The Divn. Manager, United India ... vs Smt. Shilabai Bholu Kalkhor And ...
2021 Latest Caselaw 9987 Bom

  408FA 1390.2009.odt                                1



              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.

                        FIRST APPEAL NO. 1390 OF 2009

  The Divisional Manger,
  United India Insurance Co. Ltd.,
  Nagpur Divisional Office-I,
  Through the Regional Manager,
  Nagpur Regional Office,
  Shankarnagar Square, Nagpur.
                                                         ...APPELLANT
                                              ...(ORIGINAL RESP. NO. 2)

                    Versus

  1. Smt. Shilabai wd/o Bholu Kalkhor,
     aged about 40 years, Occ. Labour,
     R/o Bagar, Tah. Pohari,
     District Shivpuri (M.P.).                 ...ORIGINAL PETITIONER

  2. Satish M. Bhujade,
     age Major, Occ. Business,
     R/o Plot No. 47, Hiwarinagar,
     Nagpur.                                    ...ORIGINAL RESP. NO. 1

                                                          ...RESPONDENTS

  Smt. Mrunal Naik, Advocate for the appellant.
  Shri Asghar Hussain, Advocate for respondent No.1.
  None for respondent No.2.
                    .....

                     CORAM : PUSHPA V. GANEDIWALA, J.
    ARGUMENTS WERE HEARD ON : JULY 14, 2021.
  JUDGMENT IS PRONOUNCED ON : JULY 30, 2021.


  JUDGMENT :

The challenge in this appeal is to the judgment and

award dated 04/12/2007 passed by the Member, Motor

Accident Claims Tribunal, Nagpur in Claim Petition No.

77/2003, whereby the Tribunal has granted compensation of

Rs.1,53,500/- to the claimant along with interest @ 7.5% per

annum from the date of filing of the Claim Petition till

realisation. While passing the said award, the Tribunal has

fastened the liability of payment of compensation jointly and

severally upon the appellant - Insurance Company and the

owner of the offending vehicle.

The facts of the case may be stated as under :

2. The appellant is the Insurance Company with which

the motorcycle bearing No. MH31/X-8222, owned by

respondent No.2 herein, was insured. Respondent No.1 - the

original claimant is the widow mother of the deceased Birju.

Respondent No.2 - the owner of the motorcycle proceeded ex-

parte throughout the proceedings.

3. On 03/10/2002, at about 11:00 pm, while the

deceased Birju was proceeding from Bhandara Road towards

Chhapru Nagar on motorcycle alongwith his friend Ajay as a

pillion rider, one unknown truck gave a violent dash to the

motorcycle, as a result of which, both of them fell down and

sustained grievous injuries. They were hospitalized and

ultimately both of them succumbed to the injuries.

4. Lakadganj Police registered an offence against the

driver of the said unknown vehicle. The widow mother of the

deceased Birju filed a Claim Petition under Section 166 of the

Motor Vehicles Act, 1988 ("MV Act") before the Chairman,

Motor Accident Claims Tribunal, Nagpur against the owner and

the insurer of the motorcycle. The owner, driver and the

insurer of the offending vehicle, i.e., unknown truck were not

joined as party respondents in the Claim Petition. At the time of

incident, the age of the deceased was 20 years and he was

unmarried. It is stated that he was working as a Labourer and

was earning Rs.15,000/- annually. The claimant, being the

mother of the deceased, claimed compensation of

Rs.2,00,000/- towards loss of dependency.

5. During the pendency of the petition, the claimant

converted her Petition under Section 166 into Petition under

Section 163-A of the MV Act.

6. In response to the Claim Petition, the appellant

herein/ original respondent No.2 - the Insurance Company

adopted its reply (Exh.16) to the application under Section 140

of the MV Act as its written statement vide Pursis at Exh.28.

While denying its liability to pay any compensation, the

appellant - Insurance Company, in its specific pleading, stated

that the claimants have deliberately avoided to give proper

details of the Insurance Policy, particularly the date of booking

of Insurance Policy, the terms of the Insurance Policy, the

nature/ type of the Insurance Policy, i.e., whether it was a first

party insurance, comprehensive insurance or third party

insurance.

7. The Tribunal framed the following issues :

"1. Whether deceased Birju died in accident while proceeding on Motorcycle No. MH-31/X-8222 in collusion with unidentified truck ?

2. Whether Motorcycle No.MH-31/X-8222 was insured with Res.No.2 ?

3. Is petitioner entitled to compensation u/s. 163-A of M.V. Act ? If yes, to what extent and from whom ?"

8. The Tribunal recorded evidence as adduced by the

parties. The claimant examined herself at Exh.23, and also

brought on record form AA at Exh.24, F.I.R. at Exh.25, inquest

panchanama at Exh.26, spot panchanama at Exh.27 and P.M.

note at Exh.28. On the other hand, the Insurance Company

examined one Smt. Sudha Maheshkar, Asstt. Manager as RW1

at Exh.30.

9. The Tribunal, on considering the material on

record, recorded the finding that the deceased Birju died in the

accident involving motorcycle bearing No.MH-31/X-8222,

which was insured with the appellant/ Insurance Company, in

collision with an unidentified truck. The Tribunal further held

that as the issue of negligence is not to be examined while

considering the Petition under 163-A of the MV Act, the insurer

and the owner of the motorcycle are jointly and severally liable

to pay compensation to the legal heirs of the deceased. The

Tribunal granted compensation under the following heads :

    Sr. No.                    Particulars                        Amount

       1      Annual income of the deceased                       14,400
              (1200 X 12)

       2      1/3rd deduction for personal expenses                4,800

       3      Proper multiplier applicable is 15                    X 15

                                                                 1,44,000

       4      Loss of love and affection                           5,000

       5      Loss of estate                                       2,500

       6      Funeral expenses                                     2,000

                                    Total Compensation           1,53,500

This judgment of the Tribunal is impugned in this

appeal.

10. Smt. Naik, learned counsel for the appellant/

Insurance Company, argued on the following three aspects :

i) That the learned Tribunal was in error in not

appreciating that the deceased who was himself riding the

motorcycle No. MH31/X-8222 could never be said to be a third

party vis-a-vis the respondent No.2, i.e., the owner and

consequently, the claim u/s 163-A itself was not maintainable.

ii) That the learned Tribunal was in error in not

appreciating that even if, it were to be held that the vehicle in

question was insured with the appellant, the learned Tribunal

was required to proceed on the basis that it was an Act only

policy, in the absence of positive proof and evidence on behalf

of the respondent no.1 or the respondent no.2 that the policy

was a comprehensive risk policy or that it covered wider legal

liability.

iii) That the learned Tribunal was further in error in

not appreciating that the liability in respect of the deceased

was neither required to be covered statutorily nor was there

any evidence regarding any contractual coverage of any such

liability and on the count also, no liability whatsoever could

arise against the appellant.

In support of her submissions, she placed reliance

on the following Authorities :

1) National Insurance Company Limited Vs. Balakrishnan And Another, reported in (2013) 1 SCC 731; and

2) Oriental Insurance Company Limited Vs. Sudhakaran K.V. and others, reported in (2008) 7 SCC 428.

11. On the contrary, Shri Hussain, learned counsel for

respondent No.1, drew attention of this Court to the pleadings

of the appellant/ Insurance Company, and submitted that the

appellant has failed to plead the defence before the Tribunal

which the learned counsel Smt. Naik is trying to argue at the

appellate stage, and therefore, in no case, the appellant shall

be allowed to raise these defences before this Court. He thus

prayed for dismissal of the appeal.

12. I have considered the submissions advanced across

the bar and also considered the above referred citations. The

following points arose for the consideration of this Court :

i) Whether the claim of respondent Nos.1/original claimant is maintainable under the provisions of the MV Act ?

ii) Whether the insurer is liable to pay the compensation in the absence of documents of the Insurance Policy ?

13. First and foremost, the death of the deceased due

to the motor accident involving motorcycle which was insured

with the appellant at the relevant time, has been clearly

established by the claimant. The same is also not seriously

disputed by the learned counsel appearing on behalf of the

appellant - insurer. The only question which needs

consideration in this appeal is with regard to the entitlement of

the legal heir of the deceased for the payment of compensation

under the provisions of the MV Act. I fully agree with the

submission of the learned Counsel Ms. Naik that as the

deceased Birju was driving the motorcycle, he is not a third

party qua its owner. It is also not disputed that the accident

occurred due to the negligence of the unknown truck driver

who gave violent dash to the motorcycle on which deceased

Birju was riding. It is an admitted fact on record that the

deceased Birju was not the owner of the motorcycle. It was

borrowed from his owner. It is nobody's case that the deceased

Birju was at fault while driving the vehicle. Respondent No.1/

original claimant - the mother of the deceased Birju is claiming

compensation under Section 163-A of the MV Act. It is now

well settled position of law that the owner of the vehicle, who

being not the victim of the accident, he or his legal heirs can

not claim compensation from his insurer under Section 163-A

of the MV Act. The Hon'ble Apex Court in the cases of Oriental

Insurance Company Limited Vs. Rajani Devi and others,

reported in (2008) 5 SCC 736, New India Assurance Co. Ltd.

Vs. Sadanand Mukhi, reported in 2009 (2) SCC 417 and

Ningamma and another v/s United India Insurance Company

reported in 2009 (13) SCC 710 held that the liability under

Section 163-A of the MV Act is on the owner of the vehicle, and

a person cannot be both a claimant as also a respondent. Since,

in this case, the deceased Birju had stepped into the shoes of

the owner, the Claim Petition by the heir of deceased Birju is

not maintainable under Section 163-A of the MV Act.

14. The Hon'ble Apex Court in the case of Ningamma

(supra) while disapproving the case of the legal heirs of rider

of the motor cycle for compensation under Section 163-A of the

Act, at the same time, considered the principle of 'just

compensation' and observed that even if in the pleadings no

specific claim was made under Section 166 of the MVA, a party

should not be deprived from getting "just compensation", the

relevant paragraphs from the said judgment are quoted below :

"24. However, the question remains as to whether an application for demand of compensation could have been made by the legal representatives of the deceased as provided in Section 166 of the MVA. The said provision specifically provides that an application for compensation arising out of an accident of the nature specified in sub- section (1) of Section 165 may be made by the person who has sustained the injury; or by the owner of the property; or where death has resulted from the accident, by all or any of the legal representatives of the deceased; or by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be.

34. Undoubtedly, Section 166 of the MVA deals with "just compensation" and even if in the pleadings no specific claim was made under Section 166 of the MVA, in our considered opinion a party should not be deprived from getting "just compensation" in case the claimant is able to make out a case under any provision of law. Needless to say, the MVA is beneficial and welfare legislation. In fact, the court is duty-bound and entitled to award "just compensation" irrespective of the fact whether any plea in that behalf was raised by the claimant or not."

15. It is well settled that the contract of insurance is

based on the terms and conditions between the insurer and the

insured and apart from the third party liability of the Insurance

Company as per the mandatory provisions of the Act, the

liability of the owner or occupier of the vehicle can also be

covered by paying extra premium. In this context, it will useful

to consider the exposition of law in the case of Ningamma

(supra) the Hon'ble Apex Court, in para 30, relying on the

judgment of Rajni Devi (supra) observed that where

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

insurance company would depend upon the terms thereof.

16. Furthermore, recently, in the case of Ramkhiladi

And Another Vs. United India Insurance Company And

Another, reported in (2020) 2 SCC 550, the Hon'ble Apex

Court in somewhat similar facts situation while rejecting the

claim of the claimants under Section 163-A of the MV Act,

being not maintainable, however, in para 7, relying on the

terms and conditions of the contract of insurance held that the

claimants therein are entitled to Rs.1,00,000/- only.

17. Having regard to the aforesaid, what is relevant for

deciding the entitlement for the compensation is the nature of

contract and the terms and conditions enumerated therein. In

the case in hand, it is worthwhile to note that neither the

claimant nor the appellant/ insurer brought on record the

policy of the insurance and what is proved is only the factum of

existence of the contract of insurance. For fixing the liability

upon the Insurance Company to pay compensation to the heirs

of the deceased in the accident, it is necessary to examine

whether the policy is an Act policy or the Comprehensive policy

or whether any extra premium was paid to cover the liability of

the owner and the occupants. The appellant/ Insurance

Company, in its reply, disputed the existence of the contract of

insurance, so also the nature of the policy. The witness Smt.

Maheshkar, who was examined in support of the pleadings of

the appellant/ Insurance Company, however, admitted that the

motorcycle was insured with the appellant/ insurer. The

learned Counsel Ms. Naik submitted that the learned Tribunal

was required to proceed on the basis that it was an Act only

policy, in the absence of positive proof and evidence on behalf

of the respondent no.1 or the respondent no.2 that the policy

was a comprehensive risk policy or that it covered wider legal

liability. It is difficult to concede with the submissions of

learned Counsel for the appellant. The deceased Birju was

admittedly not the owner of the vehicle, and therefore, the

claimant/ the widow mother of the deceased was not expected

to produce a copy of policy on record. As the appellant -

insurer is disputing the nature of contract of insurance as to

whether it is an Act policy or a Comprehensive policy, it is its

duty to place on record the policy document. In this context,

the Hon'ble Apex Court in the case of National Insurance Co.

Ltd. New Delhi Vs. Jugal Kishore And Others, reported in

(1988) 1 SCC 626 expressed disapproval against the conduct of

the Insurance Company, and observed that in all such cases

where the Insurance Company concerned wishes to take a

defence in a Claim Petition that its liability is not in excess of

the statutory liability it should file a copy of the Insurance

Policy along with its defence. For ready reference, the relevant

para, i.e., para 10 of the said judgment is reproduced below :

"10. Before parting with the case, we consider it necessary to refer to the attitude often adopted by the Insurance Companies, as was adopted even in this case, of not filing a copy of the policy before the Tribunal and even before the High Court in appeal. In this connection what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. This Court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. In many cases even the owner of the vehicle for reasons known to him does not choose to produce the policy or a copy thereof. We accordingly wish to emphasise that in all such cases where the Insurance Company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with its defence. Even in the instant case had it been done so at the appropriate stage necessity of approaching this Court in civil appeal would in all probability have been avoided. Filing a copy of the policy, therefore, not only cuts short avoidable litigation but also helps the Court in doing justice between the parties. The

obligation on the part of the State or its instrumentalities to act fairly can never be over-emphasised."

18. The ratio as laid down in the case of Jugal Kishore

(supra) has further been referred to by the High Court of

Judicature At Patna, Ranchi Bench in the case of Dilip Kumar

Saha Vs. Runnu Sarkar and another, reported in 1995 ACJ 353,

wherein in para 6, it has been held as under :

"6. On hearing the rival contentions, I am constrained to observe that in this case the insurance company is trying to defeat the claim of an insured policy holder by pleading procedural technicalities and withholding the primary document like the insurance policy and thereby dragging genuine claimants into prolonged, unwarranted and multiple litigation. It seems that the officers functioning the insurance companies have taken the frivolous litigations as a part of their official duties and they seem to be deriving some pleasure in adopting such process, causing harassment and inconvenience to public having least care about wasteful expenditures of public money involved in such litigations and wastage of court hours which needs to be consumed in more fruitful pursuits. In recent times this tendency of the insurance companies has been repeatedly deprecated by several High Courts as also the Supreme Court as is evident from the observation of the Apex Court in the case of National Insurance Co. Ltd. v. Jugal Kishore, 1988 ACJ 270 (SC) XXXX"

19. Now the question before this Court is whether at

this stage, the appellant would be allowed to place on record

the policy by way of an additional evidence. Considering the

nature of issue involved in this case, the production of policy is

essential to decide the real controversy between the parties.

However, during hearing, the learned counsel Smt. Naik

appearing on behalf of the appellant expressed error on the

part of the Insurance Company for not producing the same

during trial and showed its inability to produce the same on

record. It is the stand of the claimant before the Tribunal that

as the Insurance Company wants to avoid the liability to pay

compensation, the policy is not placed on record. The nature of

policy was the specific defence of the Insurance Company

before the Tribunal and therefore, it was incumbent upon the

Insurance Company to place the same on record. As held by the

Hon'ble Apex Court in the case of Jugal Kishore (supra) where

the Insurance Company wishes to take a defence that its

liability is not in excess of the statutory liability, it should file a

copy of the Insurance Policy along with its defence. The

appellant - Insurance Company has failed to bring on record

the Insurance Policy of the motorcycle. Consequently, I am

constrained to draw an adverse inference against the appellant

and that the appellant is to be held liable to pay compensation

to the claimant, especially, the quantum awarded by the

Tribunal is Rs.1,53,500/- only to the widow mother of the

deceased Birju.

20. The judgements in the case of Balakrishnan (supra)

and Sudhakaran (supra) as relied on by the learned counsel for

the appellant would not be of any assistance to the appellant ,

in as much as, in both the judgments the deceased was not the

owner or the borrower of the vehicle. In the case of

Sudhakaran (supra), the deceased was pillion rider of the

motorcycle while in the case of Balakrishnan (supra), the

deceased was the occupant of the car.

21. For the reasons aforstated, I answer both the points

in favour of the claimant, and therefore, no interference is

warranted in the impugned judgment, even though the same

was delivered on different footing. Resultantly, the appeal

needs to be dismissed and the same is accordingly dismissed

with costs.

JUDGE **** Sumit