Delhi District Court
Shri Bhagirath (Subsequent Purchaser / ... vs Shri Narender Kumar on 9 April, 2013
IN THE COURT OF SHRI ARUN BHARDWAJ
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNALII,
DWARKA COURTS: NEW DELHI
114/DAR/11
IN THE MATTER OF :
1. Shri Bhagirath (Subsequent Purchaser / De facto Owner)
S/o Shri Hanuman Sharan,
R/o RZ295, Raj Nagar,
Palam, New Delhi.
... Petitioner
Versus
1. Shri Narender Kumar, (Registered Owner)
R/o 123, Village Bagdola,
Sector - 8, Dwarka,
New Delhi.
2. National Insurance Company Limited, (Insurer)
Plot No. 1, Pkt. 6, Nasirpur Block,
Dwarka, New Delhi.
... Respondents
Filed on : 23.08.2011
Reserved on : 01.04.2013
Decided on : 09.04.2013
J U D G M E N T:
1. This report of Investigating Police Officer (DAR) was filed by Investigating Officer in FIR No. 61/11 under Section 279/337/304A of IPC registered at P.S. Dwarka South where Shri Vivek son of Shri Bhagirath had suffered with fatal injuries in a Road 114/DAR/11 Shri Bhagirath Vs. Shri Narender Kumar & Ors. Page 1 of 7 Traffic Accident on 17.03.2011 while driving the Motorcycle bearing No. DL9SU2033.
2. Perusal of chargesheet, which is part of this report, shows that one Shri Vinod Kumar had stated before the Investigating Officer that on 17.03.2011, he was going with his friends namely, Shri Vivek Sharma and Shri Rafat Ali on motorcycle bearing No. DL9SU2033 (Bajaj Discover) from Sector 11, Dwraka to Palam and the motorcycle was being driven by Shri Vivek Sharma.
3. He had stated that around 2:30 p.m. when they reached near Vandana International School, Sector - 10, the front tyre of the motorcycle bursted all of a sudden and the motorcycle got disbalanced and hit a divider.
4. As a result of this, all the three persons on the motorcycle fell down on the road and sustained injuries and all the three persons were taken to the hospital by the police where they were treated. He had stated that the accident had taken place due to bursting of tyre of the motorcycle and nobody is responsible in this accident.
5. Notice of this report was issued to the father of the deceased Shri Bhagirath who is also owner of the offending vehicle being subsequent purchaser and de facto owner as well as to the insurance company.
6. Insurance company has taken an objection in its written statement that the accident had taken place due to self negligence of the deceased who is son of owner of the motorcycle and compensation is not payable under Section 163A of M.V. Act to the claimants in this case.
114/DAR/11 Shri Bhagirath Vs. Shri Narender Kumar & Ors. Page 2 of 77. Other objections are also taken namely that the deceased driver of the motorcycle was not having any driving license; there were three persons on the motorcycle in violation of traffic rules and as per MLC, the deceased was found smelling of alcohol.
8. The specific objection of insurance company to the maintainability of claim petition taken in written statement in para 5 is as under: "Para 5. It is also submitted that since the person who was driving the vehicle (now deceased) had stepped into the shoes of the owner / insured persons of the alleged offending vehicle while the accident was caused due to bursting of the front tyre of the motorcycle / insured vehicle, hence the insurance company is not entitled to compensate the LR's of the deceased late Shri Vivek or the injured person."
9. From the pleadings of the parties, following issues were framed:
1. Whether deceased Vivek suffered fatal injuries in Road Traffic Accident on 17.03.2011 while driving Motorcycle No. DL 9SU 2033? OPP
2. Whether LRs of the deceased are entitled to receive any compensation under Section 163A of M.V. Act or not?
3. If yes, then from whom and how much compensation is to be awarded in favour of the petitioners?
4. Relief.
10. Only father of the deceased entered in the witness box as PW1 and stated in his evidence by way of affidavit that he 114/DAR/11 Shri Bhagirath Vs. Shri Narender Kumar & Ors. Page 3 of 7 deposed that he is the purchaser of the offending vehicle from its registered owner though the vehicle was not transferred in the record of Transport Authority and the vehicle had remained in the name of Shri Narender Kumar. He further deposed that on the date of accident his deceased son had taken the motorcycle from him with his due consent and permission. He deposed that his deceased son was not under influence of alcohol and prayed that compensation be awarded in his favour.
11. In crossexamination, he deposed that his son had told him that he has a driving license issued by the Licensing Authority, Gurgaon but the claimant had not seen the driving license of his son.
12. No other witness was examined by any other parties.
13. On the basis of pleadings of parties, issuewise findings are as under: ISSUE NO. 1:
14. Counsel for the insurance company has relied on MAC Appeal No. 628/09 dated 27.04.2012 titled as Bajaj Alliance General Insurance Company Limited Vs. Ritu Rawat and Anr. to argue that claim petition is not maintainable.
15. In the case of Ritu Rawat (Supra), the claimants were parents of the deceased and the father of the deceased was registered owner of the motorcycle which was being driven by the deceased at the time of accident.
16. The Hon'ble High Court of Delhi relying on the judgment of Hon'ble Supreme Court in the case of Ningamma & 114/DAR/11 Shri Bhagirath Vs. Shri Narender Kumar & Ors. Page 4 of 7 Anr. Vs. United India Insurance Company Ltd., 2009 13 SCC 710 had held that neither the compensation towards third party was payable as the deceased was not a third party nor owner the compensation under personal accident coverage was payable as it was meant for ownerdriver. The Hon'ble High Court of Delhi had relied on paras 18, 19, 22 and 23 from the judgment of Ningamma & Anr. Vs. United India Insurance Company Ltd. which are as under: "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. Sandanand Mukhi, (2009) 2 SCC 417.
19. In Oriental Insurance Co. Ltd. v. Rajni Devi (surpa) 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. 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. (emphasis supplied) xxxxx xxxxx xxxxx
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 114/DAR/11 Shri Bhagirath Vs. Shri Narender Kumar & Ors. Page 5 of 7 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 the present case were 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."
17. In this case, the registered owner of the vehicle is Shri Narender Kumar. Shri Bhagirath, the claimant being father of the deceased, is the subsequent purchaser. However, registration certificate was not transferred and the vehicle remained in the name of Shri Narender Kumar. So far as third parties are concerned, the registered owner continues to be liable to pay the compensation to them along with the subsequent purchaser. For this, reference can be made to the judgment of Hon'ble High Court of Delhi in the case of Mukesh Kumar Vs. Kamlesh Devi, 2011 (6) AD (Delhi) 403, Rajender Kumar Vs. Neelam Gadhok, 2008 (103) DRJ 628 and Jaspal Singh Vs. Asha Rani, 2005 (124) DLT 461.
18. However, in this case claimant Shri Bhagirath himself being subsequent purchaser is not a third party and therefore, Shri Narender Kumar or its insurer is not liable to pay any compensation.
114/DAR/11 Shri Bhagirath Vs. Shri Narender Kumar & Ors. Page 6 of 719. Resultantly, while it is held in answer to Issue No. 1 that the deceased Shri Vivek had suffered fatal injuries in a Road Traffic Accident on 17.03.2011 while driving the motorcycle bearing No. DL9SU2033, the Issue No. 2 is answered holding that the claimants are not entitled to receive any compensation as the deceased was not a third party.
20. In view of this, Issue No. 3 is also decided against the claimants holding that no compensation is payable to the claimants.
21. Resultantly, claim petition is dismissed.
22. Copy of order be given dasti to the parties. Announced in the Open Court On the 9th day of April, 2013 (ARUN BHARDWAJ) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNALII DWARKA COURTS, NEW DELHI 114/DAR/11 Shri Bhagirath Vs. Shri Narender Kumar & Ors. Page 7 of 7