in evidence vide Ex. PW1/A and has also tendered the documents i.e. certified copies of criminal case record as Ex.PW1/1. Appointment letter of deceased as Ex.PW1/2 , copy of mark Sheet as Mark "A" and copy of death certificate of father of deceased as Mark "B". Despite opportunity, the witness has not been crossexamined by any of the respondent.
13. The other witness of the petitioner is PW2 IO SI V.D. Pandey. PW2 has deposed that he is the Investigating officer in case FIR No.69/06. The witness has further deposed that the case was sent as untraced on 20.09.2007 and the certified copies filed by the petitioner on record already Case No. 73/09 Kamlesh Vs. Anita & Ors :12: exhibited as Ex.PW1/1 are genuine and correct. Witness has not been crossexamined by the respondent. No other witness was examined on behalf of the claimants.
14. No evidence has been led on behalf of any of the respondents despite opportunity. Hence, respondents evidence was closed. The insurance company also did not wish to lead any evidence to prove any breach or violation of any of the terms and conditions of the insurance policy.
15. The court has duly appreciated the pleadings and material on record along with the evidence tendered before the court, in light of the arguments addressed. The relevant applicable law in regard to the case before the court has also been considered.
16. The issues in the petition are being adjudicated as under:
ISSUE NO. 1: Whether on 28.05.2006 near Govt. Petrol Pump, Gheora Kanjhawala Road, deceased Ajay Tehlan died while riding motorcycle no. DL4SAZ0364?OPP
17. The unique facts of the case are that on 28.05.2006, the deceased was going on motorcycle of Case No. 73/09 Kamlesh Vs. Anita & Ors :13: respondent no. 1 after borrowing the same from her. On reaching near Government Petrol Pump on Gheora Kanjhawala Road, Delhi, a pedestrian suddenly appeared on road due to which the deceased was forced to apply sudden brakes. There was a pillion rider namely Sunil Tehlan and both deceased as well as pillion rider fell from motorcycle whereby the deceased victim Ajay Tehlan suffered fatal injuries and died before he reached the hospital. FIR No. 69/06 , PS Kanjhawala was registered in the road accident in question and upon investigation as no other offending vehicle was involved, the final report / challan was prepared as untraced case. The fact of registration of FIR, charge sheet as untraced case, the postmortem of the deceased, seizure memo of the motorcycle and other documents of investigation such as Mechanical Inspection Report, site plan etc. are duly proved on record.
18. It is the case of fatal injuries sustained by the victim Ajay Tehlan S/o Late Sh. Mahabir Singh, aged 22 years, in the road accident in question and the claim is being dealt U/s 163A, M. V. Act with the averment that Case No. 73/09 Kamlesh Vs. Anita & Ors :14: the deceased was employed as a Supervisor at the salary of Rs. 7,000/ and also a student of 12th class as a private candidate. The employment letter of the deceased is tendered by mother of the deceased as Ex.PW1/2. It is also brought on record that father of the deceased had already expired. The testimony of PW1 is not challenged or rebutted.
19. The case of the petitioner has duly proved in respect of the averments as to the occurrence of the accident in question. The postmortem report of the deceased is duly proved. It is established on record that the deceased Ajay Tehlan driving motorcycle bearing no. DL4SAZ0364 on 28.05.06 at Village Kanjhawala, Delhi. It is also an admitted case that motorcycle involved in the accident belongs to respondent no. 1 as its registered owner. The issue no. 1 accordingly, stands adjudicated in favour of the plaintiff, though, the question of entitlement U/s 163A Motor Vehicle Act shall be examined in discussion of issue no. 3 hereunder.
ISSUE NO. 2:
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Whether the risk was not covered under the policy?OPR2
20. The present case is being dealt U/s 163A, M.V.Act. It has already been discussed hereinabove that Section 163A Motor Vehicle Act is a special provision relating to payment of compensation to the victim on road accident who fall within the category as 'a third party'. It is the case before the court has put by the insurance company that the deceased is not 'a third party' as necessary to cover the liability of Insurance Company U/s 163A of Motor Vehicle Act. It is the case of the petitioner that the deceased was driving a borrowed motorcycle which he borrowed from respondent no. 1 as its registered owner. The question to be examined before the court is whether the deceased was a third party visavis the insured. The insurance company has admitted that the motorcycle involved in the accident which was being driven by the deceased was duly insured with it. The defence put forth on behalf of insurance company is that the deceased was neither a third party, qua the insured nor would be entitled to any compensation Case No. 73/09 Kamlesh Vs. Anita & Ors :16: payable to the ownerdriver. The insurance company has denied its liability on the ground that the deceased would not be covered as a "third party" for the purpose of claiming the compensation U/s 147 M.V.Act . It is the case of the insurance company that the insured/Respondent no. 1 is the owner of motorcycle involved in the accident and that under the insurance policy as per Section II, Conditions No. 3 & 4 of the policy, the driver of the vehicle at the time of driving the insured motorcycle in question is deemed to be insured and hence, the deceased is not a 'third party'. It is contended that the insurance company is not liable towards the LRs of the deceased as the insurance cover does not indemnify the deceased as there was no relationship of master and servant between the deceased and that the deceased was not under course of employment of respondent no. 1. The liability is also denied with the allegations that at the time of alleged accident of the deceased/driver of the motorcycle in question was not having a valid and effective driving licence thereby committing breach of terms and conditions of insurance policy.
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21. As such, respondent no. 2 /insurance company has not led any respondent's evidence to prove any breach in terms and conditions of the insurance policy upon the defence of absence of driving licence of the deceased at the time of driving of motorcycle in question. As per Motor Vehicle Act, it is the duty of the insurer to discharge its liability by payment of compensation to the victim /LRs of the victim wherein victim is 'third party' as per Section 147 of Motor Vehicle Act. As per law, the insurance company is under a duty to discharge its liability in respect of Motor Vehicle Act covered by the insurance policy and to indemnify the insured of the policy. Section 149 (2) Motor Vehicle Act provides the legal defences available to the insurance company which can justify the denial of its statutory liability by claimed breach(es) as terms and conditions of the insurance policy.
22. It is well settled binding principle of law as held in National Insurance Company Limited Vs. Swarn Singh & Ors., AIR 2004 SC 1531 (1) that "it is beyond any doubt or dispute that under Case No. 73/09 Kamlesh Vs. Anita & Ors :18: Section 149(2) of Motor Vehicle Act, any insurer can defend the action on any of the ground mentioned therein".
23. It has been further held that the liability of the insurer is a statutory one. The liability of the insurer to satisfy the decree in favour of a third party is also statutory. It has been further held that the insurance companies are, with a view to avoid their liability must not only establish the available defences in terms of Section 149(2)(a)(ii) of Motor Vehicle Act but must also establish breach, on the part of the owner of the vehicle and the burden to proof of the same is upon the insurer.
24. The Hon'ble High Court of Delhi in New India Assurance Co. Ltd.v. Sanjay Kumar & Ors. ILR 2007 (II) Delhi 733, referred to National Insurance Company Limited Vs. Swaran Singh v. Lehru & Ors., (2003) 3 SCC 338; New India Assurance Co..Shimla v. Kamla and Ors. (2001) 4 SCC 342; Sohan Lal Passi v. P. Sesh Reddy, (1996) 5 SCC 21; and Skandia Insurance Company Limited v. Kokilaben Case No. 73/09 Kamlesh Vs. Anita & Ors :19: Chandravadan, (1987) 2 SCC 654 and analysized the law with regard to the liability of the Insurer visavis the Insured and third parties. In light of the legal position as aforesaid, it has been held by the Hon'ble High Court of Delhi in the latest judgment in MAC APP. No. 404/2007 in National Insurance Company Vs. Ram Pal Singh & Ors. vide orders dt. Feb. 29th 2012 .
(i) in order to avoid an obligation to indemnify the Insured, the Insurer is under obligation to establish that there was conscious and willful breach of the terms of the policy.
(ii) Even when there is a willful breach of the terms of the policy under Section 149 (2) (a) of the Act, the Insurance Company is under obligation to indemnify the liability towards the third parties and recover the same from the owner.
(iii) Once the Insured proves that the driver did not hold any driving licence to drive the Class of Case No. 73/09 Kamlesh Vs. Anita & Ors :20: vehicle involved in the accident or that the driving licence was fake; requires the owner and driver to produce the driving licence and if they failed to produce the same, the onus of proving breach of policy would be deemed to be discharged. Onus would then shift on the owner to establish that he was not guilty of breach of the terms of policy. In the absence of any evidence being produced by the Insured, in such cases, it will be presumed that he was guilty of a willful breach. The Insured in such cases, would be entitled to recover the compensation paid to third party in discharge of its statutory liability.
(iv) Where policy is avoided on proof or facts which renders the Insurance policy void under Section 149 (2) (b) of the Act, the Insurance Company would not be under obligation to pay even to third parties, as in such cases the Case No. 73/09 Kamlesh Vs. Anita & Ors :21: contract of insurance is nonest.
25. Hence, in view of the well settled and above discussed law of the land, the onus to prove the breach of the terms and conditions of the insurance policy lies upon the insurance company. As, in the present case, the insurance company has not led any respondent evidence and has not discharged the onus to prove that the insurance policy has been breached due to absence of driving licence of the deceased. There has no been evidence or issuance of necessary notices on behalf of insurance company to prove the alleged breach in the insurance policy for claiming exemption from its statutory liability.
26. However, the discussion hereinabove on the aspect of lack of evidence to claim breach in the terms and conditions of the insurance policy also needs to be examined in light of the claimed lack of liability of the insurance company to cover the risk of the untimely death of the deceased in the present case. It is an admitted case before the court that the respondent no. 1 namely Anita is the registered owner of the two wheeler/motorcycle in Case No. 73/09 Kamlesh Vs. Anita & Ors :22: question and that the deceased himself was driving the motorcycle in question, at the time of accident, after borrowing the same from respondent no. 1/ its registered owner. Hence, it is to be examined if the deceased was a third party visavis the insured .
27. There is no dispute about the proposition of law that while claiming compensation under Section 163A of the Motor Vehicles Act from the owner or the insurer of any vehicle involved in the accident, the Claimant is not required to prove any negligence on the part of the driver from whose vehicle the compensation is claimed. In this case, the deceased himself was driving the twowheeler which was borrowed by him from its owner (Respondent No.1 herein). This case is squarely covered by the reports of the Supreme Court in Oriental Insurance Co. Ltd. v. Rajni Devi & Ors., (2008) 5 SCC 736, New India Assurance Co. Ltd.
v.
Sadanand Mukhi, (2009) 2 SCC 417 and Ningamma & Anr. Vs. United India Insurance Co. Ltd., (2009) 13 SCC 710. In Rajni Devi (supra) and Ningamma(supra), the Supreme Court brought out the difference between the third party Case No. 73/09 Kamlesh Vs. Anita & Ors :23: liability and contractual liability. It was held that where the victim is not a third party, the claim for compensation shall be governed by the terms of the Contract of Insurance. The relevant para of Ningamma(supra) is extracted hereunder:
"18. However, in the facts of the present case, it was forcefully argued by the counsel appearing for the respondent that the claimants are not the "third party", and therefore, they are not entitled to claim any benefit under Section 163A of the MVA. In support of the said contention, the counsel relied on the decision of this Court in Oriental Insurance Co. Ltd. v. Rajni Devi (2008) 5 SCC 736 and New India Assurance Co. Ltd. v. Sadanand Mukhi, (2009) 2 SCC 417.
19. In Oriental Insurance Co. Ltd. v. Rajni Devi (supra) wherein one of us, namely, Hon'ble S.B. Sinha, J. was a party, it has been categorically held that in a case where third party is involved, the liability of the insurance company would be unlimited.
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It was also held in the said decision that 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 MAC.APP. No. 628/2009 Page 4 of 10 claimant against the insurance company would depend upon the terms thereof.
xxxxx xxxxx xxxxx
21. In our considered opinion, the ratio of the decision in Oriental Insurance Co. Ltd. v. Rajni Devi (supra) 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 an employee of the owner of the motorbike 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. We have already extracted Section 163A of the MVA Case No. 73/09 Kamlesh Vs. Anita & Ors :25: 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.
22. 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 163A. But if it is proved that the driver is the owner of the motor vehicle, in that liability to pay the same is on him. This proposition is absolutely clear on a reading of Section 163A 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 163A of the MVA.
23. When we apply the said principle into the facts of Case No. 73/09 Kamlesh Vs. Anita & Ors :26: the present case we are of the view that the claimants were not entitled to claim compensation under Section 163A 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."
28. In the instant case, the deceased was admittedly not a third party. He himself was driving the twowheeler which he borrowed from registered owner / respondent no. 1. A perusal of the Insurance Policy would show that a premium of `50/ was charged towards personal accident cover for the owner driver. GR 36 under the Motor Policy (Tariff Advisory Committee Regulation for Transaction of Motor Insurance in India) deals with the coverage of owner driver.
29. The above discussion and detailed legal position has been duly considered by our Hon'ble High Court of Delhi in MAC Appeal NO. 628/09 in case titled Bajaj Allianz General Insurance Co. Ltd. Vs. Ritu Rawat & Anr., vide judgment dt. 27.04.2012 wherein it has been held that "the owner driver is the person who is the registered owner and who is driving the Case No. 73/09 Kamlesh Vs. Anita & Ors :27: twowheeler himself. Since the deceased was not the owner, his legal representatives were not entitled to the compensation of `1,00,000/ meant under Personal Accident for the owner driver. Anybody driving the vehicle with or without permission of the owner cannot be taken as owner driver. Thus, in this case, neither the compensation towards the third party was payable as the deceased was not a third party nor the compensation under personal accident coverage was payable as it was meant for ownerdriver."
30. The applicable law and rules have been carefully appreciated and examined. The Hon'ble High Court of Delhi in case titled Bajaj Allianz General Insurance App. No. 628/09 has been pleased carefully appreciated the above detailed preposition of law in facts of the case before Hon'ble High Court of Delhi which are similar to the instant case before this tribunal. It has been held that the owner driver is the person who is the registered owner and who is driving the twowheeler himself. Since the deceased was not the owner, his legal representatives were not entitled to the compensation of `1,00,000/ meant under Personal Accident for the owner driver.
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Anybody driving the vehicle with or without permission of the owner cannot be taken as owner driver. Thus, in this case, neither the compensation towards the third party was payable as the deceased was not a third party nor the compensation under personal accident coverage was payable as it was meant for ownerdriver.
31. This tribunal/court is bound by the preposition of law laid down by Hon'ble Superior Courts and lastly laid down by our own Hon'ble High Court of Delhi. The motorcycle in question belongs to respondents no. 1 who is its registered owner. The deceased was himself driving the same at the time of accident as the same was borrowed by him from respondent no. 1. The LR of petitioner have not employer or employee , relationship between the deceased and respondent no. 1. On the contrary, document of employment of the deceased vide appointment letter Ex.PW1/2 is proved. It is well established facts before the court that the deceased was not the registered owner or the insured in respect of the motorcycle involved in the accident. It is not denied that the respondent no. 2 was the insurer of the motorcycle in question. However, since the deceased was not Case No. 73/09 Kamlesh Vs. Anita & Ors :29: the registered owner and was also not a third party visavis the insured, the insurance company is not statutorily liability to cover the risk of injury/death cause of the deceased. It is well settled law that any one driving the vehicle with or without the permission of the owner can not be taken as owner/driver. Thus, the LR of deceased /petitioner is not entitled for compensation towards the third party as the deceased was not a third party. The insurance company shall be liable for payment of any compensation under Personal Accident Coverage which was payable only to owner and driver under the terms and conditions of the insurance policy of the involved motorcycle in question. Since deceased is not the ownerdriver, no compensation can be paid to the L Rs even under this heard. Issue is accordingly, decided in favour of respondent no. 2/ insurance company against the petitioner. ISSUE NO. 3:
`Whether petitioner is entitled for compensation as prayed for ,if so, from which of the respondent?OPP.
32. This petition is being adjudicated U/s 163A of Motor Vehicles Act, though, it has been filed U/s 166 M.V. Case No. 73/09 Kamlesh Vs. Anita & Ors :30: Act by the petitioner as legal representative/mother of the deceased Ajay Tehlan. In this claim, petitioner/ mother of the deceased is the only LR of deceased victim as father of the deceased was predeceased. Hence, the petitioner no. 1 is the sole surviving L R of the deceased. The applicable preposition of law for adjudication of the compensation U/s 163A of M.V.Act has been discussed in length in this judgment in paras 8 & 9, hereinabove and are not being repeated in order to avoid unnecessary repetition.
33. It is considered that the present claim is being adjudicated for purpose of examining the entitlement of the petitioner for untimely death of her young son in the road accident in question by virtue of provisions of Section 163A Motor Vehicle Act. It has been further discussed at length, in issue no. 2 hereinabove, that risk of death of deceased is not covered under the Insurance policy of motorcycle bearing no. DL4SAZ0364 involved in the accident. Although, issue no. 1 has been adjudicated in favour of the petitioner and petitioner is not required to prove the aspect of rash and negligent driving , nevertheless, the deceased was not covered under the meaning Case No. 73/09 Kamlesh Vs. Anita & Ors :31: and purpose of "third party" visavis, respondent no. 1/insured.
34. It is also appreciated that there is no other entitlement of the petitioner shown before the court against the respondent no. 1, who was not admittedly the employer of the deceased. It has also been duly considered ( in issue no. 2 ) that the case of the deceased is also not covered for payment of Personal Accident Insurance Cover of Rs. 1 lakh as per settlement. The insurance policy being a contractual obligation, only the binding contracting parties who are the insurance company and the insurer /owner of the vehicle. The well settled legal position in Ritu Rawat's case ( Supra) laid down by Hon'ble High Court of Delhi has been duly appreciated and discussed in the former issue no. 2 of this judgment. Hence, the compensation against Personal Accident Insurance Cover to the tune of Rs. 1 lakh is only payable to the owner/driver, which is not the case here.
35. In view of the aforesaid facts and circumstances, the claim petition of the LR of the deceased fails. The petitioner is not entitled for payment of any compensation, against any of the respondents. The issue is decided accordingly.
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RELIEF:
36. In light of the detailed reasons and discussion on the case, the petition stands dismissed.
No order as to costs.
File be consigned to record room.
ANNOUNCED IN THE (PREETI AGRAWAL GUPTA) OPEN COURT PO,MACT1 CumADJ1
On 1st day of September 2014. Cum Designated LAC Court, NORTH,ROHINI, DELHI Case No. 73/09 Kamlesh Vs. Anita & Ors :33: Suit NO. 73/09 01.09.2014 Present: None.
Vide separate judgment, petition is dismissed. No order as to costs. File be consigned to Record Room.
(PREETI AGRAWAL GUPTA)
PO,MACT1 CumADJ1
Cum Designated LA Court,
NORTH,ROHINI, DELHI
Case No. 73/09 Kamlesh Vs. Anita & Ors
:34:
Suit No. 73/09
19.08.2014.
Present : Ld. Counsel for parties.
Arguments heard. Put up for consideration /order on 01.09.2014.
PO,MACT1 CumADJ1 Cum Designated LA Court, NORTH,ROHINI, DELHI 19.08.2014.
Case No. 73/09 Kamlesh Vs. Anita & Ors