Bombay High Court
Hdfc Ergo Gen. Insurance Co. Ltd, Thr. ... vs Suresh Motiram Sawasakar And Others on 9 September, 2024
Author: M. W. Chandwani
Bench: M. W. Chandwani
2024:BHC-NAG:10772
J FA-124-2023.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO.124 OF 2023
APPELLANT : HDFC Ergo Gen. Insurance Co. Ltd.,
On. R.A. Through its Branch Manager, 403-A,
Ori. Resp. No.1
4th floor, Shree Shyam Tower, Near
NIT Building, Kingsway, Civil Lines,
Nagpur, Tq. & Dist. Nagpur
..VERSUS..
RESPONDENTS : 1 Suresh Motiram Sawasakar,
On R.A.
Ori. Claimant-1
Age about 53 yrs, Occ. Labour
On R.A. 2 Sau. Vimal Suresh Sawasakar,
Ori. Claimant-2
aged about 51 years, Occu. Household
On R. A. 3 Ashirwad Suresh Sawasakar,
Ori. Claimant-3
aged about 23 years, Occu. Education
All R/o Nanhori, Tq. Brahampuri, Dist.
Chandrapur
Ori. Resp. No.2 4 Vitthal Keshav Korankar,
Age abut 36, Occupation : Owner &
Rider, R/o Chandmari Nagar, Wathoda
Layout, Nagpur, Tq. & Dist. Nagpur
Ori. Resp. No.3 5 Mohammad Zahir,
Age about 55, Occupation : Labour,
R/o Jafar Nagar, Nagpur, Tq. & Dist.
Nagpur.
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Mr H. N. Verma, Advocate for Appellant.
Mr S. A. Chaudhari, Advocate for Respondent Nos.1 to 3.
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CORAM : M. W. CHANDWANI, J.
DATED : 9th SEPTEMBER, 2024.
ORAL JUDGMENT
1. Heard.
2. Admit.
3. By this appeal, the appellant has challenged the
impugned award dated 12.10.2022, passed by the Motor
Accident Claims Tribunal, Chandrapur, in Motor Accident
Claims Petition No.13 of 2016, thereby directing the original
respondent Nos.1 and 2 to jointly and severally pay the
compensation amount of Rs.12,42,600/- to the original
claimants including the amount of No Fault Liability alongwith
interest @ 6% per annum from the date of petition till its
realization.
4. Bare facts, which give rise to the present appeal, can
be summarized as under :
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Respondent Nos.1 and 2 are the parents and
respondent No.3 is the brother of deceased Darshan Suresh
Sawarkar (hereinafter referred to as "the original claimants").
The original claimants have filed a claim petition before the
M.A.C.T., Chandrapur alleging that on 04.12.2015, deceased
Darshan was a pillion rider on the motorcycle of the original
respondent No.2 - Vitthal Keshav Korankar. When they
reached near the bridge of Kanhan Petrol Pump, the original
respondent No.2 lost his control over the offending vehicle and
gave a dash to the wall of the bridge, wherein they fell off the
bridge and received multiple injuries on the vital parts of their
bodies. In the said accident, Darshan died on the spot due to
head injury and other multiple injuries. The matter was
reported to Kanhan Police Station, District Nagpur. The
offending motorcycle bearing registration No.MH-31-BL-5800
was insured with the original respondent No.1 - Insurance
Company. The Tribunal after hearing both the sides, directed
the original respondent No.1 - appellant and original
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respondent No.2 to jointly and severally pay the compensation
amount of Rs.12,42,600/- to the original claimants including
the amount of no fault liability alongwith interest @ 6% per
annum from the date of petition, till its realization. Feeling
aggrieved with the impugned award, the present appeal came to
be filed under Section 173 of the Motor Vehicles Act, 1988
(hereinafter referred to as "the M. V. Act, 1988" for short), by
the appellant.
5. Mr Verma, learned counsel appearing on behalf of
the appellant submits that the Insurance Company has filed its
written statement vide Exh-19 opposing the contentions and
claim, as put forth by the original claimants. He submitted that
at the time of the accident, the rider of the offending vehicle
was not having a valid and effective driving licence and
therefore, he breached the terms and conditions of the policy.
The insurance policy was "liability only policy", issued in terms
of Section 147 of the M. V. Act, 1988. The risk of a pillion
rider was not covered under such policy. However, the Tribunal
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erroneously assumed the liability of the insurer and passed an
award holding the owner and insurer of the motorcycle jointly
and severally liable to pay the compensation.
6. Taking his argument further, he submits that the
Tribunal did not consider the vital aspect of the case that the
original respondent No.2 purchased the offending motorcycle
from the original respondent No.3 much prior to the accident.
However, as per the policy on record, there was no contract of
insurance between the appellant and original respondent No.2.
The Tribunal while passing the impugned award, imposed the
liability upon the insurer and the original respondent No.2,
whereas the insured has been exonerated. Therefore, he
submitted that, in absence of any contract of insurance between
the insurer and the original respondent No.2 and the insured
being exonerated, no liability can be fastened upon the
Insurance Company. To buttress his submissions, he seeks to
rely on the decision of this Court in the case of United India
Insurance Co. Ltd., vs. Archana Sanjay Sanap and Ors . First
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Appeal No.2541 of 2013 decided on 06.05.2024 and National
Insurance Co. Ltd. vs. Balakrishnan and anr. , AIR 2013 SC
473.
7. Perusal of the impugned award goes to suggest that
the death of Darshan was caused due to injury to vital organs in
a vehicular accident that occurred on 04.12.2015 in which, the
offending motorcycle bearing registration No.MH-31-BL-5800
was involved. It also goes to suggest that the police officials
visited the spot of accident, prepared the spot panchanama and
held that the original respondent No.2 was responsible for the
said accident.
8. Insurance policy on record goes to show that the
offending motorcycle was insured by the Insurance Company
under a "Two Wheeler Liability Only Policy" in the name of
Mohd. Zahir i.e. the original respondent No.3. It also shows
that the risk covered was only of "Third Party Liability" and by
making a payment of additional premium, the risk of personal
accident of owner-driver limited to Rs.1,00,000/- was covered.
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But, no premium was paid to the Insurance Company by the
owner of the motorcycle to cover the risk of passenger/person
i.e. the pillion rider sitting on the motorcycle. It is a settled
position of law that in case of "Liability only Policy", the pillion
rider does not fall within the domain of "Third Party."
9. A reference can be made to the decision of the
Hon'ble Supreme Court in the case of Oriental Insurance
Company Ltd. vs. Sudhakaran K. V. , AIR 2009 SC 2729,
wherein the Hon'ble Supreme Court in para 19 has held as
under :
"19. The law which emerges from the said decisions, is: (i)
the liability of the insurance company in a case of this nature
is not extended to a pillion rider of the motor vehicle unless
the requisite amount of premium is paid for covering his/her
risk (ii) the legal obligation arising under Section 147 of the
Act cannot be extended to an injury or death of the owner of
vehicle or the pillion rider; (iii) the pillion rider in a two
wheeler was not to be treated as a third party when the
accident has taken place owing to rash and negligent riding
of the scooter and not on the part of the driver of another
vehicle."
10. Considering the aforesaid position of law, since the
deceased, a pillion rider, cannot be treated as third party, he
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would not get third party coverage under the insurance policy
issued by the insurer to the owner/insured. Therefore, the
Tribunal ought not to have passed the impugned award
holding the insurer liable for payment of compensation to the
original claimants. Moreover, no order of pay and recover can
be passed in the facts and circumstances of the case, as there
was no liability of the insurer at all to satisfy the award for want
of coverage of the deceased as a passenger of the offending
vehicle and him not being a third party.
11. Before parting, let me state that the original
respondent No.3 claimed that he has sold the offending vehicle
to the original respondent No.2 before the date of accident, and
therefore, it is the original respondent No.2, who is the owner
and who was driving the offending vehicle, is responsible. It is a
matter of record that in the certificate of registration, still the
original respondent No.3 is shown as owner. Therefore, the
original respondent No.3 as a registered owner of the offending
vehicle and the original respondent No.2, who was driving the
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vehicle at the time of accident, are jointly and severally, liable to
pay the compensation to the original claimants.
12. In view of the above discussion, the appeal is partly
allowed and para (II) of the impugned award dated 12.10.2022
passed in M.A.C.P. No.13 of 2016 is modified as under :
"The original respondent No.2 - Vitthal Keshav
Korankar and the original respondent No.3 - Mohammad
Zahir, are jointly and severally liable to pay compensation
amount of Rs.12,42,600/- to the original claimants including
the amount of NFL alongwith interest @ 6% from the date of
filing of petition, till its realization."
13. Rest of the impugned award of the Tribunal shall
remain intact.
(M. W. CHANDWANI, J.)
Signed by: Mr. Ashish Tambe
TAMBE
Designation: PA To Honourable Judge
Date: 27/09/2024 15:10:20
