Punjab-Haryana High Court
Bajaj Allianz General Insurance Co. Ltd vs Poonam & Ors on 16 October, 2014
Author: Rekha Mittal
Bench: Rekha Mittal
FAO No. 3353 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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FAO No. 3353 of 2011
Date of decision: 16.10.2014
Bajaj Allianz General Insurance Co Limited ........ Appellant
Versus
Poonam and others .......Respondents
Coram: Hon'ble Mrs. Justice Rekha Mittal
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Present: Mr. N K Mittal, Advocate
for the Appellant
Mr. Ashwani Bakhsi, Advocate
for respondents No. 1 and 2
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1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in
the Digest?
Rekha Mittal, J.
The present appeal has been directed against the award dated 03.02.2011 passed by the Motor Accident Claims Tribunal, Rohtak (for brevity, 'the Tribunal') whereby the application filed by Poonam and others for grant of compensation in regard to death of Sanjay, out of use of motor cycle Bajaj Platina bearing registration No. HR-12J-8006 on 13.05.2008, has been allowed under Section 163-A of the Motor Vehicles Act, 1988 (in short, 'the Act') and the applicants/respondents have been held entitled to compensation of Rs.4,89,500.00.
MOHAN LAL BIMBRA2014.11.03 13:48 I attest to the accuracy and authenticity of this document Chandigarh FAO No. 3353 of 2011 2
The facts relevant for disposal of the present appeal are that on 13.05.2008, Sanjay along with his uncle Purshotam was going from Rohthak to village Anwal on motorcycle bearing registration No. HR-12J- 8006 driven by Sanjay. At about 9.00 am, when they reached near Gopal Brick Kiln, Lalhi, a truck came from the opposite side driven by its driver in a rash and negligent manner and struck into his motorcycle. Sanjay sustained serious injuries and died on the spot. The accident took place due to involvement of the motor cycle, owned by Gagan-respondent No. 1.
Respondent No. 2 - insurance Company filed the reply raising preliminary objections that Sanjay (since deceased) is not a third party in relation to the insured vehicle as he himself was using the same. Sanjay stepped into the shoes of the owner of said vehicle and liability in respect of rider is not required to be covered statutorily by the Act. The insurance Company insures liability of the owner towards 3rd party but does not insure the rider who stepped into shoes of the insured and thus petition is not legally maintainable.
The learned Tribunal recorded findings on issue Nos. 1 and 3 in favour of the claimants and issue No. 4 was decided against the insurance company.
Counsel for the appellant (insurance company) has submitted that under Section 163-A of the Act, the liability to pay compensation is on the owner of the motor vehicle or the authorized insurer. It is argued that as regards plea of the claimants, Sanjay borrowed motorcycle from Gagan, the registered owner/insured, therefore, he stepped into shoes of the owner of motor bike and as such, the application for grant of compensation under MOHAN LAL BIMBRA 2014.11.03 13:48 I attest to the accuracy and authenticity of this document Chandigarh FAO No. 3353 of 2011 3 Section 163-A of the Act is not maintainable. For this purpose, he has relied upon judgment of Hon'ble the Supreme Court of India in Ningamma and another v. United India Insurance Co. Limited, 2009(3) RCR (Civil)
435. Another submission made by counsel is that the policy obtained by Gagan, the registered owner is a package policy and he paid special premium of Rs.50.00 in order to secure personal accident cover for the owner-driver. It is argued that as Sanjay was neither the registered owner of the vehicle nor he is the insured as per policy which stood in the name of Gagan, in view of the terms and conditions of the comprehensive policy for two wheeler allowing personal accident cover for owner-driver to the extent of Rs.1,00,000.00 on payment of special premium, the legal heirs/dependents of Sanjay cannot be held entitled to compensation even to the extent of Rs.1,00,000.00 which benefit was available only to registered owner and insured named in the policy. In support of his contention, he has pointed out the provisions in Section III of Clause (c) pertaining to personal accident cover for owner-driver of the package policy. It is further argued that the expression 'owner-driver' must be understood as owner who is capable of driving and who is driving the vehicle at the given time and nothing else. In addition, it is submitted that it shall not be understood as owner/driver (owner or driver).
Counsel for the contesting respondents/claimants has submitted that the judgment passed by Hon'ble the Supreme Court in Ningamma's case (supra) cannot enure to benefit of the appellant as the deceased was an employee of the owner of the motor vehicle and was authorized by the MOHAN LAL BIMBRA 2014.11.03 13:48 I attest to the accuracy and authenticity of this document Chandigarh FAO No. 3353 of 2011 4 owner to drive said vehicle. It is argued that in para 18 of the judgment in Ningamma's case (supra) in the concluding lines, the Court has said that the deceased cannot be held to be employee of the owner of the motorbike although he was authorized to drive the said vehicle by its owner and, therefore, he would step into the shoes of the owner of the motorbike.
Counsel has further argued that in the written statement filed by the insurance company, no such plea has been raised with regard to liability of the insurance company being limited to the extent of Rs.1,00,000.00, in view of personal accident cover for owner-driver, therefore, no such plea of the appellant can be entertained that the owner- driver can become entitle to claim compensation only to the extent of Rs.1,00,000.00 I have heard counsel for the parties and perused the records. Indisputably, the application for compensation was filed by Poonam and the minor child of deceased Sanjay for grant of compensation under Section 163-A of the Act which deals with structured formula for payment of compensation and the claimants are not under an obligation to prove rash and negligent driving of offending vehicle. The only requirement is that the victim sustained injuries out of use of motor vehicle. However, in view of clear language used in Section 163-A of the Act, liability to pay can be fastened upon the owner or the authorized insurer in case of death or permanent disablement due to accident arising out of the use of motor vehicle, the compensation, as indicated in the second schedule.
Poonam, the widow of the deceased appeared in the witness box and stated that her husband Sanjay was learning the work of inverter MOHAN LAL BIMBRA 2014.11.03 13:48 I attest to the accuracy and authenticity of this document Chandigarh FAO No. 3353 of 2011 5 and batteries repair in Palika Bazar, Rohtak and was earning Rs.3,200/- per month. Gagan, the registered owner and insured of motor cycle bearing registration No. HR-12J-8006 has deposed that Sanjay was employed with him at a salary of around Rs.3,200/- per month. On 13.05.2008, he had taken his motor cycle with the request that he was getting late and he be allowed to take the motorcycle because earlier also, such occasion arose. It is further deposed that Sanjay was having a valid driving licence so he gave the motor cycle to him. During night, he received a telephonic message that Sanjay met with an accident with a truck. The witness was cross examined by counsel representing the insurance company but there was no challenge to his testimony that Sanjay borrowed motor cycle of Gagan for going to his house with the request that he was getting late. In view of unchallenged testimony of Gagan, it becomes an admitted position of the case that Sanjay borrowed the motor cycle from Gagan and, therefore, stepped into shoes of Gagan, the registered owner of the vehicle.
The question now arises 'whether the respondents can take advantage of the observations in para 18 of Ningamma's case (supra) that as the deceased was an employee of the owner of the motor vehicle, he does not step into shoes of the owner to negate claim of the applicants for compensation.' Admittedly, Sanjay was not employed by Gagan for driving the motor bike even if he was working with Gagan in connection with repair of batteries and inverters etc. As Sanjay was not employed as a driver on the vehicle in question, the claimants cannot take any advantage of the observations in the concluding lines of para 18 to contend that Sanjay being an employee did not step into the shoes of Gagan to disentitle them to seek MOHAN LAL BIMBRA 2014.11.03 13:48 I attest to the accuracy and authenticity of this document Chandigarh FAO No. 3353 of 2011 6 compensation under section 163-A of the Act. I stand fortified in my observations from the judgment of Hon'ble the Supreme Court of India in New Assurance Company Limited v. Sadanand Mukhi and others, 2009 (1) RCR (Civil) 817.
This brings the Court to another important aspect, 'whether the respondents are entitled to get benefit of contractual obligation pertaining to personal accident cover for owner-driver.' The plea of the appellant is that in Section III of the package policy, there are certain conditions to be satisfied i.e. the owner-driver is the registered owner of the vehicle insured and also the insured named in the policy. Counsel for the appellant produced before this Court TWO WHEELER PACKAGE POLICY of Bajaj Allianz General Insurance Company Limited. This document was not produced before the Tribunal during course of evidence. There is nothing on record to suggest if any document was signed by Gagan, the registered owner to bind himself that the personal accident cover is subject to the aforesaid conditions. Due to failure of insurance company to lead evidence in this regard, I do not find merit in the contention of counsel for the appellant that though on one hand, Sanjay stepped into the shoes of owner to disentitle his legal representatives to claim compensation under Section 163-A of the Act but on the other hand, they cannot be allowed benefit of personal accident cover for owner-driver in the light of certain conditions prescribed in Section III pertaining to personal accident cover for owner- driver in the two wheeler package policy. It is further not clear on record as to when this two wheeler package policy was prepared by the insurance company and how it can bind the package policy obtained by Mr. Gagan. MOHAN LAL BIMBRA 2014.11.03 13:48 I attest to the accuracy and authenticity of this document Chandigarh FAO No. 3353 of 2011 7
As has been notice hereinbefore, Gagan appeared in the witness box and was cross-examined. During cross examination of Gagan, no such fact has been elicited that personal accident cover for owner-driver of Rs.1,00,000.00 obtained by him on payment of extra premium of Rs.50.00 is subject to any condition whatsoever much less there being a condition that the owner-driver means the registered owner of the vehicle and the insured named in the policy. In this view of the matter, I am of the considered opinion that Sanjay having stepped into the shoes of the owner of the vehicle, met with an accident out of use of the motor vehicle, therefore, the legal representatives of Sanjay shall be entitled to an amount of Rs.1,00,000.00 for death of Sanjay.
In view of what has been discussed hereinabove, the appeal is partly allowed, the award passed by the Tribunal is modified and the respondents/claimants shall be entitled only to an amount of Rs.1,00,000.00 along with interest at the rate ordered by the Tribunal, in enforcement of contractual liability created on payment of separate premium. Out of the awarded amount, Rs.80,000.00 shall be shared equally by Poonam and Bhavishya (minor) and Rs.20,000.00 shall be payable to the mother of the deceased.
(Rekha Mittal) Judge 16.10.2014 mohan MOHAN LAL BIMBRA 2014.11.03 13:48 I attest to the accuracy and authenticity of this document Chandigarh