Bharti Axa General Insurance Co. ... vs Shradha Govind Katruwar And Ors
2017 Latest Caselaw 5356 Bom

                                     1                 FA NO.1329 OF 2016

           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                     BENCH AT AURANGABAD

                    FIRST APPEAL NO.1329 OF 2016

  Bharti AxA General Insurance
  Company Ltd.,
  through its Manger,
  R/o. Bharti Axa General
  Insurance Company Ltd.
  Dhole Patil Road, Pune
                                                      ...APPELLANT
                                                    (Orig. Resp.No.2)
                   VERSUS

  1.       Shradha W/o. Govind Katruwar
           Age: 28 years, Occu. Household,

  2.       Swara D/o. Govind Katruwar,
           Age: 5 years, Occu. Nil,
           U/g. real mother i.e. resp. No.1

  3.       Varsha W/o. Ramesh Katruwar,
           Age: 49 years, Occu. Household,
           Resp No.1 to 3 all R/o. Manwat,
           Tq. Manwat, Dist. Parbhani
                                                    (No.1 to 3 Orig.
                                                      Claimants)
  4.       Ramesh S/o. Damodhar Katruwar,
           Age: Major, Occu. Business,
           R/o. Main Road, Manwat, Tq. Manwat
           Dist. Parbhani
                                                   (Orig. Resp. No.1)
                                                     RESPONDENT
                                     ...
           Mr. S.S. Patil, Advocate for Appellant.
           Mr. V.V. Bhavthankar, for Respondent Nos. 1 & 2
           Mr. A.N. Patil, for Advocate for Respondent No.3.
                                      ...

                               CORAM: P.R.BORA, J.
                                   ...

           Date of reserving the judgment: 13.06.2017
           Date of pronouncing the judgment: 01/08/2017




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                                         2                 FA NO.1329 OF 2016

  JUDGMENT:

1. Present appeal is filed against the judgment and

award passed by the Motor Accident Claims Tribunal at

Parbhani in M.A.C.P. No.427/2010, decided on 27th of October,

2015.

2. Respondent nos. 1 to 3 herein, who are hereinafter

referred to as the claimants, had filed the aforesaid petition

claiming compensation on account of death of Govind Ramesh

Katruwar who died in a vehicular accident happened on 12th of

June, 2010, having involvement of a Car bearing registration

No.MH-22-H-3116 owned by present respondent no.4 and

insured with the appellant Insurance Company.

3. The material on record reveals that on 12th of June,

2010, deceased Govind Ramesh Katruwar along with his

maternal uncle was proceeding to Shani Shinganapur by a car

bearing registration No.MH-22/H-3116. Deceased was driving

the said car. Near Khadka Phata Shivar, one unknown vehicle

gave dash to the said car from backside and resultantly,

deceased Govind could not control his car and gave dash to the

road divider. In the accident so happened, he received severe

injuries and eventually succumbed to those injuries.

3 FA NO.1329 OF 2016

Respondent nos. 1 to 3 as such filed the claim for compensation

under Section 163A of the Motor Vehicles Act against the owner

and insurer of the aforesaid car.

4. The petition was resisted by the insurance company

mainly on the ground that deceased Govind was driving the

offending car after borrowing it from the real owner and as

such, has entered in the shoes of the owner and hence his legal

heirs were not liable to claim any compensation and the insurer

was not bound to indemnify the deceased or his legal

representatives.

5. The Tribunal, however, turned down the said

objection and held the owner and insurer of the said Car liable

to pay compensation of Rs.5,08,800/- jointly and severally.

Aggrieved thereby, the Insurance Company has filed the

present appeal.

6. Shri Swapnil Patil, learned Counsel appearing for

the appellant Insurance Company, submitted that the Tribunal

has failed in appreciating that deceased Govind was driving the

insured vehicle under the authority of the owner of the said

vehicle and as such, had stepped into the shoes of the owner.

Learned Counsel submitted that the owner of the vehicle could

4 FA NO.1329 OF 2016

not himself be the recipient of the compensation as the liability

to pay the same is on him and, accordingly, the legal

representatives of the deceased who had stepped into the

shoes of the owner of the motor vehicle could not have claimed

compensation under Section 163A of the Motor Vehicles Act.

Learned Counsel submitted that the Tribunal has wrongly relied

upon the judgment of the Honourable Apex Court in the case of

United India Insurance Co. Ltd. Vs. Sunil Kumar and another

( 2013 ACJ 2856). Learned Counsel submitted that the facts

and the issue involved in the said case were altogether

different. In order to support his argument, learned Counsel

relied upon the following judgments:

1) Oriental Insurance Co. Ltd. Vs. Rajani Dev & Ors.

I (2009) ACC 297 (SC)

2) Ningama and another vs. United India Insurance Co.Ltd. ( II (2009) ACC 804 (SC))

3) New India Assurance Co. Ltd. Vs. Sadanand Mukhi and Ors. (AIR 2009 SC 1788)

Learned Counsel prayed for setting aside the impugned

judgment and award as against the appellant Insurance

Company.

7. Shri Bhavthankar, learned Counsel appearing for

the respondents i.e. original claimants, supported the impugned

5 FA NO.1329 OF 2016

judgment and award. Learned Counsel submitted that the

Tribunal has rightly relied upon the judgment of the Honourable

Apex Court in the case of United India Insurance Co.Ltd. Vs.

Sunil Kumar and no interference is, therefore, warranted in the

judgment and award so passed.

8. After having considered the arguments advanced by

the learned Counsel appearing for the parties and on perusal of

the impugned judgment and other material on record, the only

question which falls for my consideration is "whether the legal

representatives of deceased Govind, who was driving the car

after borrowing it from the real owner i.e. his father

( respondent no.1 in the claim petition), which met with an

accident resulting in causing death of said Govind, would be

entitled to compensation under Section 163-A of the Motor

Vehicles Act and whether the Insurance Company would be

liable to pay the compensation in the case."

9. Similar issue has been considered by the

Honourable Apex Court in the case of Ningamma and another

Vs. United India Insurance Company Ltd., cited supra. The

facts involved in the said case were thus:

One Ramappa was travelling on Hero Honda motor cycle

6 FA NO.1329 OF 2016

which he had borrowed from its real owner for going from

Ilakkal to his native place Gundur. On the way, Ramappa met

with an accident and died because of the injuries caused to him

in the said accident. The wife and the minor son of said

Ramappa filed the claim petition under Section 163-A of the

Act, claiming compensation from the owner and insurer of the

said motor cycle. The Tribunal held the claimants entitled for

the compensation of Rs.2,59,800/- from the Insurance

Company of the motor cycle. Against the said judgment and

award the insurance Company preferred an appeal before the

High Court of Karnataka. The High Court allowed the appeal

holding that the claim petition before the Tribunal was not

maintainable as there was no tort feasor involved. Aggrieved

by the judgment of the High Court, the original claimants

preferred Special Leave Petitions before the Honourable Apex

Court.

10. While deciding the said matter, the Honourable

Apex Court held that the heirs of deceased Ramappa would not

have maintained the claim in terms of Section 163A of the

Motor Vehicles Act. It is observed by the Honourable Apex

Court that a bare perusal of Section 163 of the Motor Vehicles

Act would make it explicitly clear that the persons like the

7 FA NO.1329 OF 2016

deceased in the said case would step into the shoes of the

owner of the vehicle. It is further observed that in that case,

the legal representatives of the deceased who had stepped into

the shoes of the owner could not have claimed compensation

under Section 163 of the Motor Vehicles Act.

11. In the instant matter also, deceased Govind, who

happens to be the son of owner of the offending car, had

borrowed the said car from him and while proceeding by the

said car, met with an accident and ultimately suffered death in

the accident so happened. The claim application was then

filed by his wife, daughter and mother against his father and

the Insurance Company. In view of the law laid down by the

Honourable Apex Court in the case of Ningamma and another,

cited supra, the claim so filed by the legal heirs of deceased

Govind under Section 163A of the Act was not liable to be

maintained since deceased Govind had entered in to the shoes

of the owner of the said car and as held by the Honourable

Apex Court, a person cannot be both; a claimant and also a

recipient.

12. Deceased Govind though was not the owner of the

car in question, since he had borrowed the said car from its real

8 FA NO.1329 OF 2016

owner, he cannot be held to be an employee of the owner of

the car 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 said car.

13. In the case of New India Assurance Co.Ltd. Vs.

Sadanand Mukhi and others, wherein the son of the owner was

driving the vehicle and who died in the accident, was not

regarded as third party and in the said case, the Honourable

Apex Court has held that neither Section 163-A nor Section 166

was applicable.

14. Considered the facts of the present case in light of

the law laid down by the Honourable Apex Court in the case of

Ningamma and Sadanand Mukhi, (cited supra), the impugned

judgment and award cannot be sustained. The Tribunal has

relied upon the judgment of the Honourable Apex Court in the

case of United India Insurance Co.Ltd. Vs. Sunil Kumar and

another. It is true that the claim petition in the said matter

was also under Section 163-A of the Motor Vehicles Act,

however, the issue which was for consideration before the

Honourable Apex Court in the said matter was altogether

different.

9 FA NO.1329 OF 2016

15. I reiterate that having regard to the law laid down

by the Apex Court in the case of Ningamma and another and

New India Assurance Company Ltd. Vs. Sadanand Mukhi and

others, (cited supra), the claim petition filed by the legal

representatives of deceased Govind under Section 163A cannot

be held to be maintainable. The Tribunal has erred in

recording a finding that the same was maintainable and has,

consequently, further erred in awarding compensation, holding

the appellant Insurance Company jointly and severally liable to

pay the amount of compensation to the claimants. The

impugned award, therefore, needs to be set aside. In the

result, the following order:

ORDER

1. The Appeal stands allowed. The impugned

judgment and award stands quashed and set aside. The claim

petition, thus, stands dismissed. No order as to the costs.

. Civil Applications, if any, stand disposed of.

(P.R.BORA) JUDGE ...

AGP/1329-16fa