Bombay High Court
Appellant : The New India Assurance ... vs Respondents : 1. Baban Son Of Narayan ... on 1 July, 2013
Author: A. P. Bhangale
Bench: A. P. Bhangale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
First Appeal No. 224 of 2003
Appellant : The New India Assurance Company Limited,
through its Divisional Manager, DOI, Gopal-
krishna Bhawan, Rani Jhansi Square,
Sitabuldi, Nagpur
versus
Respondents : 1. Baban son of Narayan Bansod, aged about
32 years, occ: service, resident of Back-side of Ladies Club Servant Quarters, Civil Lines, Nagpur
2. Sriram Chits (P) Limited, 4-A, North Bazar Road, Gokulpeth, Dharampeth Extn., Nagpur
3. Tulsiram @ Ram s/o Ramaji Narnaware, aged about 33 years, occ: private service, resident of Sudam Nagari, Verma Layout Nagpur Mr A. J. Pophaly, Advocate for appellant Mr S. K. Sable, Advocate for respondent no. 1 Respondents no. 2 and 3 served ::: Downloaded on - 27/08/2013 21:02:00 ::: 2 Coram : A. P. Bhangale, J Dated : 1st July 2013 Oral Judgment
1. Appellant Insurance Company has impugned in this appeal judgment and award dated 14th January 2003 passed by the Motor Accident Claims Tribunal, Nagpur in Claim Petition No. 813 of 2001 directing present appellant and respondent no. 2 Sriram Chits (P) Limited to pay compensation of in the sum of Rs. 80,000/- to original claimant (present respondent no.1) with interest @ 9% per annum from the date of petition till realization.
2. Facts in beief are as under :
Appellant in this appeal is insurer company (original respondent no. 1); respondent no. 1 is original petitioner/claimant while present respondents no. 2 and 3 had the same status in the claim petition.
Parties hereinafter shall be referred to as per their status in claim petition.
3. On 19.12.2010 petitioner had gone to village Gondkhairi along with respondent no. 3 in the evening time. On their return journey, respondent no. 3 was driving scooter and petitioner as also his son-in-law were occupying pillion seat. Near TCI Godown at Wadi, scooter dashed against a stone on the road as a result of which all of them fell down from the scooter. Petitioner sustained severe injuries to his head and to his left ::: Downloaded on - 27/08/2013 21:02:00 ::: 3 hand. He was removed to the hospital where he was given treatment for his injuries and left eye, but consequently, due to head injuries, he lost eye sight. According to him, accident occurred due to rash and negligent driving of scooter by respondent no.2. Scooter belonged to respondent no.
2 and it was insured with respondent no. 1. He claimed compensation of Rs. 1.50 lacs.
4. Respondent no.1 Insurance Company resisted the claim on the ground that respondent no. 3, petitioner-claimant and his son-in-law had consumed liquor and that respondent no. 3 was not holding valid driving licence. According to respondent no.1 Insurance Company, it was not at all liable to pay any compensation to petitioner-claimant.
5. Respondents no. 2 and 3 resisted claim petition on the ground that vehicle was used by respondent no. 3 after office hours and that respondent no. 3 was under the influence of liquor. They admitted that vehicle was insured with respondent no. 1 Insurance Company.
6. Learned Tribunal allowed the claim petition partly, as aforesaid. Hence, this appeal by Insurance Company. I am informed that respondent no. 2 Sriram Chits Limited has not preferred appeal against the Tribunal's award.
7. Heard learned counsel for appellant Insurance Company and learned counsel for respondent no. 1-original claimant. None appears for respondents no. 2 and 3 though served.
::: Downloaded on - 27/08/2013 21:02:00 ::: 48. Learned counsel for appellant Insurer argued that admittedly, respondents no. 1 and 3 were in drunken condition and that respondent no. 3 had no valid driving licence and their act in breach of policy conditions. Without prejudice to this, he submits that respondent no. 3 had not paid any extra premium to claim any special contract and that apart, respondent no. 1 could not be termed as third party in view of the fact that policy was "Act only policy". Proof of negligence of owner of offending vehicle or driver is necessary otherwise insurer cannot be made liable to pay compensation.
9. Learned counsel for respondent no. 1-claimant supported the judgment and award of the Tribunal.
10. In support of his contention that deceased were in an inebriated condition; were themselves responsible for accident and were, therefore, not entitled to claim compensation, learned counsel for appellant relied upon ruling in the case of Appaji & anr v. M. Krishna & anr reported in 2005 (1) TAC 994 (Kant). In that case, the Karnataka High Court accepted the contention that non-obstante clause appearing in Section 163-A neutralised and rendered ineffective any provision of Motor Vehicles Act or any other law for the time being in force disentitling the claimants from payment of compensation where death or injury was caused due to rash and negligent act of deceased or injured person. The Karnataka High Court answered the question, "whether claim application ::: Downloaded on - 27/08/2013 21:02:00 ::: 5 for death of person who himself was responsible for the accident is maintainable under Section 163-A of the Act" in the negative.
11. Learned counsel then pressed into service following rulings :
I. 1995 ACJ 600 United India Insurance v. Etnoori Goud & ors II. 2002 ACJ 271 New India Assurance v. C. M. Jaya & ors III. 2006 ACJ 1441 United India Insurance v. Tilak Singh & ors IV. 2009 ACJ 998 New India Assurance v. Sadanand Mukhi & ors
12. In United India Insurance v Etnoori and ors (supra), brother of owner of motor-cycle was driving vehicle and sustained fatal injuries when a bullock-cart negligently struck against the motor-cycle. The Apex Court held that there was no relationship of master and servant between owner and the deceased and, therefore, there was no liability of owner and consequently, no liability could be fastened on the insurance company. In the said case, even though the vehicle was insured for third party risk, the Apex Court held that insurance company could not be held liable since deceased was not a third party as he was driving the motor-cycle himself.
13. In New India Assurance v. C. M. Jaya & ors (supra), the question before the Apex Court was, whether the liability of insurance ::: Downloaded on - 27/08/2013 21:02:00 ::: 6 company is limited as per Section 95 (2) of the Motor Vehicles Act, 1939 in an "Act policy". The Supreme Court held in the affirmation, but observed that it is open to the insured to make payment of additional premium and get higher risk covered in respect of third party.
14. In United India Insurance v. Tilak Singh & ors (supra), it has been held that Insurance Company owes no liability towards the injuries suffered by a person who was a pillion rider if the insurance policy was a statutory policy or 'Act only' policy and hence it does not cover the risk of death of or bodily injury to gratuitous passenger.
15. In New India Assurance v. Sadanand & ors (supra), the Apex Court has held that by taking an 'Act policy', the owner of a vehicle fulfils his statutory obligation as contained in Section 147 of the Act. Liability of the insurer is either statutory or contractual. If it is contractual, its liability extends to the risk covered by the policy of insurance. If additional risks are sought to be covered, additional premium has to be paid. The Apex Court held that whosoever becomes victim of accident arising out of use of vehicle would not come within the purview of the term 'a person' under Section 147 of the M.V. Act.
16. Considering the rulings cited above and the nature of policy ::: Downloaded on - 27/08/2013 21:02:00 ::: 7 which was limited to "Act only", it could not have covered owner or driver of the scooter allowing three persons as riders despite the fact that it had carriage capacity of only two persons. Moreover, it is admitted by claimant as also respondent no. 3 that they and remaining one pillion rider were under the influence of liquor. Apart from this, it was merely claimed by respondent no. 3 that he was holding valid licence, but he failed to produce it on record and to prove it during the course of evidence. There was no proof of special contract or negligence to hold owner or insurer of offending motor vehicle liable to pay compensation under the Act covering risk of injury to the third party.
17. The Tribunal, therefore, erred in law when it held appellant Insurance Company liable to compensate respondent no. 1. The findings rendered by the Tribunal against appellant are not sustainable according to law and impugned judgment and award is liable to be set aside qua the appellant.
18. In the result, appeal is partly allowed. Impugned judgment and award is quashed and set aside as against appellant Insurance Company. No order as to costs. Amount, if any deposited by appellant during the pendency of present appeal, be refunded to it back to appellant-
insurer Company.
A. P. BHANGALE, J ::: Downloaded on - 27/08/2013 21:02:00 ::: 8 joshi ::: Downloaded on - 27/08/2013 21:02:00 :::