Delhi District Court
Smt. Shama Parveen vs Mr. Sahid Hussaiin S/O Late Mr. Manzoor ... on 12 October, 2010
IN THE COURT OF SH. ARVIND KUMAR
PRESIDING OFFICER: MACT KARKARDOOMA COURTS :
DELHI
MACT no. 86/10
Unique ID no.02402C0764482007
Date of institution : 04.12.2007
Reserved for orders : 22.09.2010
Judgment pronounced on : 12.10.2010
1. Smt. Shama Parveen, aged about 29 years
W/o Late Mr. Rizwan Hussain
2. Master Aans Hussain, aged about 08 years
S/o Late Mr. Rizwan Hussain
3. Master Humza Hussain, aged about 06 years
S/o Late Mr. Rizwan Hussain
4. Aysha, aged about 04 years
D/o Late Mr. Rizwan Hussain
5. Smt. Raysa, aged about 60 years
W/o Late Mr. Manzoor Hussain
All R/o 106, 68/69A, Gali No. 12, Chauhan Banger,
Seelampur, Delhi
(Petitioner no. 2 to 4 are minor represented through their mother, petitioner
no. 1)
......... Petitioners
VERSUS
1. Mr. Sahid Hussaiin S/o Late Mr. Manzoor Hussain
R/o H. No. 106, 68/69A, Gali No. 12, Chauhan Banger,
Seelampur, Delhi .........(Owner)
2. The New India Assurance Company Limited,
Div. Office-323400, Laxman House,
3/10-11, Asaf Ali Road, New Delhi-110002 .........(Insurance)
............ Respondents
JUDGMENT
1. The petitioners have filed the present petition under Section 163-A of MV Act, claiming compensation of Rs.20 lacs towards the death of one Sh. Rizwan Hussain in a road side accident.
2. The brief facts are that on 18.10.2007, the deceased was going from Gandhi Nagar to Nizamuddin by Motorcycle bearing No. DL-7SAZ-5771, Bajaj Platina and near Taj Enclave, Pusta Road, Geeta Colony the deceased met with an accident as a result of which he suffered fatal MACT no. 86/10 Page no. 1 of 6 injuries. The deceased was removed to LBS Hospital and then was shifted to GTB Hospital where he succumbed to injuries on 27.10.2001.
3. Respondent no. 1 filed written statement stating that the vehicle no.
DL-7SAZ-5771 belonged to him and the deceased has taken the vehicle with his permission and the deceased was having the valid driving license and the vehicle was insured for the period 21.06.07-20.06.08.
4. The respondent no. 2/insurance company filed written statement stating that the vehicle no. DL-7SAZ-5771 was insured with them vide policy no. 323400/31/07/01/00003929, valid for the period 21.06.07- 20.06.08.
5. On the basis of pleadings, following issues were framed.
1. Whether Sh. Rizwan Hussain sustained fatal injuries in an accident involving Bajaj Pletina Motor Cycle No. DL-7-SAZ-5771? OPP
2. Whether the petitioner is entitled to get any compensation, if so, from whom and of what amount?
3. Relief.
6. The petitioner examined herself as PW-1. On the other hand, respondent no. 1 examined himself as R1W1 and respondent no. 2 examined Sh. Amit Kumar Singh, Administrative Officer, New India Assurance Company Ltd. as R2W1.
7. I have heard the counsels for the parties.
8. My findings on the issues are as under:
Issue no. 1:-
9. The PW-1 deposed that on 18.10.07, deceased was going from Gandhi Nagar to Nizamuddin by motorcycle bearing no. DL-7SAZ-5771, Bajaj Platina and near Taj Enclave, Geeta Colony he met with an accident, as a result of which the deceased received fatal injuries and expired on 27.10.07. The PW-1 exhibited the FIR as PW-1/2, postmortem report as PW-1/3. During cross-examination, the PW-1 stated that the MACT no. 86/10 Page no. 2 of 6 vehicle belonged to Sh. Sajid Hussain, the elder brother of the deceased. The respondent no. 1 examined himself as respondent no. 1 and exhibited the cover note of insurance policy as R-1/W1/1 and stated that he was the owner of the vehicle no. DL-7SAZ-5771 and the deceased has taken the vehicle from him and was having valid driving license.
10. I have gone through the FIR where it is recorded that the motorcycle bearing no. DL-7SAZ-5771, Bajaj Platina was found in accidental conditions. The FIR, postmortem report, site plan and the testimony of petitioner taken together, clearly establish that the deceased sustained fatal injuries in the accident involving motorcycle no. DL-7SAZ-5771. There is no evidence in rebuttal on this aspect. The only inference that can be drawn from the documents and testimony of the petitioner is that the deceased died in a road side accident involving abovesaid motorcycle. Accordingly, issue no. 1 is decided in favour of the petitioner and against the respondents.
Issue no. 2 :
11. The petitioner PW-1 deposed that the deceased met with an accident on 18.10.07 when he was going from Gandhi Nagar to Nizamuddin. From the testimony of PW-1 or the FIR, Site plan and mechanical inspection report it is not clear as to how the accident has taken place. From the material on record it is also not clear as to whether the accident is a hit and run case. The FIR records that the vehicle No. DL-7SAZ-5771 was found in accidental condition.
12. Ld. counsel for petitioner contended that u/s 163-A of Motor Vehicle Act, negligence is not required to be proved. Ld. counsel for petitioner further contended that since in the present matter, the insured has taken the comprehensive policy therefore the petitioner is liable to be compensated. Ld. counsel for petitioner has relied upon the following judgments:-
1. Kaushnuma Begum and ors. Vs New India Assurance Co. Ltd. and ors., 2001 ACJ 428
2. Mg. Dir., Bangalore Metropolitan Tpt. Corp. vs Sarojamma and anr., II MACT no. 86/10 Page no. 3 of 6 (2009) ACC 850 (SC)
3. Babu Mathew vs Biju Mathew, II (2009) ACC 260 Kerala High Court.
4. New India Assurance Co. Ltd. vs. Umesh Kumari and ors., II (2010) ACC 88.
13. On the other hand, Ld. counsel for respondent no. 2 contended that the present petition is not maintainable as the deceased was driving the vehicle himself, which belong to respondent no. 1 from whom the deceased had borrowed the motorcycle, therefore, the deceased is not the third party. Ld. counsel for respondent no. 2 relied upon the following case laws:-
1. Ningamma and another vs. United India Insurance Co. Ltd., 2009 SCCL.Com 784.
2. New Indian Assurance Co. Ltd. vs. Sadanand Mukhi and ors. 2009 (1) T.A.C 425 (S.C.)
14. So far as the mandate of Section 163A MV Act is concerned, it is clear that only a third party can maintain a petition under Section 163A of MV Act. In the matter in hand, the deceased was himself driving the vehicle and met with an accident. The deceased was driving the scooter which belonged to respondent no. 1. It is not the case of the petitioner that the deceased was employee of respondent no.1 or that the motorcycle was hit by some other vehicle. In a third party insurance, the insurer and insured have contract between them and both are bound by terms and conditions of the contract. Generally, the insurer agree to indemnify the losses, if any, suffered by the third party on account of the use of the motor vehicle of the insured. It cannot be said that insured can claim compensation for injuries caused to him or his legal heirs can claim compensation for his death under the head of third party. There may be contract between the insurer and the insured with regard to the personal accident of the insured. In that eventuality, the insured can enforce claim against insurer for the damages or injury caused to him.
15. In 'Kaushnuma Begum and ors. Vs New India Assurance Co. Ltd. and ors.', Hon'ble Supreme Court observed that owner of the vehicle shall MACT no. 86/10 Page no. 4 of 6 be liable for damages to a person who suffered on account of accident even if that is no negligence on the part of driver or owner. In "Mg. Dir., Bangalore Metropolitan Tpt. Corp. vs Sarojamma and anr., II (2009) ACC 850 (SC)" Hon'ble Supreme Court observed that it is not necessary for claimant to establish any act of negligence on the part of driver when the petition is filed under 163-A of MV Act. In 'New India Assurance Co. Ltd. vs Umesh Kumar and ors.', Hon'ble High Court observed that the deceased, the son of the owner cannot be treated as third party and further held that the comprehensive policy covered the case of the claimant and therefore insurance company would be liable to pay the compensation.
16. Although in "New India Assurance Co. vs Manishaben Mahendra @ Shanker Joshi and ors." Hon'ble High Court awarded compensation to the Lrs of deceased under similar circumstances, however, Hon'ble Supreme in Ningamma and another vs. United India Insurance company Ltd., reported as 2009 SCCL.Com 78, observed as under:-
'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 a liability to pay the same is on him. This proposition is absolutely clear on a reading of Section 163-A. In the instant case, the deceased was not the owner of the vehicle, in question. He borrowed the said motorbike from its real owner. The deceased cannot be held to be employee of the owner of the motorbike although he was authorized to drive the vehicle by its owner, and therefore, he would step into the shoes of the owner of the motorbike. Accordingly, the legal representatives of the deceased who have stepped into the steps of the owner of the motor vehicle could not have claimed the compensation under Section 163-A.'
17. In HDFC Chubb General Insurance Company Limited vs. Smt. Shanti Devi, Bombay High court has observed that as the deceased driver of the motorcycle has borrowed the vehicle from the the owner and has met with the accident, he cannot come within the definition of the third party.
18. In Oriental Insurance Co. Ltd. vs. Rajni Devi and others, Hon'ble Supreme Court observed that liability under Section 163A MV Act is on the owner of the vehicle and as a person, he cannot be both the claimant as also the recipient and held that claim of the legal heirs of the deceased MACT no. 86/10 Page no. 5 of 6 were not maintainable.
19. It is clearly emerged from judgment passed by Hon'ble Supreme Court in Ningamma and another vs. United India Insurance company Ltd. and other, judgments as referred above that the person borrowing vehicle from the owner cannot be treated as third party. Following the ratio as laid down in Ningamma judgment it is clear that the deceased was not the third party, therefore, the petition filed by the legal heirs of the deceased is not maintainable. Petition is therefore, dismissed. No order as to cost.
20. File be consigned to record room.
Announced in the open (Arvind Kumar)
court on 12.10.2010 Presiding Officer
Motor Accident Claim Tribunal
Karkardooma Courts,Delhi
MACT no. 86/10 Page no. 6 of 6