The Bombay High Court allowed an appeal challenging the judgment and award dated 20/06/2008 passed by the Motor Accident Claims Tribunal, whereby the Tribunal awarded the compensation of Rs.3,69,500/- with interest @ 7.5% per annum from the date of filing of the claim petition till realization of the whole amount to the petitioners. The Court observed that the deceased cannot be said to be a third party with respect to the insured vehicle.
Brief Facts:
On 13/07/2006 the deceased – Prashant Badwaik was riding bike. At the relevant time, while saving the bicycle rider, he applied sudden breaks, due to which the motorcycle of the deceased skidded and he sustained a severe head injury. He was immediately admitted to the Hospital. During the course of treatment, he succumbed to the death. As per the contention of the claimants, the deceased was a skilled Electronic Mechanic and was earning Rs.4000/- per month. As the death of the deceased was caused by an accident, the claimants who are the parents are claiming compensation.
In response to the notice, respondent No.1 – Insurance Company contested the claim on the ground that the alleged accident took place due to the rash and negligent act of the deceased himself. The deceased was not a third party. As per the contention of the Insurance Company as the deceased borrowed the vehicle from the owner so he entered into the shoes of the owner, and therefore, the petitioners are not entitled to any compensation. Respondent No.2 resisted the claim and denied the liability. The tribunal allowed the claim petition of the claimants and granted compensation to the claimants. Hence, the present appeal.
Contentions of the Appellants:
The Learned Counsels for the Appellants argued that the alleged accident took place due to the negligent act of the deceased himself as the motorcycle slipped and turn turtle, therefore, the appellant - Insurance Company is not liable to pay compensation to the claimants. Since the deceased stepped into the shoes of the owner of the motorcycle i.e., respondent No.2, as he was riding the motorcycle, he is not a third party, and therefore, the appellant - Insurance Company is not liable to pay compensation.
Contentions of the Respondent:
The learned counsel for the respondent argued that the claimants have claimed compensation on account of the accidental death of the deceased on the ground that the vehicle was involved in the said accident. In view of that, the tribunal has awarded the compensation. The findings recorded by the Tribunal cannot be faulted with. Further, the Counsel submitted that the deceased had borrowed the motorcycle from the owner which met with an accident. In view of the policy, the limited liability of the owner is accepted.
Observations of the Court
The Court noted that in the present case, the parties are governed by the contract of insurance, and under the contract of insurance, the liability of the insurance company would be qua third party only. In the present case, the deceased cannot be said to be a third party with respect to the insured vehicle. The deceased has to be a third party and cannot maintain a claim against the owner/insurer of the vehicle which is borrowed by him as he will be in the shoes of the owner.
The Court said that as per the contract of insurance, in case of a personal accident, the owner-driver is entitled to a sum of Rs.1,00,000/-. Therefore, the deceased, as observed earlier, entered into the shoes of the owner shall be entitled to a sum of Rs.1,00,000/-, even as per the contract of insurance from the appellant – insurance company. The limited liability of the insurance company is Rs.1,00,000/-. The respondent No.3 (original respondent No.2) owner is liable to pay the rest of the amount of compensation.
The decision of the Court:
The Bombay High Court, allowing the appeal, held that the appellant – insurance company is liable to pay Rs.1,00,000/- along with interest @ 7.5% per annum to the claimants, and respondent No.3 – the owner is liable to pay the rest of the compensation amount along with interest @ 7.5% per annum from the date of application till the realisation of the amount.
Case Title: Oriental Insurance Co. Ltd & Anr. vs Suresh s/o Sidheshwar Badwaik & Ors.
Coram: Hon’ble Justice Urmila Joshi-Phalke
Case no.: FIRST APPEAL NO. 1491 OF 2008
Advocate for the Appellant: Mr. T.T. Mirza
Advocate for the Respondent: Mr. R.M. Pande
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