Bombay High Court
Iffco Tokio General Insurance Co. ... vs Shri Aarti W/O Mohanrao Tabhane ... on 14 March, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
First Appeal No.803 of 2013
And
First Appeal No.1055 of 2014
First Appeal No.803 of 2013
Iffco Tokio General Insurance Co. Ltd.,
Nagpur Divisional Office,
8th Floor, Shriram Shyam Tower,
Kingsway, Near NIT, Nagpur. ... Appellant/
Ori. Respondent
No.2.
Versus
1. Smt. Aarti w/o Mohanrao Tabhane,
Aged about 34 years,
Occupation - Housewife.
2. Ku. Gitarani d/o Mohanrao Tabhane,
Aged about 10 years,
Occupation - Education.
3. Ku. Nishu d/o Mohanrao Tabhane,
Aged about 7 years,
Occupation - Education.
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Respondent Nos.2 and 3, minors,
through their mother and natural
guardian, respondent No.1.
All R/o near Vidyalaxmi School,
Kiran Nagar No.2,
Amravati, Taluka & District Amravati. ... Ori. Petitioners.
4. Shri Rahul Radheshyam Somani,
Age - Adult, Occupation - Owner of
Bajaj Scooter No.MH-30-F-2380,
R/o Tilak Park, Ramdaspeth,
Akola, Taluka & District Akola.
ig ... Ori. Respondent
No.1.
Shri D.N. Kukday, Advocate for Appellant.
Shri P.R. Agrawal, Advocate for Respondent Nos.1 to 3.
First Appeal No.1055 of 2014
1. Smt. Arti w/o Mohanrao Tabhane,
Aged 39 years,
Occupation - Household.
2. Ku. Gitarani d/o Mohanrao Tabhane,
Aged 15 years,
Occupation - Education.
3. Ku. Nishu d/o Mohanrao Tabhane,
Aged 12 years, Occupation - Education.
Appellant Nos.2 and 4 minor,
by their natural guardian mother,
i.e. appellant No.l-Smt. Arti w/o Mohanrao
Tabhane.
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All R/o Near Vidyalaxmi School,
Kiran Nagar No.2, Amravati,
Tahsil & District Amravati. ... Appellants/
Ori. Claimants on
RA.
Versus
1. Shri Rahul Radhesham Somani,
Aged - Major,
Occupation - Owner of Bajaj
Scooter No.MH-30/2380,
R/o Tilak Park, Ramdas Peth,
Akola, Tq. & Distt. Akola.
2. Iffco Tokio Gneral Insurance Company
Ltd., through its Divisional Manager,
Branch At - 701-A, 8th Floor,
Shriram Shyam Tower,
Kingsway, Near NIT, Nagpur. ... Respondents/
Ori. Respondents on
RA.
Shri P.R. Agrawal, Advocate for Appellants.
Shri D.N. Kukday, Advocate for Respondent No.2.
Coram : R.K. Deshpande, J.
Dated : 14th March, 2016
Oral Judgment :
1. The Motor Accident Claims Tribunal at Amravati has
partly allowed Claim Petition No.9 of 2008 filed by the claimants
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under Section 163A of the Motor Vehicles Act, 1988 for grant of
compensation on account of death of one Mohan Tabhane, who
was riding Motor Cycle No.MH-30/F-2380 in a motor vehicle
accident occurred on 2-5-2007, and awarded the compensation
of Rs.1,00,000/- with interest at the rate of 7% per annum from
the date of filing of petition till its realization.
2.
The Tribunal has held that the deceased was neither the
owner of the vehicle nor was in the employment of the owner,
but had borrowed the vehicle from the owner and his risk was
covered by the policy at Exhibit 63 upon payment of premium for
personal accident. The policy restricted such claim to
Rs.1,00,000/-, which has been granted. The Insurance Company
has challenged this award in First Appeal No.803 of 2013,
whereas the claimants have filed First Appeal No.1055 of 2014
for further enhancement.
3. The case of the claimants before the Tribunal was of the
involvement of two vehicles, including Motor Cycle
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No.MH-30/F-2380 , which was being ridden by deceased Mohan
Tabhane, and the another was unidentified. It is not the finding
recorded by the Tribunal that the case was of the involvement of
the two vehicles, but the Tribunal proceeds on the footing that
only the said motor cycle was involved. Undisputedly, the
respondent-Rahul Radheshyam Somani was the owner of the said
motor cycle and the deceased had borrowed it from him. The
Tribunal has further recorded the finding that the deceased was
not riding the motor cycle as an employee of the owner of the
vehicle. The policy in question at Exhibit 63 covers the third
party risk, i.e. an Act Policy, and the premium to cover the risk of
personal accident is also paid.
4. There is no reason to re-open the aforesaid findings of
fact recorded by the Tribunal. In the light of the aforesaid
findings recorded and the undisputed position available on
record, the following points fall for determination :
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(1) Whether the Tribunal was right in entertaining the
claim petition under Section 163A of the Motor Vehicles
Act, 1988 at the instance of the dependents of the
deceased, who met with an accident while driving the
vehicle? and
(2) Whether the Tribunal has committed an error in
holding that the risk of the deceased was covered by the
policy of insurance at Exhibit 63?
5. In order to prove the claim under Section 163A of the
Motor Vehicles Act, the claimants are not required to plead and
prove that the death in respect of which the claim has been
made, occurred due to any wrongful act or neglect or default of
the owner of the vehicle concerned. In the decision of Apex
Court in the case of Ningamma & Anr. v. United India Insurance
Co. Ltd., reported in II (2009) ACC 804 (SC), it was a claim under
Section 163A of the said Act and the deceased had borrowed the
motor cycle from the owner, which met with an accident. The
dependents of the deceased filed a petition. The Court has held
in paras 18 and 19 as under :
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"18. In the case of Oriental Insurance Company Ltd.
Rajni Devi and Others (supra), wherein one of us, namely,
Hon'ble Justice S.B. Sinha is a party, it has been
categorically held that in a case where third party is
involved, the liability of the Insurance Company would be
unlimited. It was also held in the said decision that
where, however, compensation is claimed for the death of
the owner or another passenger of the vehicle, the contract
of insurance being governed by the contract qua contract,
the claim of the claimant against the Insurance Company
would depend upon the terms thereof. It was held in the
said decision that Section 163A of the MVA cannot be said
to have any application in respect of an accident wherein
the owner of the motor vehicle himself is involved. The
decision further held that the question is no longer
res integra. The liability under Section 163A of the MVA
is on the owner of the vehicle. So a person cannot be both,
a claimant as also a recipient, with respect to claim.
Therefore the heirs of the deceased could not have
maintained a claim in terms of Section 163A of the MVA.
In our considered opinion, the ratio of the aforesaid
decision is clearly applicable to the facts of the present
case. In the present case, the deceased was not the owner
of the motorbike in question. He borrowed the said
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motorbike from its real owner. The deceased cannot be
held to be employee of the owner of the motorbike
although he was authorised to drive the said vehicle by its
owner, and therefore, he would step into the shoes of the
owner of the motorbike."
"19. We have already extracted Section 163A of the
MVA hereinbefore. A bare perusal of the said provision
would make it explicitly clear that persons like the
deceased in the present case would step into the shoes of
the owner of the vehicle. In a case wherein the victim died
or where he was permanently disabled due to an accident
arising out of the aforesaid motor vehicle in that event the
liability to make payment of the compensation is on the
Insurance Company or the owner, as the case may be as
provided under Section 163A. But 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
the liability to pay the same is on him. This proposition is
absolutely clear on a reading of Section 163A of the MVA.
Accordingly, the legal representatives of the deceased who
have stepped into the shoes of the owner of the motor
vehicle could not have claimed compensation under
Section 163A of the MVA."
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The only vehicle involved in the present case was the
motor cycle, which the deceased was riding, and it was insured
with the appellant-Insurance Company. The deceased cannot,
therefore, be called as a 'third party'. The deceased was not the
employee of the owner of the motor cycle in question. If it is
accepted that the deceased stepped into the shoes of the owner,
still the claim under Section 163A of the said Act would not be
maintainable at the instance of the dependents of the deceased,
in view of the aforesaid law laid down by the Apex Court. Point
No.(1) is answered accordingly.
6. In case of a contractual policy covering the risk of
personal accident, the terms of the policy will have to be looked
into. Perusal of the policy at Exhibit 63 shows that the basic
premium of Rs.300/- was paid to cover the third party liability
and the additional premium of Rs.50/- was paid to cover the risk
of "PA Owner Driver to the extent of Rs.1,00,000/-". The terms
of 'Personal Accident Cover For Owner-Driver' contained in policy
wording are placed on record at Exhibit 64, and in Section 3, the
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cover is made subject to the following conditions :
(i) The owner-driver is the registered owner of the
vehicle insured therein.
(ii) The owner-driver is the insured named in the
policy.
(iii) The owner-driver holds on effective driving license,
in accordance with the provisions of Rule 3 of the
Central Motor Vehicles Rules, 1989, at the time of the
accident.
The deceased does not fulfill any of the aforesaid
conditions and his dependents cannot, therefore, claim
compensation on the basis of the policy at Exhibit 63 against the
Insurance Company. The Tribunal has committed an error in
holding that the risk of the deceased was covered by the policy at
Exhibit 63 and the dependents of the deceased were entitled to
the compensation of Rs.1,00,000/- along with interest accrued
thereon.
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7. Two policies are produced on record, one is at
Exhibit 28 by the owner of the vehicle, and another is at
Exhibit 63 by the Insurance Company in respect of the same
vehicle. Both the policies were valid on the date of the accident.
The basic premium shown in the policy at Exhibit 28 is of
Rs.300/- to cover the third party risk. The policy at Exhibit 28
does not indicate the payment of premium of Rs.50/- under the
head "PA Owner Driver to the extent of Rs.1,00,000/-" on the
right hand column of the policy. In spite of this fact, the right
hand side column shows the total premium paid as Rs.350/-. In
the policy at Exhibit 63 produced by the Insurance Company, the
premium of Rs.300/- is shown to have been paid for the basic
third party risk, whereas under the head "PA Owner Driver to
cover the risk to the extent of Rs.1,00,000/-", the premium
shown to have been paid is of Rs.50/- and the total premium
paid is shown as Rs.350/-.
8. The owner of the motor cycle in question has filed an
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affidavit in lieu of examination-in-chief stating that the risk of
driver and pillion rider is covered in respect of the motor cycle in
question, and this is not reflected in the policy at Exhibit 28. In
the cross-examination, the ower states that the deceased was not
his employee and was riding the motor cycle as per his
permission. He further states in the cross-examination that while
taking out the insurance policy, the premium to cover the risk of
occupant in the vehicle was not paid. He accepts that the
premium of Rs.50/- was paid towards "Owner-Driver liability to
the extent of Rs.1,00,000/-". He states that the policy was
comprehensive in nature.
9. The Insurance Company has examined its Branch
Manager, one Bhushan Bhalchandra Raut, and the policy at
Exhibit 63 has been produced on record. The witness states that
the Insurance Company has accepted Rs.123/- towards premium
for the own damage, Rs.300/- towards premium for the basic
third party, and Rs.50/- towards premium for personal accident
for owner-driver, and the tax totalling to Rs.531/- has been paid.
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This evidence is in conformity with the policy at Exhibit 63.
10. Shri Agrawal, the learned counsel appearing for the
claimants, has invited my attention to clause 3 in Section 2 under
the heading "Liability to third parties" contained in the policy
working for two wheelers at Exhibit 64, which is reproduced
below :
"Section 2 : Liability to third parties:
1 ...
2 ...
3 In terms of and subject to the limitations of the
indemnity granted by this section to the insured, the
Company will indemnify any driver who is driving the
vehicle on the insured's order or with insured's permission
provided that such driver shall as though he/she was the
insured observe fulfill and be subject to the terms
exceptions and conditions of this Policy in so far as they
apply."
He has urged that the Insurance Company has undertaken to
indemnify any driver, who is driving the vehicle on the order or
insured's permission. He submits that the policy being
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comprehensive in nature, covers the risk of the driver, who was
neither the owner nor the employee.
11. Though both the policies at Exhibits 28 and 63 are
comprehensive in nature covering the risk of own damage, and
third party, and the risk of the owner-driver is covered upon
payment of premium of Rs.50/-, undisputedly, no premium is
paid to cover the risk of the rider of the motor cycle, who
borrowed it from the owner and was not the employee of the
owner. Neither the oral evidence of the owner of the vehicle nor
the policy wording of two wheelers at Exhibit 64 shows that the
risk of the deceased is covered by clause 3, relied upon by Shri
Agrawal. Clause 3 in Exhibit 64 runs with the condition that the
driver was the 'insured' in the policy in terms of the proviso. The
indictment of the Insurance Company for payment of
compensation on account of death of the rider of the motor cycle
by the Tribunal was not proper.
12. In view of above, the following order is passed :
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First Appeal No.803 of 2013 filed by the Insurance
Company is allowed by setting aside the award dated 25-4-2013
passed by the Motor Accident Claims Tribunal at Amravati in
Claim Petition No.9 of 2008 and the said claim petition is
dismissed.
First Appeal No.1055 of 2014 filed by the claimants
seeking enhancement of compensation, does not at all survive
and the same is dismissed.
If the Insurance Company has deposited any amount in
these matters, the same shall be permitted to be withdraw along
with interest, if any accrued thereon.
13. The appeals are disposed of in above terms. No order as
to costs.
JUDGE
Lanjewar, PS/
Nikhare, PA
