Rajasthan High Court - Jodhpur
Smt. Meena Jain & Ors vs United Insurance Comapny on 6 September, 2017
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 16 / 2000
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Connected With
S.B. Civil Misc. Appeal No. 17 / 2000
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_____________________________________________________
For Appellant(s) : Mr. R.K.Rathi.
For Respondent(s) : Mr. V.R.Mehta.
_____________________________________________________
HON'BLE MR. JUSTICE ARUN BHANSALI
Judgment (2 of 10) [ CMA-16/2000 & 17/2000] 06/09/2017 These appeals are directed against the judgment & award dated 16/9/1999 passed by the Motor Accident Claims Tribunal (First), Jodhpur ('the Tribunal'), whereby, the applications for compensation filed by the claimants have been rejected.
The applications for compensation were filed by Smt. Meena Jain and Master Gaurav seeking compensation for the death of Kumari Sonu @ Sonia and by Smt. Meena Jain, Master Gaurav and Smt. Sayar Kanwar for the death of Narpat Raj Mehta inter alia with the averments that on 5/9/1993 deceased Narpat Raj Mehta was driving car no. RJ-22-C-0155 from Pali to Jodhpur along with his wife Meena, mother Sayar Kanwar and Children Sonu & Gaurav; the car, on Pali-Jodhpur road in front of Kudi Petrol Pump at Kudi Village at about 2.00 pm, suddenly collided with a 'Neem' tree. On account of injuries suffered, the driver Narpat Raj Mehta died on the spot, Ku. Sonia was admitted to Mahatma Gandhi Hospital, Jodhpur, where she also succumbed to the injuries and other occupants of the car also suffered injuries. The vehicle belonged to non-applicant No.2 and was insured with non- applicant no.1, who are jointly and severally liable for payment of compensation. For the death of Sonu, compensation to the tune of Rs.6 Lakh and for the death of Narpat Raj Mehta, compensation to the tune of Rs.20,46,000/- was claimed.
Response was filed by the Insurance Company inter alia with the averments that the vehicle was insured with the Insurance Company, the compensation claimed was exaggerated and the (3 of 10) [ CMA-16/2000 & 17/2000] vehicle was over-loaded. It was also contended that based on the averments made in the application, the claimants were not entitled to any compensation as Narpat Raj Mehta himself was driving the car and, therefore, his legal representatives were not entitled to any compensation from the Insurance Company and till such time the accident does not occur on account of negligence of driver of the vehicle the Insurance Company cannot be held liable and, therefore, the applications deserve to be dismissed.
The owner of the vehicle did not appear and as such the matter proceeded ex-parte against him.
Based on the averments made by the parties, the Tribunal framed five issues. On behalf of the claimants Smt. Meena Jain & Smt. Sayar Kanwar were examined as witnesses and 09 documents were produced. No evidence was produced by the Insurance Company.
After hearing the parties, the Tribunal came to the conclusion that for the first time the plea was raised in the oral statement that a Truck was coming towards the car from the wrong side and to save the car when deceased Narpat Raj Mehta turned the car, the same struck the tree. The Tribunal noticed that said aspect has not been indicated in the applications and even in the police report, no such indication was given. On the other hand, it was indicated in the FIR that car suddenly struck the tree and, therefore, on account of contradiction between the pleadings, documents and oral statements, the said statement was not accepted. The Tribunal came to the conclusion that though death (4 of 10) [ CMA-16/2000 & 17/2000] of Sonia and Narpat Raj Mehta in the accident is proved, the negligence or rashness of the driver is not proved. It was also found from the evidence that Narpat Raj Mehta had borrowed the vehicle from respondent no.2 and, therefore, the deceased was not in employment of the owner of the vehicle. The Tribunal also came to the conclusion that as the negligence/rashness of the driver of the car was not proved and one of the applications was for the death of driver himself, the claimants were not entitled to seek compensation under Section 166 of the Motor Vehicles Act, 1988 ('the Act') and consequently dismissed the applications.
It is submitted by learned counsel for the appellants that the Tribunal committed grave error in coming to the conclusion that the application for compensation under Section 166 of the Act was not maintainable. It was submitted that it was not necessary to prove in all cases the negligence of the driver of the vehicle, on the other hand if the accident has occurred on account of lack of any negligence of the driver of the vehicle and the driver himself has succumbed on account of the injuries suffered in the accident, subject to the conditions in the Policy of Insurance the compensation can be claimed.
Reliance in this regard was placed on the observations made in the case of Ningamma & Anr. vs. United India Insurnace Co. Ltd. : 2009 ACJ 2020.
While countering the submissions made by counsel for the respondent that as the insured vehicle was borrowed by deceased Narpat Raj Mehta from the owner of the vehicle, he stepped into (5 of 10) [ CMA-16/2000 & 17/2000] the shoes of owner and owner cannot himself be a recipient of compensation as liability to pay the same is on him and, therefore, the Insurance Company is not liable, it was submitted that the term 'driver' is inclusive of 'owner of the vehicle' and, therefore, compensation can be claimed in this regard.
Reliance was placed on the judgment in Kamlesh Devi & Ors. vs. New Insurance Co. Ltd. : 2017 (1) MPLJ 187 and United India Insurance Company vs. Smt. Meera Devi & Ors. : 2015 ACJ 2833, which judgment was upheld by dismissal of SLP. It was prayed that the judgment impugned be set aside and claimants be awarded just compensation.
Learned counsel for the Insurance Company submitted that admittedly there were no allegations in the application regarding rash and negligent driving by driver of the vehicle and for maintaining the applications under Section 166 of the Act the said aspect of rash and negligent driving is sine qua non, therefore, application for compensation for death of Sonia was not maintainable and insofar as the application filed for death of Narpat Raj is concerned, besides the fact that there was no allegation pertaining to negligence, as Narpat Raj had borrowed the vehicle from owner of the car, he stepped into the shoes of the owner and as such the legal representatives of the deceased were not entitled to claim compensation.
Further submissions were made that the Insurance Company did not cover the risk of owner of the vehicle and, therefore, the Tribunal was justified in rejecting the application.
(6 of 10) [ CMA-16/2000 & 17/2000] Reliance was placed on the judgment in Ningamma (supra). I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
It is not in dispute that in the applications for compensation, the claimants merely indicated that while travelling from Pali to Jodhpur, the vehicle suddenly struck the tree resulting in injuries to the occupants therein to which Narpat Raj Mehta and Sonia succumbed. The said plea was sought to be diluted in the statements of two witnesses, who were examined before the Tribunal indicating that a truck was coming on the wrong side of the road and to save the vehicle, it was turned by Narpat Raj due to which the car struck the tree. The Tribunal, based on the pleadings as well as the version in the First Information Report that the accident suddenly happened, as noticed hereinbefore, came to the conclusion that the plea sought to be raised by way of oral statement cannot be accepted and the said finding by the Tribunal cannot be said to be perverse, the same, therefore, cannot be faulted.
Admittedly, the applications for compensation were filed under Section 166 of the Act as at the relevant time, it was the only provision available on the statute book.
It is trite law that in all claims under Section 166 of the Act, for fixing the liability on the respondents, whether owner and driver or insurer of the offending vehicle, it is necessary for the claimants to prove that the accident occurred on account of negligence of the driver or owner of the vehicle. The negligence on (7 of 10) [ CMA-16/2000 & 17/2000] the part of driver or owner is sine qua non for claiming compensation under Section 166 of the Act.
In Oriental Insurance Company Ltd. vs. Meena Variyal :
(2007) 5 SCC 428, the Hon'ble Supreme Court held that the victim of a motor accident or his dependents, once they approach the Tribunal under Section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. Though, no such averments have been made in the application, only the owner of the car and insurer were impleaded as party and it was stated in the application that the owner and insurer were jointly and severally liable to compensate the claimants.
In the said context the Hon'ble Supreme Court in Oriental Insurance Company Ltd. vs. Rajni Devi : (2008) 5 SCC 736 held that a person who borrowed the vehicle from its owner, who was authorized to drive the said vehicle by its owner, would step into the shoes of the owner of that vehicle.
Similarly, in Oriental Insurance Company Ltd. vs. Jhuma Saha : (2007) 9 SCC 263, the Hon'ble Supreme Court dealing with a case in which the deceased was the owner of the insured vehicle, which dashed against a tree on the road side noticed that for the reasons stated in the claim petition or otherwise, the deceased himself was to be blamed for the accident, the accident did not involve motor vehicle other than the one which the deceased was driving and observed that the liability of the insurer is to the extent of indemnification of the insured against the (8 of 10) [ CMA-16/2000 & 17/2000] injured person, a third person, or in respect of damages to property and, therefore, insured cannot be fastened with any liability under the provisions of the Act.
Further in Danraj vs. New India Assurance : (2004) 8 SCC 553, it was held by Honb'le Supreme Court that Section 147 of the Act does not require a Insurance Company to assume the risk for death or bodily injury to the owner of the vehicle.
In the case of Ningamma (supra) relied on by learned counsel for both the parties, the Hon'ble Supreme Court again reiterated the principles laid down in the case of Meena Variyal (supra) and Rajni Devi (supra), however, the Court made the following observations:
"However, the question remains as to whether an application for demand of compensation could have been made by the legal representatives of the deceased as provided in Section 166 of the MVA. The said provision specifically provides that an application for compensation arising out of an accident of the nature specified in sub- section (1) of Sector 165 be made by the person who has sustained the injury; or by the owner of the property; or where death has resulted from the accident, by all or any of the legal representatives of the deceased; or by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be. When an application of the aforesaid nature claiming compensation under the provisions of Section 166 received, the Tribunal is required to hold an enquiry into the claim and then proceed to make an award which, however, would be subject to the provisions of Section 162, by determining the amount of compensation, which is found to be just. Person or persons who made claim for compensation would thereafter be paid such amount. When such a claim is made by the legal representatives of the deceased, it has to be proved that the deceased was not himself responsible for the accident by his rash and negligent driving. It would also be necessary to prove that the deceased would be covered under the policy so as to make the insurance company liable to make the payment to the heirs."
(Emphasis supplied) (9 of 10) [ CMA-16/2000 & 17/2000] It was observed by Honb'le Supreme Court that when the claim is made by the legal representatives of deceased, it has to be proved that the deceased was not himself responsible for the accident by his rash and negligent driving and it was further observed that it would also be necessary for the claimants to prove that the deceased would be covered under the policy so as to make Insurance Company liable to make payment to heirs.
In the present case, the Policy though not exhibited but available on record indicates payment of premium towards liability at Rs.160/- and Rs.200/- as personal accident benefits for passengers and Rs.15/- towards legal liability to "paid driver". The Policy nowhere indicates any coverage qua the injury to or death of owner of the vehicle. As per the principles laid down in the case of Ningamma (supra) if the same is taken as carving out an exception regarding proving of rash and negligent driving by driver-owner, the same necessarily requires that the owner should be covered under the Policy so as to make the Insurance Company liable. However, as in the present case, even the said aspect is missing, the Insurance Company cannot be held liable.
So far as the judgment in case of Meera Devi (supra) relied on by learned counsel for the appellants is concerned, in the said case the Division Bench of Allahabad High Court by relying on the definition of 'driver' as contained in Section 2(9) of the Act came to the conclusion that as the owner is also a driver, the liability would be covered. However, it would be noticed that the requirement of the Policy is 'paid driver' and as in the present case (10 of 10) [ CMA-16/2000 & 17/2000] the deceased Narpat Raj Mehta was not a paid driver and was merely a borrower of the vehicle, the said principle or the determination made in the case of Meera Devi (supra) has no application to the facts of present case.
The judgment in the case of Kamlesh Devi (supra) merely followed the judgment in case of Meera Devi (supra) and, therefore, the same also has no application to the facts of present case.
In view of the above discussion, as the applications were filed under Section 166 of the Act and the claimants failed to make any averment pertaining to rash and negligent driving by driver of the car, the deceased Narpat Raj Mehta was himself borrower of the car from its owner and stepped into the shoes of the owner and Narpat Raj Mehta was not a paid driver, the applications filed by the claimants were not maintainable/the impleaded owner and insurer cannot be held liable for making payment of any compensation. The findings recorded by the Tribunal, therefore, do not call for any interference in the present appeals.
There is no substance in the appeals and the same are, therefore, dismissed.
(ARUN BHANSALI)J. Baweja/-