Bombay High Court
Bajaj Allianz General Insurance ... vs Shaikh Ashabee Shaikh Lala Alias ... on 24 July, 2017
Bench: P.R. Bora
1 FA 4204/2016
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.4204 OF 2016
Bajaj Allianz General
Insurance Co. Ltd.,
Through its Branch Manager
/ Authorized Signatory,
2nd Floor, Rajendra Bhavan,
Adalat Road, Next to LIC
Building, Aurangabad
= APPELLANT
(Orig. Resp. No.2)
VERSUS
1. Shaikh Ashabee W/o.
Shaikh Lala Alias Akil,
Age: 26 years,
Occu. Household,
2. Shaikh Shahana D/o.
Shaikh Lala Alias Akil,
Age: 6 years,
3. Shaikh Suhana D/o.
Shaikh Lala alias Akil,
Age: 3 years,
4. Shaikh Ayas S/o.
Shaikh Lala alias Akil,
Age: 3 years,
No.2 to 4 are Minors
U/g. Of mother petition
no.1 Shaikh Ashabee
5. Shaikh Rubabee W/o.
Shaikh Najir,
Age: 59 years,
Occu. Household,
6. Shaikh Najir S/o.
Shaikh Wajir,
Age: 69 years, Occu. Nil,
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2 FA 4204/2016
All R/o. Chinchwadgaon,
Tq. Wadwani,District Beed
7. Santosh S/o. Vaijnath
Munde,
Age: 28 years,
Occu. Business,
R/o. Chinchwadgaon,
Tq. Wadwani,Dist. Beed
= RESPONDENTS
(Resp.No.1 to 6 -
Orig. Claimants
Resp. No. 7 -Orig.
Resp. No.1)
-----
Mr. Mohit Deshmukh, Advocate h/f.Mr.S.G.Chapalgaonkar
Advocate for Appellant;
Mr.R.B. Bhosale, Advocate for Respondent Nos.1 to 6;
Mr.S.R. Kedar, Advocate for Respondent No.7
-----
CORAM : P.R.BORA, J.
DATE :
24 th
July,2017.
ORAL JUDGMENT:
1) Heard. Admit. With consent of leaned
Counsel appearing for the parties, taken up for
final disposal.
2) Appellant insurance company has filed
the present appeal taking exception to the
judgment and Award passed by the Motor Accident
Claims Tribunal, Mazalgaon (hereinafter referred
3 FA 4204/2016
to as the Tribunal) in MACP No.13/2013 on 28th
June, 2016.
3) Present Respondent Nos. 1 to 6 had filed
the aforesaid claim petition, claiming
compensation on account of death of one Shaikh
Lala in a vehicular accident happened on 1st
July, 2011. It was the case of the claimants
before the Tribunal that deceased Shaikh Lala
when was proceeding on a motorcycle bearing
registration No.MH-44-F-6853 along with Shri
Santosh Mundhe, i.e. owner of the said
motorcycle, the said motorcycle was dashed by one
unknown vehicle and in the accident so happened,
Shaikh Lala died on the spot.
4) As stated in the claim petition, age of
the deceased on the date of the accident was 25
years and he was working as labour and used to
earn around Rs.3,000/- per month. The claimants
had, therefore, claimed the compensation
amounting to Rs.3,91,000/- from the owner and
4 FA 4204/2016
insurer of the motorcycle.
5) The claim petition was resisted by the
insurance company mainly on the ground that the
petition itself was not maintainable against the
appellant insurance company since the insurance
policy in respect of the offending vehicle was
not covering the risk of the deceased. The
defence so raised by the insurance company was,
however, turned down by the Tribunal and the
insurance company has been held liable to pay the
amount of compensation to the claimants. The
tribunal has determined the amount of
compensation to the tune of Rs.4,40,000/- and has
directed the owner and insurer of the said
motorcycle to pay the amount of compensation.
Aggrieved by, the appellant insurance company is
in appeal before this Court.
6) Shri Deshmukh, learned Counsel appearing
for the appellant, submitted that the Tribunal
has grossly erred in appreciating the relevant
5 FA 4204/2016
legal provisions, under the Motor Vehicles Act,
because of which an illegal award has been passed
against the appellant Insurance Company. The
learned Counsel submitted that admittedly, the
deceased himself was riding the said motorcycle
and as such he does not come withing the purview
of term 'person' within Section 147 of the Act.
The risk of deceased was, thus, not covered by
the insurance policy pertaining to the said
vehicle, the learned counsel added.
7) The learned Counsel further submitted
that though a witness was examined by the
appellant insurance company and the insurance
policy and its terms and conditions were duly
proved, the learned Tribunal has failed in
appreciating the terms of the insurance policy
and has drawn some wrong inferences, thereby
holding the insurance company also liable to pay
the amount of compensation.
8) In order to support the contentions
6 FA 4204/2016
raised by him, the learned Counsel, relied upon
the two judgments of the Hon'ble Apex Court first
in the case of Ningamma and Anr. Vs. United India
Insurance Co. Ltd. - AIR 2009 SC 3056 and another
in the case of New India Insurance Company Ltd.
vs. Sadanand Mukhi and Ors. - AIR 2009 SC 1788.
9) Shri Thombre, learned Counsel appearing
for the original claimants, supported the
impugned judgment and award. The learned Counsel
submitted that the deceased was, at the relevant
time, riding the motorcycle under the authority
and under the directions of the owner of the said
motorcycle and as such, his risk was perfectly
covered by the insurance policy. The learned
Counsel, relying upon the judgment of the learned
Single Judge of this Court (Coram:
A.V.Nirgude,J.) in the case of Walmik Devram
Patil and Anr. Vs. Gulab Daga Patil and Anr. -
First Appeal No.2655/2015 decided on 26th August,
2016, submitted that in view of the observations
made and the conclusions recorded in the said
7 FA 4204/2016
judgment, no fault can be found in the judgment
and award impugned in the present appeal. The
learned Counsel further submitted that the risk
of the deceased was fully covered by the
insurance policy and as such, the Tribunal has
rightly held the appellant insurance company
liable to pay the amount of compensation.
10) Shri S.R.Kela, learned counsel appearing
for Respondent No.7, also supported the impugned
judgment and award. He adopted the arguments
advanced by Shri Thombre, leaned Counsel
appearing for the claimants. Placing reliance on
the same judgment of the learned Single Judge of
this court he submitted that there is no
substance in the appeal filed by the appellant
insurance company and, therefore, prayed for
dismissal of the appeal.
11) I have carefully considered the
submissions made by the learned Counsel appearing
for the respective parties. It is not in dispute
8 FA 4204/2016
that the deceased Shaikh Lala was riding the
motorcycle owned by present Respondent No.7, when
the alleged accident happened. Deceased Shaikh
Lala had thus stepped into the shoes of the owner
of the vehicle. The question is in such
circumstances, whether the legal representatives
of deceased Shaikh Lala can claim compensation
under Section 163-A of the Motor Vehicles Act ?
12) The similar issue was raised before the
Hon'ble Apex court in the case of Ningamma and
Anr. Vs. United India Insurance Co. Ltd. (cited
suupra). In the said matter, a person by name
Ramappa was travelling on a Hero Honda
Motorcycle, which he had borrowed from its real
owner for going from Ilkal to his native place
Gudur. When the said motorcycle was proceeding
on Ilkal-Kustagl, National Highway, a bullock
cart proceeding ahead of the said motorcycle
carrying iron-sheet suddenly stopped and
consequently said Ramappa, who was proceeding on
the said motorcycle dashed against it.
9 FA 4204/2016
Consequent to the aforesaid accident, Ramappa
sustained fatal injuries over his vital part of
body and on the way to Govt. Hospital, Ilkal, he
died. The motorcycle, which the deceased was
riding at the time of the accident, was owned by
one Parnagouda and insured with United India
Insurance company. The legal heirs of deceased
Ramappa filed a claim petition under Section 163-
A of the Motor Vehicles Act, claiming
compensation from said Parnagouda, and United
India Insurance Company. Though the claim
petition was resisted on the ground of
maintainability of the said petition under
Section 163-A of the Act, the Tribunal held the
owner and insurer of the said motorcycle
responsible to pay the amount of compensation to
the legal heirs of said Ramappa. The insurance
company then preferred an appeal before the High
court of Karnataka, which came to be allowed and
while allowing the appeal, the Karnataka High
Court held that the claim petition before the
Tribunal was not maintainable under Section 163-A
10 FA 4204/2016
of the Act. The Judgment of the Karnataka High
court was challenged by the legal heirs of
Ramappa before the Hon'ble Apex court by filing
Special Leave Petition. While deciding the said
Special Leave Petition, the Hon'ble Apex court
held that the legal heirs of deceased Ramappa
could not have claimed compensation under Section
163-A of the Motor Vehicles Act. The Hon'ble
Apex court held that since deceased Ramappa had
borrowed the vehicle from the real owner, he
stepped into the shoes of the owner of the
vehicle and as such, his legal representatives
could not have claimed compensation under Section
163-A of the Act. The Hon'ble Apex court has
further said that in such a case, the owner could
not himself be a recipient of compensation as a
liability to pay the same is on him.
13) In the instant case also, deceased
Shaikh Lala had borrowed the motorcycle from
Respondent No.7, the owner of the said motorcycle
and had thus stepped into the shoes of the owner
11 FA 4204/2016
of the said motorcycle and as such, the legal
representatives of deceased Shaikh Lala could not
have claimed compensation from the owner of the
said motorcycle. The ratio laid down in the case
of Ningamma and Anr. thus, squarely applies to
the facts of the present case.
14) Similar were the circumstances in the
case of New India Insurance Company Ltd. Vs.
Sadanand Mukhi and Ors. In the said case, son of
the owner of the motorcycle met with an accident
and consequently suffered death in the said
accident. The legal heirs of the deceased,
therefore, filed a claim petition, seeking
compensation under the provisions of the Motor
Vehicles Act. The question raised in the matter
was, whether the deceased in the said case would
come within purview of the term `person' within
section 147 of the Motor Vehicles Act. The
Hon'ble Apex court while deciding the said matter
held that the deceased would not come within the
purview of term `person' within Section 147 of
12 FA 4204/2016
the Act. The Hon'ble Apex court further held
that the insurer would be liable to cover risk of
third party and not others, who would not
otherwise come within the purview thereof. In
the instant case also, deceased Shaikh Lala, who
had borrowed the motorcycle from the real owner,
would not come within the purview of term
`person' within section 147 of the Motor Vehicles
Act. On the contrary, as held by the Hon'ble
Apex court in the case of Ningamma (cited supra),
deceased Shaikh Lala had stepped into the shoes
of the owner of the vehicle. It was thus
evident that the legal heirs of deceased Shaikh
Lala, who had stepped into the shoes of the
owner, could not have claimed compensation under
Section 163-A of the Act.
15) Though the judgment of the learned
Single Judge of this Court (Coram:
A.V.Nirgude,j.) in the case of Walmik Devram
Patil and Anr. Vs. Gulab Daga Patil and Anr. -
First Appeal No. 2655/2015 decided on 26
th
August,
13 FA 4204/2016
2016, was heavily relied upon by the original
claimants, it has to be stated that in view of
the law laid down by the Hon'ble Apex court in
the case of Ningamma and Sadanand Mukhi (cited
supra), the said judgment of the learned Single
Judge cannot be applied in the present case. It
has to be further stated that in the aforesaid
judgment, it appears that the aforesaid judgments
of the Hon'ble Apex court in the case of
Ningamma and Sadanand Mukhi (cited supra), were
not cited by either of the parties.
16) It was further sought to be canvassed by
the learned Counsel appearing for the claimants
that the insurance policy pertaining to the
offending motorcycle was covering the risk of the
owner of the motorcycle as well as driver of the
motorcycle. However, the argument so made also
cannot be accepted. As was pointed out by the
learned Counsel appearing for the insurance
company, the coverage given for owner-driver
means, if the owner himself is driving the said
14 FA 4204/2016
motorcycle.
17) After having considered the term of
`insurance policy' and the law laid down by the
Hon'ble Apex Court in the case of Ningamma and
Anr. and in the case of New India Insurance
Company Ltd. Vs. Sadanand Mukhi (cited supra) I
have no doubt in my mind that the Tribunal has
committed an error in fastening liability on the
appellant insurance company to pay the amount of
compensation to the legal heirs of deceased
Shaikh Lala. No such liability could have been
fastened on the appellant insurance company since
the petition under Section 163-A of the Act
itself was not maintainable.
18) For the reasons stated above, the Award
passed against the appellant insurance company
deserves to be quashed and set aside and is
accordingly set aside. No order as to cost.
Pending civil application, if any, stands
disposed of.
(P.R.BORA)
JUDGE
