Bombay High Court

M/S Shriram General Insurance Co. ... vs Ushabai Vasant Kale And Anr on 22 March, 2021

Bench: Anil S. Kilor

                                            1                    3912-2019-1-FA



                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              BENCH AT AURANGABAD


                              FIRST APPEAL NO. 3912 OF 2019

M/s Shriram General Insurance Company Ltd.,
10003 E-8, RIICO Industrial Area, Sitapura,
Jaipur 302 022 through its Manager (Legal)                       .. Appellant
                                                               (Orig. Respondent)
                   VERSUS

1] Ushabai Vasant Kale,
   Age 48 years, Occu. Labour

2] Vasant Ramchandra Kale
   Aged 56 years, Occu : Labour

      Both R/o Siddharthnagar, Municipal Colony,
      Laltaki Dist. Ahmednagar                                   .. Respondents
                                                                  (Orig. Claimants)

                                            ...
                        Mr. V.N. Upadhye, Advocate for the appellant
                         Mr. U.U. Wagh, Advocate for respondents
                                            ...

                                        CORAM : ANIL S. KILOR, J.
                                        DATE : 22-03-2021

ORDER :

1. This is an Appeal preferred by the Insurance Company

challenging the Judgment and Order passed by the learned Member, Motor

Accident Claims Tribunal, Ahmednagar in MACP no. 367 of 2013, partly

allowing the claim in favour of the claimants and thereby holding the claimants

entitled to get `1,00,000/- after the payment of deficit Court fees stamp, if any,

with interest at the rate of 9% per annum from the date of institution of the

Petition till its realization.

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2. I have heard learned counsel for the respective parties.

3. Brief facts of the present case are that the claimants are the legal

heirs of deceased Nilesh Vasant Kale, who on the date of incidence, was riding

the motorcycle bearing no. MH-16-AX-4025 and his friend Santosh Adagale

was the pillion rider which met with an accident and in the said accident, the

deceased sustained serious injuries and he succumbed to the same.

Thereupon, claim was filed by the claimants for `3,00,000/- under section

163-A of the Motor Vehicle Act, 1988. It is the case of the claimants that

deceased - Nilesh was doing labour work and the motorcycle which he was

riding at the time of accident, is owned by the claimant no. 1 - mother of the

deceased. It is the further case of the claimants that the income of the

deceased was `3000/- per month and his age was 21 years at the time of the

accident and, accordingly, claim of `3,00,000/- was made before the Tribunal.

4. The Tribunal after considering the case of the claimants and also

the case put up by the Insurance Company whereby the Insurance Company

opposed the claim on the ground that because the motorcycle involved in the

accident is owned by the mother of the deceased, the deceased entered into the

shoes of the mother i.e. the owner and, as such, owner cannot claim any

compensation under Section 163-A of the Motor Vehicles Act, 1988 and at the

most, the claimant is entitled for `20,000/- as per the insurance policy.

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5. Learned Tribunal after considering the oral as well as

documentary evidence available on record, partly allowed the claim petition

and thereby granted Rs.1,00,000/- towards compensation along with the

interest vide Judgment and Order dated 28-11-2018. The said judgment and

order is under challenge.

6. Shri Upadhye, learned counsel for the Insurance Company

submits that the claim on behalf of the owner of the vehicle cannot be

considered and it is not permissible under section 163-A. He submits that

because the deceased entered into the shoes of the owner i.e. his mother, no

claim is maintainable at the behest of the owner. In support of his contention,

learned counsel for the appellant relied upon the following judgments :

i) Judgment of the Hon'ble Supreme Court of India in the case of Oriental Insurance Company Ltd. Vs. Rajnidevi1

ii) Judgment of the Hon'ble Supreme Court of India in the case of Ningamma Vs. United India Insurance Co. Ltd.2

iii) Judgment of the High Court dated 13-07-2016 in the case of Iffco Tokio General Insurance Co. Ltd. Vs. Deepakbhai Bhikhabhai Patel3

iv) Judgment of the High Court dated 20-07-2016 in the case of United India Insurance Co. Ltd. Vs. Legal heirs of deceased Barot Bharatbhai Arvindbhai and another4

v) Unreported Judgment of the High Court dated 13-06-2017 passed in First Appeal No. 1329 of 2016 in the case of Bharti AxA General Insurance Co. Ltd. Vs. Shradha w/o. Govind Katruwar and others.

1     (2008) 5 SCC 736
2     LEX (SC) 2009 5 218
3     2017 AAC 155
4     2016 AAC 2162




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7. Per contra, learned counsel for the claimants relied upon the

recent judgment of the Hon'ble Supreme Court of India in the case of

Ramkhiladi and another Vs. United India Insurance Company and another 5

reported in (2020) 2 Supreme Court Cases 550 , wherein the judgment cited by

the learned counsel for the Insurance Company in the case of Ningamma V.

United India Insurance Co. Ltd.6 was considered and held the claimants

entitled for `1,00,000/- towards compensation.

8. To consider the rival contentions of the parties, I have perused

the record and proceedings of the Tribunal and also the impugned judgment.

9. There is no dispute that the motorcycle involved in the accident is

owned by the claimant no. 1 who is the mother of the deceased and on the

date of the accident, the deceased was driving the said motorcycle. There is

also no dispute that in the facts and circumstances of the present matter, the

deceased entered into the shoes of the owner and, therefore, as per the well

settled principles of law, the owner is not entitled to claim any compensation

under section 163-A as held by the Hon'ble Supreme Court of India in the case

of Ningamma (supra).

10. However, the Hon'ble Supreme Court of India in the case of

Ramkhiladi (supra) wherein the Apex Court has held that in the case where

the owner is not entitled to claim any compensation under section 163-A, in

5 (2020) 2 SCC 550 6 (2009) 13 SCC 710

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view of the contract between the insured person and the Insurance Company,

remedy before the Consumer forum is available. It is further held that as per

the contract of insurance, the owner - driver is entitled to a sum of

`1,00,000/-. The relevant paragraph in Ramkhiladi reads thus,

"9.8 However, at the same time, even as per the contract of the insurance, in case of personal accident, the owner - driver is entitled to a sum of Rs.1,00,000/-. Therefore, the deceased, as observed hereinabove, who would be in the shoes of owner shall be entitled to a sum of Rs.1,00,000/-, even as per the contract of insurance. However, it is the case on behalf of the original claimants that there is an amendment to the second schedule and a fixed amount of Rs.5,00,000/- has been specified in case of death and, therefore, the claimants shall be entitled to Rs.5,00,000/-. The same cannot be accepted. In the present case, the accident took place in the year 2006 and even the judgment and award was passed by the learned tribunal in the year 2009, and the impugned judgment and order has been passed by the High Court on 10-05-2018 i.e. much prior to the amendment in the second schedule. In the facts and circumstances of the present case, the claimant shall not be entitled to the benefit of the amendment to the second schedule. At the same time, as observed hereinabove, the claimant shall be entitled to Rs.1,00,000/- as per the terms of the contract of insurance, the driver being in the shoes of the owner of the vehicle."

11. In that view of the matter, I am of the considered view that

because the judgments cited by the Insurance Company of the Hon'ble

Supreme Court of India are considered in the case of Ramkhiladi (supra) and

thereupon, the Apex Court has held the claimant entitled for `1,00,000/-, in

the present matter, no error is committed by the learned Tribunal.

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12. In that view of the matter, I do not find any fault committed by

the Tribunal and accordingly, I am of the opinion that there is no merit in the

present Appeal and the same needs to be rejected. Accordingly, I pass the

following order :

ORDER

I] The Appeal is dismissed.