Bombay High Court
Iffco Tokio General Insurance Co. Ltd., ... vs Shri Aarti W/O Mohanrao Tabhane And 3 ... on 14 March, 2016
Author: R.K. Deshpande
Bench: R.K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
First Appeal No.803 of 2013
And
First Appeal No.1055 of 2014
First Appeal No.803 of 2013
Iffco Tokio General Insurance Co. Ltd.,
Nagpur Divisional Office,
8th Floor, Shriram Shyam Tower,
Kingsway, Near NIT, Nagpur. ... Appellant/
Ori. Respondent
No.2.
Versus
1. Smt. Aarti w/o Mohanrao Tabhane,
Aged about 34 years,
Occupation - Housewife.
2. Ku. Gitarani d/o Mohanrao Tabhane,
Aged about 10 years,
Occupation - Education.
3. Ku. Nishu d/o Mohanrao Tabhane,
Aged about 7 years,
Occupation - Education.
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Respondent Nos.2 and 3, minors,
through their mother and natural
guardian, respondent No.1.
All R/o near Vidyalaxmi School,
Kiran Nagar No.2,
Amravati, Taluka & District Amravati. ... Ori. Petitioners.
4. Shri Rahul Radheshyam Somani,
Age - Adult, Occupation - Owner of
Bajaj Scooter No.MH-30-F-2380,
R/o Tilak Park, Ramdaspeth,
Akola, Taluka & District Akola.
ig ... Ori. Respondent
No.1.
Shri D.N. Kukday, Advocate for Appellant.
Shri P.R. Agrawal, Advocate for Respondent Nos.1 to 3.
First Appeal No.1055 of 2014
1. Smt. Arti w/o Mohanrao Tabhane,
Aged 39 years,
Occupation - Household.
2. Ku. Gitarani d/o Mohanrao Tabhane,
Aged 15 years,
Occupation - Education.
3. Ku. Nishu d/o Mohanrao Tabhane,
Aged 12 years, Occupation - Education.
Appellant Nos.2 and 4 minor,
by their natural guardian mother,
i.e. appellant No.l-Smt. Arti w/o Mohanrao
Tabhane.
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All R/o Near Vidyalaxmi School,
Kiran Nagar No.2, Amravati,
Tahsil & District Amravati. ... Appellants/
Ori. Claimants on
RA.
Versus
1. Shri Rahul Radhesham Somani,
Aged - Major,
Occupation - Owner of Bajaj
Scooter No.MH-30/2380,
R/o Tilak Park, Ramdas Peth,
Akola, Tq. & Distt. Akola.
2. Iffco Tokio Gneral Insurance Company
Ltd., through its Divisional Manager,
Branch At - 701-A, 8th Floor,
Shriram Shyam Tower,
Kingsway, Near NIT, Nagpur. ... Respondents/
Ori. Respondents on
RA.
Shri P.R. Agrawal, Advocate for Appellants.
Shri D.N. Kukday, Advocate for Respondent No.2.
Coram : R.K. Deshpande, J.
Dated : 14th March, 2016 Oral Judgment :
1. The Motor Accident Claims Tribunal at Amravati has partly allowed Claim Petition No.9 of 2008 filed by the claimants ::: Uploaded on - 16/03/2016 ::: Downloaded on - 31/07/2016 08:57:49 ::: 4 fa803.13.1055.14.odt under Section 163A of the Motor Vehicles Act, 1988 for grant of compensation on account of death of one Mohan Tabhane, who was riding Motor Cycle No.MH-30/F-2380 in a motor vehicle accident occurred on 2-5-2007, and awarded the compensation of Rs.1,00,000/- with interest at the rate of 7% per annum from the date of filing of petition till its realization.
2.
The Tribunal has held that the deceased was neither the owner of the vehicle nor was in the employment of the owner, but had borrowed the vehicle from the owner and his risk was covered by the policy at Exhibit 63 upon payment of premium for personal accident. The policy restricted such claim to Rs.1,00,000/-, which has been granted. The Insurance Company has challenged this award in First Appeal No.803 of 2013, whereas the claimants have filed First Appeal No.1055 of 2014 for further enhancement.
3. The case of the claimants before the Tribunal was of the involvement of two vehicles, including Motor Cycle ::: Uploaded on - 16/03/2016 ::: Downloaded on - 31/07/2016 08:57:49 ::: 5 fa803.13.1055.14.odt No.MH-30/F-2380 , which was being ridden by deceased Mohan Tabhane, and the another was unidentified. It is not the finding recorded by the Tribunal that the case was of the involvement of the two vehicles, but the Tribunal proceeds on the footing that only the said motor cycle was involved. Undisputedly, the respondent-Rahul Radheshyam Somani was the owner of the said motor cycle and the deceased had borrowed it from him. The Tribunal has further recorded the finding that the deceased was not riding the motor cycle as an employee of the owner of the vehicle. The policy in question at Exhibit 63 covers the third party risk, i.e. an Act Policy, and the premium to cover the risk of personal accident is also paid.
4. There is no reason to re-open the aforesaid findings of fact recorded by the Tribunal. In the light of the aforesaid findings recorded and the undisputed position available on record, the following points fall for determination :
::: Uploaded on - 16/03/2016 ::: Downloaded on - 31/07/2016 08:57:49 ::: 6fa803.13.1055.14.odt (1) Whether the Tribunal was right in entertaining the claim petition under Section 163A of the Motor Vehicles Act, 1988 at the instance of the dependents of the deceased, who met with an accident while driving the vehicle? and (2) Whether the Tribunal has committed an error in holding that the risk of the deceased was covered by the policy of insurance at Exhibit 63?
5. In order to prove the claim under Section 163A of the Motor Vehicles Act, the claimants are not required to plead and prove that the death in respect of which the claim has been made, occurred due to any wrongful act or neglect or default of the owner of the vehicle concerned. In the decision of Apex Court in the case of Ningamma & Anr. v. United India Insurance Co. Ltd., reported in II (2009) ACC 804 (SC), it was a claim under Section 163A of the said Act and the deceased had borrowed the motor cycle from the owner, which met with an accident. The dependents of the deceased filed a petition. The Court has held in paras 18 and 19 as under :
::: Uploaded on - 16/03/2016 ::: Downloaded on - 31/07/2016 08:57:49 ::: 7fa803.13.1055.14.odt "18. In the case of Oriental Insurance Company Ltd.
Rajni Devi and Others (supra), wherein one of us, namely, Hon'ble Justice S.B. Sinha is 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. 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 claimant against the Insurance Company would depend upon the terms thereof. It was held in the said decision that Section 163A 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 163A 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 163A of the MVA.
In our considered opinion, the ratio of the aforesaid decision 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 ::: Uploaded on - 16/03/2016 ::: Downloaded on - 31/07/2016 08:57:49 ::: 8 fa803.13.1055.14.odt 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."
"19. We have already extracted Section 163A 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. 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 case, the owner could not himself be a recipient of compensation as the 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."::: Uploaded on - 16/03/2016 ::: Downloaded on - 31/07/2016 08:57:49 ::: 9
fa803.13.1055.14.odt The only vehicle involved in the present case was the motor cycle, which the deceased was riding, and it was insured with the appellant-Insurance Company. The deceased cannot, therefore, be called as a 'third party'. The deceased was not the employee of the owner of the motor cycle in question. If it is accepted that the deceased stepped into the shoes of the owner, still the claim under Section 163A of the said Act would not be maintainable at the instance of the dependents of the deceased, in view of the aforesaid law laid down by the Apex Court. Point No.(1) is answered accordingly.
6. In case of a contractual policy covering the risk of personal accident, the terms of the policy will have to be looked into. Perusal of the policy at Exhibit 63 shows that the basic premium of Rs.300/- was paid to cover the third party liability and the additional premium of Rs.50/- was paid to cover the risk of "PA Owner Driver to the extent of Rs.1,00,000/-". The terms of 'Personal Accident Cover For Owner-Driver' contained in policy wording are placed on record at Exhibit 64, and in Section 3, the ::: Uploaded on - 16/03/2016 ::: Downloaded on - 31/07/2016 08:57:49 ::: 10 fa803.13.1055.14.odt cover is made subject to the following conditions :
(i) The owner-driver is the registered owner of the vehicle insured therein.
(ii) The owner-driver is the insured named in the policy.
(iii) The owner-driver holds on effective driving license, in accordance with the provisions of Rule 3 of the Central Motor Vehicles Rules, 1989, at the time of the accident.
The deceased does not fulfill any of the aforesaid conditions and his dependents cannot, therefore, claim compensation on the basis of the policy at Exhibit 63 against the Insurance Company. The Tribunal has committed an error in holding that the risk of the deceased was covered by the policy at Exhibit 63 and the dependents of the deceased were entitled to the compensation of Rs.1,00,000/- along with interest accrued thereon.
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7. Two policies are produced on record, one is at Exhibit 28 by the owner of the vehicle, and another is at Exhibit 63 by the Insurance Company in respect of the same vehicle. Both the policies were valid on the date of the accident.
The basic premium shown in the policy at Exhibit 28 is of Rs.300/- to cover the third party risk. The policy at Exhibit 28 does not indicate the payment of premium of Rs.50/- under the head "PA Owner Driver to the extent of Rs.1,00,000/-" on the right hand column of the policy. In spite of this fact, the right hand side column shows the total premium paid as Rs.350/-. In the policy at Exhibit 63 produced by the Insurance Company, the premium of Rs.300/- is shown to have been paid for the basic third party risk, whereas under the head "PA Owner Driver to cover the risk to the extent of Rs.1,00,000/-", the premium shown to have been paid is of Rs.50/- and the total premium paid is shown as Rs.350/-.
8. The owner of the motor cycle in question has filed an ::: Uploaded on - 16/03/2016 ::: Downloaded on - 31/07/2016 08:57:49 ::: 12 fa803.13.1055.14.odt affidavit in lieu of examination-in-chief stating that the risk of driver and pillion rider is covered in respect of the motor cycle in question, and this is not reflected in the policy at Exhibit 28. In the cross-examination, the ower states that the deceased was not his employee and was riding the motor cycle as per his permission. He further states in the cross-examination that while taking out the insurance policy, the premium to cover the risk of occupant in the vehicle was not paid. He accepts that the premium of Rs.50/- was paid towards "Owner-Driver liability to the extent of Rs.1,00,000/-". He states that the policy was comprehensive in nature.
9. The Insurance Company has examined its Branch Manager, one Bhushan Bhalchandra Raut, and the policy at Exhibit 63 has been produced on record. The witness states that the Insurance Company has accepted Rs.123/- towards premium for the own damage, Rs.300/- towards premium for the basic third party, and Rs.50/- towards premium for personal accident for owner-driver, and the tax totalling to Rs.531/- has been paid.
::: Uploaded on - 16/03/2016 ::: Downloaded on - 31/07/2016 08:57:49 ::: 13fa803.13.1055.14.odt This evidence is in conformity with the policy at Exhibit 63.
10. Shri Agrawal, the learned counsel appearing for the claimants, has invited my attention to clause 3 in Section 2 under the heading "Liability to third parties" contained in the policy working for two wheelers at Exhibit 64, which is reproduced below :
"Section 2 : Liability to third parties:
1 ...
2 ...
3 In terms of and subject to the limitations of the indemnity granted by this section to the insured, the Company will indemnify any driver who is driving the vehicle on the insured's order or with insured's permission provided that such driver shall as though he/she was the insured observe fulfill and be subject to the terms exceptions and conditions of this Policy in so far as they apply."
He has urged that the Insurance Company has undertaken to indemnify any driver, who is driving the vehicle on the order or insured's permission. He submits that the policy being ::: Uploaded on - 16/03/2016 ::: Downloaded on - 31/07/2016 08:57:49 ::: 14 fa803.13.1055.14.odt comprehensive in nature, covers the risk of the driver, who was neither the owner nor the employee.
11. Though both the policies at Exhibits 28 and 63 are comprehensive in nature covering the risk of own damage, and third party, and the risk of the owner-driver is covered upon payment of premium of Rs.50/-, undisputedly, no premium is paid to cover the risk of the rider of the motor cycle, who borrowed it from the owner and was not the employee of the owner. Neither the oral evidence of the owner of the vehicle nor the policy wording of two wheelers at Exhibit 64 shows that the risk of the deceased is covered by clause 3, relied upon by Shri Agrawal. Clause 3 in Exhibit 64 runs with the condition that the driver was the 'insured' in the policy in terms of the proviso. The indictment of the Insurance Company for payment of compensation on account of death of the rider of the motor cycle by the Tribunal was not proper.
12. In view of above, the following order is passed :
::: Uploaded on - 16/03/2016 ::: Downloaded on - 31/07/2016 08:57:49 ::: 15fa803.13.1055.14.odt First Appeal No.803 of 2013 filed by the Insurance Company is allowed by setting aside the award dated 25-4-2013 passed by the Motor Accident Claims Tribunal at Amravati in Claim Petition No.9 of 2008 and the said claim petition is dismissed.
First Appeal No.1055 of 2014 filed by the claimants seeking enhancement of compensation, does not at all survive and the same is dismissed.
If the Insurance Company has deposited any amount in these matters, the same shall be permitted to be withdraw along with interest, if any accrued thereon.
13. The appeals are disposed of in above terms. No order as to costs.
JUDGE Lanjewar, PS/ Nikhare, PA ::: Uploaded on - 16/03/2016 ::: Downloaded on - 31/07/2016 08:57:49 :::