Vide P.No.230302/31/04/04917 vs Kirtikumar
2013 Latest Caselaw 396 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                     
                   NAGPUR BENCH, NAGPUR.




                                            
                  First Appeal No.505 of 2013




                                           
    United India Insurance Co.Ltd.,
    Through its Branch Manager,
    United India Insurance Co.Ltd.,
    Mahajanwadi Chowk, Yavatmal,
    Tahsil and District Yavatmal




                                 
    (Vide P.No.230302/31/04/04917
    Valid from 10/2/05 to 9/2/06).
                      ig                     ..... Appellant.

                            :: versus ::
                    
    1. Kirtikumar S/o Mannalalji Lunawat,
    Aged about 30 years,
    Occupation Business,
    R/o Ner, Tahsil Ner,
    District Yavatmal.
      


    2. Mahavir S/o Mannalalji Lunawat,
   



    Aged about 30 years,
    Occupation Business,
    R/o Asegaondevi,
    Tahsil Babhulgaon,





    District Yavatmal,
    (Owner of TVS-Victor
    Motorcycle No.MH-29/H-3247).            ..... Respondents.

    ==========================================





           Shri M.R.Kalar, counsel for the appellant.
           Shri J.H.Kothari, counsel for R-1.
    ==========================================



                 CORAM          : A. P. BHANGALE, J.

RESERVED FOR : 03.12.2013.

PRONOUNCED FOR : 24.12.2013.

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    ORAL JUDGMENT.




                                              

1. This appeal is preferred, against judgment and award

dated 26.11.2012, passed by the learned Member, Motor

Accident Claims Tribunal, Yavatmal, in Motor Accident

Claims Petition No.198 of 2006, by the appellant - United

India Insurance Co.Ltd., Yavatmal.

2. The facts in brief giving rise to file the present

appeal, are thus :

The claim application was filed under Section 163-A

of the Motor Vehicles Act, 1988 (for short, "the said

Act").

3. It was the case of claimant - Kirtikumar Lunawat, that

on 3.6.2005, at about 02:30 p.m., while he was going

from Amravati side to Ner Bus Stand, motorcycle bearing

Registration No.MFZ-402, came from opposite side

suddenly, and gave violent dash to the claimant, near

Navakar Provisions, Amravati Road, Ner. In the result, the

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claimant suffered fracture to his right radius lower end

with fracture collis with lacerated wound to the scalp. He

was shifted to Rural Hospital, Ner and thereafter taken to

V.N.G.M.C. Hospital, Yavatmal and then to Dr. Anoop

Kothari, Hospital. Even, when the claim application was

filed, he was taking the medical treatment from Dr. Ajit

Phadke and Dr. Dipak Dabhere at Yavatmal.

It was further the case of the claimant, that when the

fracture was caused to his right hand as a result of the

accident, he lost working power of right hand and

became permanently disabled while he was 27 years old.

He used to earn sum of Rs.6,000/- per month. The

assessment of his permanent disability was 25%.

Therefore, he had restricted his claim to Rs.1,00,000/- in

his claim application.

According to the claimant, offending motorcycle TVS-

Victor bearing Registration No.MH-29-H-3247 was owned

by Mahavir S/o Mannalalji Lunawat and was insured with

appellant - United India Insurance Co.Ltd., Yavatmal, and

the accident occurred during validity period of the

insurance policy.

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4. The appellant - United India Insurance Co.Ltd., denied

its liability to pay the compensation on the ground that

motorcycle TVS-Victor bearing Registration No.MH-29-

H-3247 was not offending vehicle while motorcycle

bearing Registration No.MFZ-402, which according to the

claimant came suddenly, and gave violent dash to the

claimant. But the driver, owner and the Insurance

Company of the offending motorcycle were not joined as

party in the claim petition. Therefore, according to the

appellant, the award could not have been passed against

the appellant as the appellant had no concern with the

offending motorcycle.

5. The learned counsel appearing for the appellant

contended, that the Tribunal erred in law to impute the

liability upon the appellant particularly when the owner,

driver and insurer of the offending motorcycle were not

joined as party to the claim application.

Even according to the claimant, as the motorcycle

bearing Registration No.MFZ-402, came from opposite

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side suddenly, and gave violent dash to the claimant,

which resulted in injuries to the claimant. But the

claimant did not bother to join owner, driver and the

insurer of the offending motorcycle in the proceedings

before the Tribunal. Therefore, it was not just and proper

on the part of the Tribunal to impute the liability upon the

appellant Insurance Company.

6.

Further, according to the appellant, the claimant

himself was driving the motorcycle, belonging to his

brother, i.e. TVS-Victor bearing Registration No.MH-29-

H-3247. The claimant was a wrong doer and he could not

have claimed the compensation if accident occurred

because of his own rashness and negligence by using

motorcycle belonging to his brother and insured by the

appellant.

7. According to the appellant, under the Insurance

Policy, in respect of motorcycle TVS-Victor bearing

Registration No.MH-29-H-3247, which claimant was

driving, was insured with the appellant, but the Insurance

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Policy did not cover the risk of the driver of the insured

vehicle driving motorcycle without having valid motor

driving licence and when the claimant was not "third

party" while using motorcycle i.e. TVS-Victor bearing

Registration No.MH-29-H-3247, which in fact belonged to

his real brother.

8. Thus, according to the learned counsel for the

appellant, when the facts stated revealed that offending

motorcycle was bearing Registration No.MFZ-402, which

suddenly came, and gave dash to the motorcycle driven

by the claimant, it was necessary for the claimant to join

driver, owner and insurer of the offending motorcycle i.e.

motorcycle bearing Registration No.MFZ-402, which

according to him gave dash to him but this was not done.

Secondly, the Insurance Policy of the motorcycle TVS-

Victor bearing Registration No.MH-29-H-3247 did not

cover the risk of the claimant as driver as he was not

"third party" but gratuitously driving motorcycle of his

real brother risking the accident.

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9. It is true that under Section 163-A of the said Act, the

owner of the motor vehicle of the authorized insurer, is

liable to pay the compensation for the accident arising

out of the use of the motor vehicle, but the Second

Schedule with reference to Section 163-A of the said Act,

provides compensation for "third party". The heading

itself would be clear that the Second Schedule is only

with reference to Section 163-A of the said Act, a

Schedule for claim for compensation by "third party" in

respect of fatal accident or injury cases. The claimant

using motorcycle of his brother was not a "third party" to

claim compensation from his brother whose motorcycle

he was using. It must be noted that the Motor Accident

Claims Tribunal are constituted to adjudicate the claims

for compensation in respect of the accidents involving the

bodily injury to the person arising out of use of the

motorcycle or damages to the property of a "third party".

The compensation may be claimed by the person who has

sustained the injury or by the owner of the property

which was damaged claimable by injured victim or by any

duly authorized person or legal representatives of the

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victim who died in the motor vehicle accident right to

claim compensation has to be considered in the

background of entitlement of the person claiming

compensation for injury arising out of the motor vehicle

accident.

10. If we examine the facts and circumstances of the

present case, the case of the claimants is, that he was

driving the motorcycle, which was dashed by another

offending motorcycle. The foundation of the claim is, that

another motorcycle bearing Registration No.MFZ-402,

came from opposite side suddenly, and driven rashly and

negligently gave violent dash to the claimant. In other

words, it was not the case of the claimant, that the

motorcycle which he was driving, was responsible for the

accident. In other words, the claimant was not blaming

his brother as owner of the offending motorcycle while

claiming compensation from the appellant as insurer for

the motorcycle of his brother.

11. Section 163-A of the said Act, is no doubt, the special

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provision on the basis of the pre-structured formula in

Second Schedule but it is for to provide compensation to

the "third party" victims, although "third party" victims

need not prove negligence or tortuous act.

In the present case, the claimant was not a "third

party" victim from the view point of owner and insurer of

motorcycle which the claimant was driving. The claimant

did not join the driver, owner and insurer of the offending

motorcycle bearing Registration No.MFZ-402, as party to

the claim proceedings, therefore, the omission on the

part of the claimant to join driver, owner and insurer of

the offending motorcycle as party is a fatal for claim

compensation for bodily injury caused to him, because on

his own showing according to claimant offending

motorcycle was motorcycle bearing Registration

No.MFZ-402, and not the motorcycle bearing Registration

No.MH-29-H-3247, which he was driving. Furthermore,

according to the appellant, when the owner of the

motorcycle insured by it handed over motorcycle to

another person who did not hold valid driving licence. It

was the case of the willful infringement of violation of

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insurance contract by the owner of the motorcycle

insured by it. In any event, therefore, the appellant was

not responsible to pay the compensation to the claimant

in this case.

12. It was not the case of respondent No.2 - Mahavir S/o

Mannalalji Lunawat, that he had allowed the claimant as

driver to drive his motorcycle. The claimant was not

"third party" so as to claim the compensation from his

brother as owner of the motorcycle which he was driving

as also from the insurer of the motorcycle which he was

driving. The claimant incurred the grave risk of not

joining the driver, owner and insurer of the offending

motorcycle.

13. The evidence recorded in the proceedings would

reveal, that first informant Vijay Jadhav lodged FIR vide

Crime No.81 of 2005 dated 4.6.2005 at Ner Police Station,

District Yavatmal against the claimant in this case, that

he had overtaken a maruti car by driving his motorcycle

bearing Registration No.MH-29-H-3247 and dashed Hero

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Honda motorcycle bearing Registration No.MFZ-402. The

offence under Sections 279 and 337 of the Indian Penal

Code was recorded against the claimant indicating that

the claimant was prosecuted in criminal case for rash and

negligent driving.

On behalf of the Insurance Company, Branch

Manager at Yavatmal, was examined who deposed the

Insurance Policy (Exh.54) was in premium of Rs.415/-

towards damages to the vehicle and "third party"

premium was Rs.160/- and additional payment of Rs.50/-

was towards personal accident to owner cum driver

covering the risk of Rs.1,00,000/-, but there was no

premium for risk of the person other than the owner

under the policy. In other words, therefore, the insurance

policy (Exh.54) upon perusal of it would indicate that the

policy covered use of the vehicle for any purpose other

than hire or reward. Therefore, brother of the owner of

the motorcycle bearing Registration No.MH-29-H-3247

hirer of the vehicle was not covered under the policy.

14. It is not the case of the claimant that he was holding

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valid driving licence while he was driving the vehicle of

his brother. His evidence is silent about it. That being so,

the claimant was not entitled to claim the compensation

either from his brother or insurer of his brother's vehicle.

He could have claim the compensation from the owner,

driver and insurer of the offending motorcycle which

according to him dashed his motorcycle as "third party"

but he did not. The claimant had failed to plead and

prove right to claim compensation as "third party".

15. In the facts and circumstances of the present case,

therefore, the appellant was wrongly held liable to pay

the compensation to the claimant. The claim application

ought to have been dismissed in the facts and

circumstances of the case.

16. This Court in the case of HDFC Chubb General

Insurance Co.Ltd. ..vs.. Shantidevi Rajbalsingh

Thakur and another, reported at 2008 ACJ 1280,

considered the meaning of the term victim in paragraph

No.44 and held, that a person who himself is negligent

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and on whose account even the owner, would not be

vicariously liable to pay the compensation. In substance,

therefore, if a person has failed to observe care and

caution and owner of the motor vehicle had not taken

insurance cover by a special contract to cover such

gratuitous driver allowed to use the motor vehicle, insurer

of such vehicle would not be liable to compensate such

gratuitous driver allowed by the owner of the vehicle as

such gratuitous driver is not covered within the meaning

of "third party" contemplated in Second Schedule. In this

case, therefore, the claimant was not entitled to claim the

compensation from his brother (owner of the motorcycle

which claimant was driving) and also the insurer

(appellant) particularly when the claimant was negligent

to join the owner, driver and insurer of the offending

motorcycle as party to the proceedings against whom he

could have claimed as "third party".

17. In view of above, the appellant - United India

Insurance Company Limited, was not liable to pay the

compensation to the claimant when the risk was not

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covered under the insurance policy contract. Hence, the

impugned judgment and award needs to be set aside.

18. In the result, the appeal is allowed. The impugned

judgment and award dated 26.11.2012, passed by the

learned Member, Motor Accident Claims Tribunal,

Yavatmal, in Motor Accident Claims Petition No.198 of

2006, is hereby set aside. There shall be no order as to

costs.

JUDGE

!! BrWankhede !!

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