Bombay High Court
The Oriental Insurance Co.Ltd Through ... vs Sambhaji Shivaji Holkar Disabled ... on 14 November, 2025
2025:BHC-AUG:31266
(1) FA-4436-2023+2
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 4436 OF 2023
WITH
CIVIL APPLICATION NO. 6289 OF 2024
WITH
CIVIL APPLICATION NO. 14474 OF 2023
The Oriental Insurance Co. Ltd.
Through Branch Manager,
Near ST Stand, Osmanabad,
Insurer of Motor Cycle MH-25-AE-0506
Through its Authorized signatory,
Dhammanand Sheshrao Sonone,
Age: 35 Yrs. Occu: Service,
Administrative Officer, T. P. Hub,
The Oriental Insurance Co. Ltd. Aurangabad. ...APPELLANT
Orig. Res. No.2.
VERSUS
1] Sambhaji S/o. Shivaji Holkar
Age: 35 years, Occu: Pvt. Service,
R/o. Benmbli, Tq. & Dist. Osmanabad,
Disabled hence through next friend
Father Shivaji Sudam Holkar,
Age: 55 years, Occu; Agri.
R/o. As above. ...Orig. Claimant
2] Kailas S/o. Namdeo Kakade
Age: 45 years, Occu: Business,
R/o. Yashvant Nagar, Osmanabad,
Tq. & Dist. Osmanabad. ...RESPONDENTS
Orig. Claimant & Resp. No.1.
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...
Mr. Dhananjay P. Deshpande, Advocate for the Appellant.
Mr. Prasanna S. Chavan, Advocate for Respondents.
CORAM : KISHORE C. SANT, J.
RESERVED ON : 04th OCTOBER 2025.
PRONOUNCED ON : 14th NOVEMBER 2025.
ORDER :
-
1. Heard Mr. Deshpande, the learned Advocate for the Appellant-
Insurance Company, and Mr. Chavan, the learned Advocate for
Respondents-Claimants.
2. This Appeal by the Insurance Company, original Respondent No.2,
challenging Judgment and Award dated 19 th August 2023, passed by the
learned Member, Motor Accident Claims Tribunal, Osmanabad in MACP
No.164 of 2016. Respondent No.1 is the original claimant. Respondent
No.2 is the original Respondent No.1.
3. By way of impugned Judgment and Award, the learned Member
allowed the claim petition, directing original Respondent Nos.1 and 2 to
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jointly and severally to pay the compensation of Rs.16,37,000/- within
30 days, including no fault liability amount.
4. Civil Application No.6289/2024 is filed seeking withdrawal of the
amount deposited by the appellant in the office of this Court towards
condition for grant of stay. Civil Application No.14474 of 2023 is filed
seeking stay to the impugned judgment and award. As the record and
proceeding is received, by consent of the parties, the appeal is taken for
final disposal at the stage of admission.
5. The facts, in short, are that the respondent No.1 suffered an
accident on 22nd October 2015. He was the pillion rider on the
motorcycle of Respondent No.2. He suffered 46% permanent disability.
He, therefore, filed a claim petition in the trial Court. An FIR came to be
lodged on 3rd December 2015 by father of the claimant. Owner of the
motorcycle accepted that the accident took place; however, he denied
that the motorcycle was being driven in a rash and negligent manner.
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6. It is the case of the appellant-Insurance Company that the claim
petition was filed in collusion. There is no direct evidence about the
accident. The driver of the motorcycle is also not examined. It is further
stated that while recording the history, it was recorded that the
motorcycle skidded off the road. Thus, there was no accident. It is
further contended that the claimant himself had borrowed the
motorcycle from respondent No.1 and he himself stepped into the shoes
of owner of the motorcycle. He cannot therefore claim to be a third
party. Consequently, he is not entitled to receive any amount towards
compensation. The learned Member of the Claim Tribunal, however,
wrongly recorded that the claimant was entitled to receive compensation
as a third party and allowed the petition.
7. The learned Advocate Mr. Deshpande, appearing for the Appellant,
vehemently argued that the claimant himself stepped into shoes of the
owner, and thus, was not entitled to receive compensation. The FIR was
lodged by the father of the claimant and not by the rider of the
motorcycle. The father has thus lodged the FIR on hearsay evidence. He
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himself has not seen the incident. No witness has been examined to
establish the accident. There is an admission by the vehicle owner
showing that it was a collusive petition. There is admission by the father
of the claimant that the vehicle was borrowed by the claimant. The
document showing involvement is not proved by the claimant. Thus, the
involvement of the vehicle itself is in doubt. He relied upon the circular
dated 16th November 2009 issued by the Insurance Regulatory and
Development Authority, which states that the owner of the vehicle is not
covered in such policy. From the policy at Exh. 38, he points out that the
policy though was package policy, the owner of vehicle is not covered. In
support of his submissions, he relied upon the following Judgments:
(i) United India Insurance Co. Ltd. Vs. Smt.
Suvarna Dadasaheb Pawar and Ors. passed by this
Court in First Appeal No. 3017 of 2013 decided on
06th May 2024.
(ii) Oriental Insurance Company Ltd. Vs. Rajni
Devi and Ors.1
(iii) Ramkhiladi and Anr. Vs. United India
Assurance Company and Anr.2
1 (2008) 5 SCC 736
2 (2020) 2 SCC 550
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8. Learned Advocate Mr. Chavan, appearing for Respondents,
vehemently opposed the appeal. He submits that the claimant was a
pillion rider, and therefore, clearly was a third party. There is nothing to
show that he borrowed the vehicle from the owner. A stray admission by
the father of the claimant in deposition by itself is not sufficient to
conclude that the claimant stepped into the shoes of the owner of the
vehicle. Delay in filling the FIR is because of the fact that the claimant
himself was admitted in the hospital and that fact is not denied. When
the claimant was in the hospital, a letter was sent to the Sadar Bazar
Police Station. On that basis, the offence ought to have been registered.
However, it is the fault of the police that no offence was initially
registered. Therefore, the offence was registered against the rider of the
vehicle and charge-sheet is also filed. There is no denial of the fact that
the rider of the motorcycle was not the owner. So far as policy is
concerned, he submits that the policy was package policy covering the
owner as well. The claim was filed under Section 166 of the Motor
Vehicle Act. He submits that the judgments relied upon by the appellant
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are not applicable to the facts of the present case. He relied upon the
following judgments.
(i) National Insurance Company Ltd. Vs. Balakrishnan and
Anr.3;
(ii) Bimla Devi and Ors. Vs. Himachal Road Transport Corpn.
And Ors.4;
(iii) Sunita Ashok Balsaraf Vs. Divisional Manager, New India
Assurance Co. Ltd.5;
(iv) Satling Gangadhar Bagal Vs. Abarao Dnyanoba Sanap
and Ors.6;
(v) Sheela Ashok Shende Vs. The Branch Manager, the
National Insurance Co. Td. And Anr.7
(vi) Dhiraj and Ors. Vs. Smt. Usha and Ors.8
(vii) New India Assurance Company Vs. Himmatrao and Ors.9
(viii) Satling Gangadhar Bagal Vs. Abarao Dnyanoba Sanap
and Ors.10
9. In this appeal, question needs to be decided is whether the
claimant can be said to a person stepping into shoes of the owner, and
3 AIR 2013 SC 473
4 AIR 2009 SC 2819
5 AIR Online 2019 Bom 3553
6 AIR Bom R. 82
7 2020(6)Mh.L.J. 264
8 AIR Bom R. 467
9 2015 (6) ALL MR 647
10 2022(3) Mh.L.J. 632
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thus, not entitled to receive compensation. On other aspects, there is no
much dispute i.e. disability, income etc. In the present case, the
insurance policy is on record at Exh.38. The policy is titled as "Two
wheelers package policy - Zone B". In the clause of liability, it shows that
the premium of Rs.6,000/- was charged in respect of any one claim or
series of claims arising out of one event. There is no premium charged
under the head P.A. cover under Section (III) for registered owner cum
driver (CSI). Thus, from the policy, it is clear that no premium was paid
to cover the registered owner-cum-driver. The question, therefore, would
be as to whether in the present case, the claimant can be said to be an
owner, as argued by the Mr. Deshpande. To show that the claimant
himself had borrowed the vehicle, he relies upon the evidence of father
of the claimant namely, Shivaji Holkar. This witness in his deposition
stated that the claimant had been to see his brother-in-law with his
friend Kailas Gore i.e. driver. The driver was driving the motorcycle at
excessive speed, and lost control of the vehicle, and in that, the accident
took place. He also stated details about the hospitalization expenses, the
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medical condition of the claimant, and income etc. In the cross-
examination, he accepted that the claimant had taken the motorcycle to
go to see his brother-in-law. The said motorcycle was being driven by the
Kailas Gore. Kailas Gore informed him about the accident. He accepted
that he did not inform about the incident till 28 th November 2015 to
anyone.
10. From the examination-in-chief itself, it is seen that it is the
claimant who had gone to see his brother-in-law with Kailas Gore. In
the cross-examination, it does appear that the motorcycle was taken by
the claimant himself from Kailas Kakde. In his statement, he stated that
on the date of accident, the claimant had been to his house at Bembli
and then went to his in-laws' place on the motorcycle with his friend
Shashikant Gore. This would also show that the motorcycle was with the
claimant. On this basis, this Court has to consider the legal position.
11. In the case of Ramkhiladi and Anr. (supra), the Hon'ble Apex
Court considered the provisions of Section 163-A and Section 147 of the
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Motor Vehicles Act, 1988. It was held that the claim petition under
Section 163-A is not maintainable by borrower/permissive user of
vehicle against the owner and/or insurer of the said vehicle. It is held
that such borrower/permissive user steps into shoes of owner, and thus
the owner cannot be claimed any compensation. The claimant cannot be
said to the third party. In paragraph 5.5 of the said judgment passed by
the Hon'ble Apex Court considered the judgment in the case of
Ningamma Vs. United India Insurance Co. Ltd. 11 and New India
Assurance Co. Ltd. Vs. Sadanand Mukhi12. Paragraph No.5.5 reads as
under:
"5.5. That in Ningamma V. United India Insurance Co. Ltd. (supra)
and New India Assurance Co. Ltd. V. Sadanand Kukhi (supra), this
Court has held that the owner of the vehicle or his legal
representatives or the borrower of the vehicle cannot raise a claim
for an accident in which there was no negligence on the part of the
insured vehicle. It is submitted that in the aforesaid decisions, this
Court has held that the borrower of the vehicle steps into the shoes
of the owner and, therefore, the borrower of the vehicle or his legal
representatives are not entitled to compensation from the insurer
under the Act. It is submitted that the deceased in the present case
has stepped into the shoes of the the owner and therefore not
entitled to any third party compensation from the insured vehicle."
11 (2009) 13 SCC 710
12 (2009) 2 SCC 417
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12. In the case of Ningamma (supra), the deceased was driving a
motorcycle borrowed by him from the real owner and met with an
accident by dashing against a bullock cart. In that case, it was held that
the claim petition under Section 163 of the Motor Vehicle Act cannot be
maintained.
13. In the case of Oriental Insurance Company Ltd. (supra), the
Hon'ble Apex Court held that it is a well settled principle of law that
where third party is involved, the liability of the insurance company
would be unlimited. In cases involving the death of the owners or
another passenger of the vehicle, the contract of insurance is governed
by and depend upon the terms of the contract.
14. In the case of United India Insurance Co. Ltd. Vs. Suvarna (supra),
this Court considering the judgment of Ramkhiladi (Supra), held that
the deceased was rider of the motorcycle borrowed by him from his
brother, and thus, he stepped into the shoes of his brother while riding
motorcycle. This Court also considered Section 147 of the Motor Vehicle
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Act. In the said case, the appeal of the insurance company was allowed
and the order of granting compensation was set aside.
15. The Circular issued by the I.R.D.A. shows that the liability of
insurance companies in respect of occupants of private car and pillion
riders in two-wheelers under standard motor package policies
(comprehensive policy). The said circular is purely liability-related
instructions, this Court need not go into that aspect.
16. So far as judgments relied upon by the learned Advocate for the
respondent are concerned, those are considered below. In the case of
National Insurance Company Vs. Balkrishnan (supra), it was held that
the occupant in the car and pillion rider of scooter/motorcycle are
covered under comprehensive policy. In the said case, the claim was by
the managing director of the company travelling in the company's car. In
the said case also the court held that to determine the question, it is
necessary to go through the terms of contract.
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17. In the case of Satling Gangadhar Bagal (supra), this Court held
that stray admission against the record carries no weight. In the said
case, the injury claim was dismissed by the Tribunal on the basis of
admission given by the witness. The said admission was found to be
against the record, and in that view, the Court took a view that the stray
admission cannot be considered.
18. In the case of Sheela Ashok Shende (supra), in the said case also,
there was stray admission relied upon by the Court. The Court
considered the case of Balkrishan (supra), and held that the claim
cannot be rejected on stray admission of illiterate claimant.
19. In the case of Dhiraj and Ors. (supra), this Court held that the
comprehensive policy covers the liability of pillion riders as well as
occupants in a four-wheeler. There is no dispute about the said
proposition. However, in the present case, the question is whether the
claimant stepped into the shoes of owner and was thus entitled not
entitled to receive compensation.
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20. Taking an overall view, it is clear that the vehicle was borrowed by
the claimant himself. The principle that stray admissions cannot be
relied upon is in the background that in that case the admission was
against the record. The contents of the FIR are seen by keeping in mind
the admission, this Court finds that it cannot be said that the admission
in the present case is merely a stray admission. The claimant himself had
borrowed the vehicle from Kailas Kakde. The fact that the FIR was
lodged after many days i.e. almost one and half months after the
accident also fortifies the submission of Mr. Deshpande. It is also seen
that Kailas Gore could have been examined, as is the only person who
has witnessed the accident as he himself involved in the same. Though it
was possible to examine him, he was not examined. The father of the
claimant, who is examined, is not eye-witness and whatever he stated
was based on hearsay evidence about the incident. Thus, though it was
possible to bring best possible evidence on record, it is not brought on
record. As already observed that other issues such as injuries, income
etc. need not be gone into, as there is no serious dispute on those
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aspects.
21. This Court thus finds that there is substance in the appeal. The
appeal therefore needs to be allowed. Hence, the following order:
ORDER
(i) First Appeal stands allowed.
(ii) The impugned Judgment and Award dated 19th August
2023, passed by the learned Member, Motor Accident Claims
Tribunal, Osmanabad, in MACP No.164 of 2016, is quashed
and set aside.
(iii) In view of disposal of the First Appeal, pending Civil
Applications, if any, stand disposed off.
[KISHORE C. SANT, J.]
22. At this outset, learned Advocate for the appellant informs that the
amount is deposited in this Court in view of order passed on an
application for stay.
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23. Needless to say that, the appellant shall withdraw the amount after
six weeks from today.
[KISHORE C. SANT, J.]
D.A.Ethape
