Smt. Radha Devi & Others vs Oriental Insurance Co. Ltd.
2017 Latest Caselaw 2702 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 41
 

 
Case :- FIRST APPEAL FROM ORDER No. - 2707 of 2004
 

 
Appellant :- Smt. Radha Devi & Others
 
Respondent :- Oriental Insurance Co. Ltd.
 
Counsel for Appellant :- B.P.Verma
 
Counsel for Respondent :- Ajay Singh
 

 
Hon'ble Satyendra Singh Chauhan,J.

Hon'ble Krishna Singh,J.

[Delivered by: Hon'ble Krishna Singh, J.]

This appeal has been filed against the impugned judgment and order dated 16.8.2004 passed by the Motor Accident Claim Tribunal/Additional District Judge, Court No. 5, Agra (hereinafter referred to as 'Tribunal') in Motor Accident Claim Petition No. 843 of 2003 (Smt. Radha Devi and others Vs. The Oriental Insurance Company Ltd.). By means of the impugned judgment and order the Tribunal has proceeded to dismiss the aforesaid petition on following grounds;

I. Petitioners filed the claim petition under Section 163 of the Motor Vehicle Act, 1988 before the Tribunal with the allegations that at the time of accident annual income of the deceased was Rs. 1,10,000/- per annum which is more than the limit (Rs. 40,000/- per annum) as mentioned in the second schedule of Section 163-A of the 1988 Act. Therefore, the claim petition was not maintainable under Section 163-A of the 1988 Act.

II. The evidence adduced by the petitioners in respect of the accident is self contradictory upon which reliance can not be placed.

We have heard learned counsel for the parties and perused the record.

Brief facts giving rise to the instant appeal are that on 24.6.1999 the deceased Kundan Singh was travelling in Tanker No. U.P. 85 9307 being the owner of the aforesaid tanker and supplier of Koltar and he was going to Bah to supply the Koltar in Public Works Department. On returning from Bah, the deceased was sitting on the tool box of the tanker and at that time the tanker was being driven rashly and negligently by the driver as a result of which the deceased fell down on the road from the tanker and died due to injuries sustained. The said accident had occurred due to rash and negligent driving of the driver of the tanker.

The FIR was registered at the police station Rakabganj, Agra. It appears from the record that after investigation of the case, charge-sheet no. 28 of 1999, under Sections 279 and 304-A IPC, was submitted by the Investigating Officer of police station Basai Arela, Agra against the driver of tanker no. U.P. 85 9307. Site map was prepared by the Investigating Officer. Postmortem of the deceased was conducted and postmortem report was submitted by the doctor concerned on 24.6.1999.

Respondent insurance company appeared before the Tribunal and filed its written statement with the pleadings that the claimants have neither any cause of action nor any basis for the claim petition against the respondent insurance company. The claim petition is misconceived on facts and law. The respondent insurance company is neither proper party nor is liable to pay any compensation to the claimants.

It reveals from the record that the appellants filed claim petition no. 843 of 2003 under Section 163-A of the Motor Vehicle Act, 1988 (hereinafter referred to as the '1988 Act') before the Tribunal for awarding the compensation for the death of the deceased.

Learned counsel for the appellants submitted with vehemence that the impugned judgment and order passed by the Tribunal is against the fact and law. The appellants are the legal representatives and dependents of the deceased. The deceased was the owner of the offending tanker no. U.P. 85 9307 and at the time of accident the aforesaid tanker was insured with the respondent insurance company. The deceased met with the accident due to rash and negligent driving of the tanker driver. In the aforesaid circumstances, the respondent insurance company is liable to pay the compensation for the death of the deceased to the appellants.

Per contra learned counsel for the respondent insurance company submitted that under Section 163-A of the 1988 Act claim petition can be filed only by the third party. Owner of the vehicle in question is not a third party in the present case. Learned counsel for the respondent supported the impugned judgment and order passed by the Tribunal and also submitted that owner of the vehicle can only claim provided if personal accident insurance has been taken out but in this case there is no such insurance, as such, appellants are not entitled to get the compensation for the death of the deceased from the respondent insurance company and appeal is liable to be dismissed.

Appellants examined the three witnesses in support of their claim petition including Smt. Radha Devi, PW-1 (wife of the deceased). It appears from the oral and documentary evidence adduced by the appellants before the Tribunal that the deceased met with the accident due to rash and negligent driving of the tanker driver.

Considering the entire facts and circumstances, we are of the opinion that in a claim petition under Section 163-A of the 1988 Act negligence occurred on the part of the deceased or by the driver of the tanker cannot be taken into account for awarding the compensation.

Hon'ble Apex Court in the case of Oriental Insurance Company Ltd. Vs. Rajni Devi, 2008 LawSuit (SC) 1575, has taken the view that it is well settled principle of law that in a case where third party is involved, liability of insurance company would be unlimited - where, however, compensation is claimed for death of owner or another passenger of vehicle, contract of insurance being governed by contract qua contract, claim of insurance company would depend upon terms thereof.

Liability under Section 163-A of the Act is on owner of vehicle as a person cannot be both, a claimant as also a recipient, heirs could not have maintained a claim in terms of Section 163-A of the Act. For the said purpose only terms of contract of insurance could be taken recourse to.

In the present case respondent insurance company has examined Mr. Anoop Kumar, Assistant Manager before the Tribunal as DW-1 and he stated in his statement on oath that vehicle no. U.P. 85 9307 has been insured with policy no. 1764/1999 by Sri Kundan Singh s/o Lalchandra w.e.f. 26.3.199 to 25.3.2000 and therein risk of Kundan Singh was not covered.

Appellants have submitted before the Tribunal the copy of the relevant insurance policy cover note of the aforesaid vehicle and it appears from the contents of the said insurance policy cover note that at the time of accident the aforesaid vehicle was insured with the respondent insurance company. The said insurance policy though covered the risk of third party, driver, cleaner and helper but it do not cover any risk for the bodily injury/death of the owner of the vehicle. In this case it has not been shown that the deceased/owner of the vehicle deposited extra amount for covering the personal insurance.

Sections 147 and 163-A of the 1988 Act does not require an insurance company to assume risk for the death or bodily injury to the owner of the vehicle.

In view of the aforesaid, we are of the opinion that an owner of the vehicle or the legal representatives of the deceased owner can only claim provided if personal accident insurance has been taken out. In this case there is no such insurance, therefore, appellants are not entitled to get the compensation for the death of the deceased from the respondent insurance company.

Hon'ble Apex Court in the case of Deepal Girishbhai Soni & others Vs. United India Insurance Company Ltd., Baroda, 2004 (55) ALR 462 has taken the view that Section 140 of the Act dealt with interim compensation but by inserting Section 163-A, the Parliament intended to provide for making of an award consisting of a pre-determined sum without insisting on a long-drawn trial or without proof of negligence in causing the accident. Chapter XI was, thus, enacted for grant of immediate relief to a section of people whose annual income is not more than Rs. 40,000/- having regard to the fact that in terms of Section 163-A of the Act read with the Second Schedule appended thereto; compensation is to be paid on a structured formula not only having regard to the age of the victim and his income but also the other factors relevant therefor.

It is also evident from the record that finding recorded by the Tribunal about the non-maintainability of the claim petition under Section 163-A of the 1988 Act is based on the law laid down by the Hon'ble Apex Court in the case of Deepal Girishbhai Soni (supra). In our considered opinion the finding given by the Tribunal in respect of the non-maintainability of the claim petition is correct, hence, no interference is required by this Court.

Present F.A.F.O. is devoid of merit and is dismissed, accordingly.

[Krishna Singh,J.]                   [Satyendra Singh Chauhan,J.]
 

 

 
Order Date :- 27.7.2017
 
Shekhar