Himachal Pradesh High Court
National Insurance Company vs Riya Thakur And Others on 6 August, 2025
( 2025:HHC:26496 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
FAO No.16 of 2015 Reserved on 24.07.2025 Decided on: 6th August, 2025 .
National Insurance Company .......Appellant versus Riya Thakur and others ...Respondents Coram The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1 No. For the appellant: Ms.Sunita Sharma, Senior Advocate with Mr.Dhananjay r Sharma and Ms.Sugandh Verma, Advocates.
For the respondents: Ms.Anu Tuli Azta, Advocate for respondents No.1 and 2.
Respondent No.3 ex-parte.
Satyen Vaidya, Judge The instant appeal has been filed against the award dated 22.09.2014 passed by the learned Motor Accident Claims Tribunal, Shimla (for short 'the Tribunal') in MAC Petition No.3-S/2/14, whereby a sum of Rs.2,50,000/-
with interest @ 9% per annum from the date of filing of the petition till the realization has been granted in favour of the claimants under Section 163-A of the Motor Vehicle Act (for short 'the Act').
1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
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2. The claimants are the daughters of deceased Rajan Thakur who died in a motor vehicle accident involving Alto car No.HP-08A-0569 at place Gayahru Nallah, Nahora .
Pul Chopal, District Shimla, H.P.
3. The facts relevant to decide the issue involved in the appeal are that deceased Rajan Thakur himself was driving the vehicle at the time of accident and the said vehicle was owned by the wife of deceased Smt.Asha Thakur (respondent No.3 herein).
4. The insurer had sought to avoid its liability to indemnify the insured by alleging that the petition was not maintainable; as the deceased himself was driver of the vehicle and was not covered under the policy of insurance.
The insurer had further taken a stand that the petition was collusive between the claimants and the owner of the vehicle as they were holding close relationship of daughters and mothers.
5. Issues No.3 and 5 were framed by learned Tribunal vide order dated 20.08.2014 as under:-
3. Whether the petition is not maintainable under Section 163-A of the Act as alleged? OPR-1.
5. Whether the petition has been filed in collusion with respondent No.2 as alleged? OPR-1.::: Downloaded on - 06/08/2025 21:31:09 :::CIS
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6. Both the above issues have been decided by the learned Tribunal by returning common findings to the effect that the claimants had an independent legal right to file a .
claim petition in respect of the death of their father.
7. At the time of hearing of the appeal, learned counsel for the appellant has placed reliance on the judgments passed by the Hon'ble Supreme Court in Oriental Insurance Company Limited vs. Rajni Devi and others (2008) 5 SCC 736 and in Ram Khiladi and another vs. United India Insurance Company and another (2020) 2 SCC 550, to urge that the insured was not entitled to be indemnified by the insurer as the deceased was not a third party. It has been submitted that the deceased was none other than the husband of the owner and in such case, he was in permissive use of the vehicle as a driver and thus had stepped into the shoes of the owner. Since, the owner cannot seek indemnification against himself, the claim petition was not maintainable.
8. From the reply filed by the insurer before the learned Tribunal, it isnot made out that any specific objection, as is now claimed before this Court, was explicitly raised. However, in the grounds of appeal, the foundation has been laid. In any case, the ground raised by the appellant ::: Downloaded on - 06/08/2025 21:31:09 :::CIS 4 ( 2025:HHC:26496 ) being purely a question of law, can be looked into in appeal by this Court.
9. In Oriental Insurance Company Limited vs. .
Rajni Devi and others (supra), it has been held as under:-
"11. The liability under Section 163-A of the Act is on the owner of the vehicle as a person cannot be both, a claimant as also a recipient. The heirs of Janakraj could not have maintained a claim in terms of Section 163- A of the Act. For the said purpose only the terms of the contract of insurance could be taken recourse to."
10. In Ramkhiladi and another vs. United India Insurance Company and another (supra), the Hon'ble Supreme Court has held as under:-
"9.5 It is true that, in a claim under Section 163A of the Act, there is no need for the claimants to plead or establish the negligence and/or that the death in respect of which the claim petition is sought to be established was due to wrongful act, neglect or default of the owner of the vehicle concerned. It is also true that the claim petition under Section 163A of the Act is based on the principle of no fault liability. However, at the same time, the deceased has to be a third party and cannot maintain a claim under Section 163A of the Act against the owner/insurer of the vehicle which is borrowed by him as he will be in the shoes of the owner and he cannot maintain a claim under Section 163A of the Act against the owner and insurer of the vehicle bearing registration No. RJ 02 SA 7811. In the present case, the parties are governed by the contract of insurance and under the contract of insurance the liability of the insurance company would be qua third party only. In the present case, as observed hereinabove, the deceased cannot be said to be a third party with respect to the insured vehicle bearing registration No. RJ 02 SA 7811. There cannot be any ::: Downloaded on - 06/08/2025 21:31:09 :::CIS 5 ( 2025:HHC:26496 ) dispute that the liability of the insurance company would be as per the terms and conditions of the contract of insurance. As held by this Court in the case of Dhanraj (supra), an insurance policy covers the liability incurred by the insured in respect of death of or .
bodily injury to any person (including an owner of the goods or his authorized representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. In the said decision, it is further held by this Court that Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle.
9.6 In view of the above and for the reasons stated above, in the present case, as the claim under Section 163A of the Act was made only against the owner and insurance company of the vehicle which was being driven by the deceased himself as borrower of the vehicle from the owner of the vehicle and he would be in the shoes of the owner, the High Court has rightly observed and held that such a claim was not maintainable and the claimants ought to have joined and/or ought to have made the claim under Section 163A of the Act against the driver, owner and/or the insurance company of the offending vehicle i.e. RJ 29 2M 9223 being a third party to the said vehicle.
9.7 Now, so far as the reliance placed upon by the learned Advocate for the claimants on the decision of this Court in the case of Naveen Kumar (supra), on considering the issue involved in that decision, we are of the opinion that the said decision shall not be applicable to the facts of the case on hand and/or the same shall not be of any assistance to the claimants. In that case, the issue was as to who could be said to be the registered owner of the vehicle and the liability of the owner who sold the vehicle, but his name continued to be as the owner with the registering authority. To that, it was held that the person in whose name the motor vehicle stands registered is the owner of the vehicle for the purpose of the Act.
9.8 However, at the same time, even as per the contract of insurance, in case of personal accident the owner- driver is entitled to a sum of Rs.1 lakh. Therefore, the deceased, as observed hereinabove, who would be in the shoes of the owner shall be entitled to a sum of Rs.1 ::: Downloaded on - 06/08/2025 21:31:09 :::CIS 6 ( 2025:HHC:26496 ) lakh, even as per the contract of insurance. However, it is the case on behalf of the original claimants that there is an amendment to the 2ndSchedule and a fixed amount of Rs.5 lakh has been specified in case of death and therefore the claimants shall be entitled to Rs.5 .
lakh. The same cannot be accepted. In the present case, the accident took place in the year 2006 and even the Judgment and Award was passed by the learned Tribunal in the year 2009, and the impugned Judgment and Order has been passed by the High Court in 10.05.2018, i.e. much prior to the amendment in the 2nd Schedule. In the facts and circumstance of the present case, the claimants shall not be entitled to the benefit of the amendment to the 2ndSchedule. At the same time, as observed hereinabove, the claimants shall be entitled to Rs.1 lakh as per the terms of the contract of insurance, the driver being in the shoes of the owner of the vehicle.
9.9 Now, so far as the submission made on behalf of the claimants that in a claim under Section 163A of the Act mere use of the vehicle is enough and despite the compensation claimed by the heirs of the owner of the motorcycle which was involved in the accident resulting in his death, the claim under Section 163A of the Act would be maintainable is concerned, in view of the decision of this Court in Rajni Devi (supra), the aforesaid cannot be accepted. In Rajni Devi (supra), it has been specifically observed and held that the provisions of Section 163A of the Act cannot be said to have any application with regard to an accident wherein the owner of the motor vehicle himself is involved. After considering the decisions of this Court in the cases of Oriental Insurance Co. Ltd. V. Jhuma Saha (2007) 9 SCC 263; Dhanraj (supra); National Insurance Co. Ltd. V. Laxmi Narain Dhut (2007) 3 SCC 700 and Premkumari v. Prahlad Dev (2008) 3 SCC 193, it is ultimately concluded by this Court that the liability under Section 163A of the Act is on the owner of the vehicle as a person cannot be both, a claimant as also a recipient and, therefore, the heirs of the owner could not have maintained the claim in terms of Section 163A of the Act. It is further observed that, for the said purpose, only the terms of the contract of insurance could be taken recourse to. In the recent decision of this Court in the case of Ashalata Bhowmik (supra), it is specifically held by this Court that the parties shall be governed by the terms and conditions of the contract of ::: Downloaded on - 06/08/2025 21:31:09 :::CIS 7 ( 2025:HHC:26496 ) insurance. Therefore, as per the contract of insurance, the insurance company shall be liable to pay the compensation to a third party and not to the owner, except to the extent of Rs.1 lakh as observed hereinabove."
.
11. Coming to the facts of the case, it has been proved that the deceased was driving the vehicle himself at the time of accident. The deceased was the husband of the owner of the vehicle. Nothing has been stated either in the pleadings or evidence by the claimants about the capacity in which the deceased was driving the vehicle. Keeping in view the entirety of circumstances, the deceased can be said to be driving the vehicle at the time of accident with the permission of the owner as a borrower and hence in the light of the exposition of law noticed above, the deceased would be deemed to have stepped into the shoes of the owner. That being so, the petition would not be maintainable even under Section 163-A of the Act, because the owner cannot claim compensation from himself.
12. However, another aspect of the matter cannot be ignored as it comes out from the terms of the policy of insurance which binds the insured and the insurer.It is revealed that the insurer had insured the owner against personal accident to the extent of Rs.2,00,000/- and for such purpose, had accepted the premium of Rs.100/-. That being ::: Downloaded on - 06/08/2025 21:31:09 :::CIS 8 ( 2025:HHC:26496 ) so, the insurer having agreed to pay Rs.2,00,000/- covering personal accident risk of the owner, cannot avoid such liability even in the case like the one in hand, where the .
deceased was in the vehicle by stepping into the shoes of the owner.
13. Thus, the appeal is partly allowed. The impugned award dated 22.09.2014 passed by the learned Motor Accident Claims Tribunal, Shimla in MAC Petition No.3- S/2/14, is modified to the extent that the claimants will be paid compensation of Rs.2,00,000/- on account of death of deceased Rajan Thakur along-with interest @ 9% per annum from the date of filing of the petition till actual realization.
14. The appeal is disposed of in the aforesaid terms, so also the pending applications, if any.
15. Record be sent back forthwith.
August 06, 2025 (Satyen Vaidya)
(naveen) Judge
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