Bombay High Court
United India Insurance Co. Ltd vs Suvarna Dadasaheb Pawar And Others on 6 May, 2024
2024:BHC-AUG:9695
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FA 3017.13.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 3017 OF 2013
United India Insurance Co. Ltd.,
through it's Divisional Manager and authorized
representative and signatory,
Ahmednagar Divisional Office,
Kisan Kranti Building, Ahmednagar,
Dist. Ahmednagar.
.. Appellants
Versus
1. Smt. Suvarna Dadasaheb Pawar,
Age 30 years, Occ. Nil.
2. Master Aditya Dadasaheb Pawar,
Age 9 years, Occ. Education,
through Natural Guardian Res. No.1 - mother.
3. Gopinath Dhondiba Pawar,
Age 68 years, Occ. Labour,
4. Yamunabai Gopinath Pawar
Age 60 years, Oc. Nil.
Respondent Nos. 1 to 4 R/o. Murshatpur,
Taluka Kopargaon, Dist. Ahmednagar.
.. Respondents.
(No. 1 to 4 : Ori. Claimants
No.5 Ori. Opponent No.1.)
Mr. A.B. Gatne, Advocate for the appellant
Mr. A.S. Gandhi, Adv. For respondent No.1.
Respondent No.2 under guardianship of respondent No.1
Respondent Nos. 3 and 4 served.
CORAM : S.G. CHAPALGAONKAR, J.
RESERVED ON : 18th APRIL, 2024.
PRONOUNCED ON : 6th MAY, 2024.
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FA 3017.13.odt
JUDGMENT :
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1. The appellant - original respondent No.2/insurer impugns
the judgment and award dated 30.10.2012, passed by the Motor
Accident Claims Tribunal, Kopargoan, in MACP No. 99 OF 2005. By
consent of parties appeal is taken-up for final hearing.
2. Brief facts giving rise to the present appeal are narrated as
under :-
Late Dadasaheb Pawar, borrowed motorcycle bearing
registration No. MH-15/ V-947 from his brother i.e. respondent No.1. He
went to Khultabad alongwith his friends on said motorcycle. In return
journey, he was riding the motorcycle and his two friends were pillion
riders. Whilst, they were in the vicinity of village Murshadpur, a jeep
bearing registration No. MH-16-e-5287 collided against the motorcycle.
Dadasaheb and one of the pillion riders, suffered fatal injuries. On the
report given by Sachin i.e. Pawar-Brother of dadasaheb, FIR was
registered against the jeep driver.
The respondent Nos. 1 to 4 (original claimants) instituted the claim
under the provisions of Section 163-A of the Motor Vehicles Act 1988
against the owner and insurer of the motorcycle seeking compensation of
Rs. 3 Lakhs. It is contended that late Dadasaheb was an electrical
wireman and running a shop in the name and style of Gajanan Electricals
at village Mohegaon. The claimants were dependent on his income. The
accident occurred due to the involvement of the motorcycle in question,
which was owned by respondent No.5 and insured with the appellant.
The claim was contested by the appellant by filing the written statement
contending that the liability of insurance company is based on the terms
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FA 3017.13.odt
and conditions of the policy. The deceased himself was rider of the
motorcycle. The owner and insurer of the offending vehicle i.e. jeep are
not added as party, hence claim is bad for non joinder of necessary
parties. They also alleged breach of conditions of policy for various
reasons.
3. The Tribunal, after considering the submission and material
on record, allowed the claim petition and passed an award dated
30.10.2012 for Rs. 4.21,650/- in favour of the claimants. holding
respondents owner and insurer of motorcycle jointly and severally liable
to pay compensation.
4. Herd Mr Gatne, learned advocate appearing for the
appellant. Mr. Gandhi learned advocate for the respondent claimants.
5. Mr. Gatne learned advocate for the appellant insurer submits
that late Dadasaheb was rider of the motorcycle at the time of accident.
He is real brother of insured - owner of the motorcycle. The motorcycle
is insured under "Third Party/liability only policy" that extends
insurance cover in tune with statutory provisions contained under
Section 147 of the Motor Vehicles Act . The risk of rider does not fall
within the statutory cover. No premium is paid to cover the risk of the
rider who is not owner of the vehicle. In this backdrop, the claim under
Section 163A of the Motor Vehicles Act can not be maintained against the
owner and insurer of the vehicle. He would submit that the claimants
have chosen not to implead owner and insurer of jeep as party to the
petition. Therefore, the claim could not have been entertained against
the appellant. In support of his contentions, he relied upon the following
judgments :-
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FA 3017.13.odt
[I] Ram Khiladi and another Vs. United India Insurance
(2020)2 SCC 550
[ii] United India Insurance Company Vs. Tilak Singh
(2006) 4 SCC 404
[iii] Dr. T.V. Jose Vs. Chako T.M. AIR 2001 SC 3939
{iv] New India Insurance Company Vs. Rama Gawas
2022 (1) All M.R. 608.
6. Mr. Gandhi, learned advocate appearing for the respondents
claimants submit that no specific defence has been raised in the written
statement as regards to the maintainability of claim and scope of
insurance cover. By inviting attention of this Court to the copy of the
insurance policy, he contends that the compulsory PA. Cover for Owner -
Driver for amount of Rs. 1 Lakh has been provided under the policy and
for that purpose premium of Rs. 50/- is charged. He would, therefore,
submit that the insurer would be liable to pay compensation in terms of
extended insurance contract. Mr. Gandhi would further submit that in a
claim filed under Section 163-A of the Motor Vehicles Act the claimants
are neither required to plead negligence, nor can such defence be
entertained. He would, therefore, urge to maintain the award passed by
the Tribunal.
7. Having considered the submissions advanced by learned
advocates appearing for respective parties and after going through the
record and proceedings, apparently, there is no dispute that late
Dadasaheb lost his life owning to accidental injuries suffered by him. The
claimants have specifically pleaded that the motorcycle was owned by the
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brother of the Dadasaheb-deceased, who had been to Khultabad
alongwith his friends on said motorcycle. While he was riding the
motorcycle in return journey, the offending jeep collided against the
motorcycle. The claimants have further contended that deceased had his
own business in the name of Gajanan Electricals. The claimants have
further relied upon the copy of the FIR (Exh.29). It depicts that on a
complaint given by Sachin Gopinath Pawar (i.e. real brother of late
Dadasaheb, so also, owner of the motorcycle) offence has been registered
against the jeep driver. The contents of the FIR depicts in clear terms
that Dadasaheb had borrowed the vehicle of his brother for visiting the
temple at Khultabad and in return journey, the accident in question took
place. Apparently, the vehicle was borrowed by late Dadasaheb for his
own use and pleasure from his brother. Unfortunately, he lost his life
because of the accident that occurred in return journey. The Insurance
policy is placed at Exh.30. It is titled as motorcycle/scooter Liability Only
Policy. The schedule of premium depicts that the basic third party
premium of Rs. 160 has been charged. The compulsory PA for owner -
driver for Rs. 1 Lakh is extended against premium of Rs. 50/-. There is no
dispute as regards to the contents of the insurance policy.
8. Turning to the written statement filed on behalf of the
insurer - appellant, no specific defence is raised barring contentions that
there is breach of conditions of the policy and deceased himself was
responsible for accident as he was riding the motorcycle. Another
defence of non-joinder of necessary party is put in service. In this
background, the issue that requires consideration in this appeal is :-
"As to whether the claim under Section 163-A of the Motor Vehicles
Act could have been maintained against the owner and insurer of
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the motorcycle that was borrowed by deceased Dadasaheb for his
own use, particularly, in reference to the terms and conditions of
insurance policy - statutory provisions contained under Section
147 of the Motor Vehicles Act ?"
9. The issue is no more res-integra. The Supreme Court of
India, in case of Ramkhiladi (Supra) in very identical facts and
circumstances of the case had framed a question for determination,
which states thus :-
"The short question which is posed for consideration of this Court
is whether, in the facts and circumstances of the case and in a case
where the driver, owner and the insurance company of another
vehicle involved in an accident and whose driver was negligent are
not joined as parties to the claim petition, meaning thereby that no
claim petition is filed against them and the claim petition is filed
only against the owner and the insurance company of another
vehicle which was driven by the deceased himself and the deceased
being in the shoes of the owner of the vehicle driven by himself,
whether the insurance company of the vehicle driven by the
deceased himself would be liable to pay the compensation under
Section 163A of the Act?; Whether the deceased not being a third
party to the vehicle No. RJ 02 SA 7811 being in the shoes of the
owner can maintain the claim under Section 163A of the Act from
the owner of the said vehicle?
10. While answering the aforesaid issue, the Supreme Court of
India observed in para. 9.5 thus :-
"9.5. It is true that, in a claim under Section 163A of the Act,
there is no need for the claimants to plead or establish the
negligence and/or that the death in respect of which the claim
petition is sought to be established was due to wrongful act,
neglect or default of the owner of the vehicle concerned. It is also
true that the claim petition under Section 163A of the Act is based
on the principle of no fault liability. However, at the same time,
the deceased has to be a third party and cannot maintain a claim
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under Section 163Aof the Act against the owner/insurer of the
vehicle which is borrowed by him as he will be in the shoes of the
owner and he cannot maintain a claim under Section 163A of the
Act against the owner and insurer of the vehicle bearing
registration No. RJ 02 SA 7811. In the present case, the parties
are governed by the contract of insurance and under the contract
of insurance the liability of the insurance company would be qua
third party only. In the present case, as observed hereinabove, the
deceased cannot be said to be a third party with respect to the
insured vehicle bearing registration No. RJ 02 SA 7811. There
cannot be any dispute that the liability of the insurance company
would be as per the terms and conditions of the contract of
insurance. As held by this Court in the case of Dhanraj (supra), an
insurance policy covers the liability incurred by the insured in
respect of death of or bodily injury to any person (including an
owner of the goods or his authorized representative) carried in
the vehicle or damage to any property of a third party caused by
or arising out of the use of the vehicle. In the said decision, it is
further held by this Court that Section 147 does not require an
insurance company to assume risk for death or bodily injury to
the owner of the vehicle."
11. This court finds that observations of the Supreme court as
indicated above, is a complete answer to the point under consideration in
the present case. The deceased was rider of the motorcycle which was
borrowed by him from his brother. He steps into the shoes of his brother
while riding the motorcycle and assumes character of owner while using
the motorcycle for his pleasure purpose. While riding the motorcycle, he
met with the accident causing fatal injuries. Although, FIR alleges that
the jeep collided against the motorcycle, claimants have not chosen to
add owner and insurer of the jeep as party to the claim petition. They
prosecuted the claim only against the owner and insurer of the
motorcycle. The scheme of statutory insurance under Section 147 of the
Motor Vehicles Act does not require owner of vehicle to insure the risk of
the rider of the motorcycle, except where such rider is employee of the
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owner and in pursuance of such employment, he rides the motorcycle. In
that case, the owner would be required to cover risk of his employee to
the extent of his liability prescribed under Employees compensation Act.
However, in the present case, when the deceased had borrowed the
vehicle for his own use from his brother, the statutory scheme does not
require the owner to cover risk of such rider. Further, in case of death or
injury while riding the motorcycle, it would not be open for motorcycle
rider/dependents of the deceased to maintain a claim under Section
163A of the Motor Vehicles Act. The liability of the insurer would
depend upon the terms of the contract. The parties to contract are at
liberty to restrict the contract to meet the requirements of the statutory
provisions under Section 147 of the Motor Vehicles Act or extend such
contract on payment of additional premium.
Although Mr. Gandhi, learned advocate for respondents/claimants
endeavors to point out inadequate pleadings in the written statement of
the insurer, he could not persuade this court to assume liability of insurer
in wake of crystallized legal position as discussed above. It is trite that
law need not be pleaded. If the liability of the insurer is based on
statutory provisions and such statutory provisions do not extend liability
towards rider of the two-wheeler, mere lacuna in the pleadings cannot be
dragged to extend insurance cover beyond statutory scheme and grant
benefit in favour of the claimants. The liability of the insurer will have to
be fixed within the parameters of the statutory provisions, mandating
specified insurance cover in tune with Section 147 of M.V. Act 1988 or
additional contract extending such cover.
In present case, there is no dispute as regards to the contents of the
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insurance policy which predominantly appears to be liability only
(statutory) policy. However, one additional head is secured to cover the
risk of "Owner - Driver" to the extent of Rs. 1 Lakh by way of personal
accident benefit. Therefore, if it is assumed that late Dadasaheb stepped
into the shoes of owner of the vehicle while riding the motorcycle, then
to the extent of insurance cover to "Owner-Driver" provided under
insurance policy of motorcycle, insurer would be under obligation to pay
compensation and satisfy award.
12. This Court as well as the Supreme Court of India in the case
of Ram khiladi (supra) based on very similar clauses of insurance policy,
directed the insurer to release the amount of Rs. 1 Lakh commensurate to
the insurance cover for owner - driver under the PA benefit. Therefore,
to that extent, the award of the Tribunal needs to be maintained, while
allowing the appeal filed by the insurer. Hence the following order :-
ORDER
[I] First Appeal is partly allowed;
[ii] The impugned judgment and award passed by Motor
Accident Claims Tribunal, Kopargaon, in MACP No. 99 of 2005 dated 30th
October, 2012 is hereby modified as under :-
[a] Claim petition is partly allowed;
[b] Opponent - Insurance company shall pay compensation of
Rs. 1 Lakh to the claimant along with interest @ 9 % p.a. from the date
of filing the claim petition till realization of the whole amount ;
[c] Opponent - insurer shall bear costs of the petition as well as
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this appeal. The amount, if any, deposited by the appellant insurer be
refunded after releasing the amount in favour of the claimants in terms
of the modified award.
[d] Appeal stands disposed of.
[S.G. CHAPALGAONKAR]
JUDGE
grt/-
