Chattisgarh High Court
Shivendra Gupta vs Smt. Kamla Gupta on 23 January, 2025
1
2025:CGHC:4152
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Reserved on 24.10.2024
Order Delivered on 23.01.2025
MAC No. 126 of 2019
1 - Shivendra Gupta S/o Yashodanand Ram Gupta Aged About 30 Years R/o
Lattipara , Kanker ,police Station Kanker, District Kanker Chhattisgarh.,
District : Kanker, Chhattisgarh
... Appellant(s)
versus
1 - Smt. Kamla Gupta W/o Y.N. Gupta Aged About 46 Years R/o
Lattipara ,kanker, police Station Kanker ,district Kanker Chhattisgarh.(Vehicle
Owner), District : Kanker, Chhattisgarh
2 - The Oriental Insurer Company Limeted Office At Infront Of Adarsh Bal
Mandir, main Road Dhamtari District Dhamtari Chhattisgarh.( Insurer),
District : Dhamtari, Chhattisgarh
---Respondent/s
For the Appellant : Mr. Praveen Dhurandhar, Adv.
For respondents No. 2 : Mr. Hanuman Prasad, Adv.
________________________________________________________
Hon'ble Shri Justice Arvind Kumar Verma
CAV Judgment
1) The present appeal under Section 173 of the Motor Vehicles Act has
been filed by the claimant against the award dated 19.09.2018 passed
by the Motor Accident Claims Tribunal, Kanker (in short, the Tribunal) in
Claim Case No. 143/2011. Vide the impugned award, the Tribunal has
rejected the claim application of the claimant on the ground that the
claimant himself was responsible for the accident and that he was not
the owner of the vehicle and as such claim application under Section
163-A of the MV Act is not maintainable.
2) Brief facts of the case are that the appellant was working under the
control of respondent No. 1 as driver of her school bus and on
15.04.2009 at about 11:00 am, the appellant was traveling in the school
bus Tata Magic bearing registration No. CG-19D-0219 along with his
relatives. While returning to home, the original driver of the bus namely
Virendra Rajak felt sleep due to long driving, therefore the appellant has
taken the bus on his own risk and was driving the offending bus and due
to rash and negligent driving of the bus, he dashed with the tree due to
which the appellant has sustained injury. Thereafter, the appellant has
filed the claim application under Section 163(A) of Motor Vehicle Act
and same has been dismissed on 01.05.2012 by learned Claim
Tribunal, thereafter the appellant has filed the appeal before this Hon'ble
Court and same has been registered as MAC No. 1004/2012 and as per
the order dated 22.02.2018, the Hon'ble High Court has remanded the
matter for considering the treatment and disability part. After remanding
the matter, the learned Claims Tribunal has again dismissed the claim
application of the appellant on 19.09.2018. Hence this appeal.
3) Learned counsel for the appellant submits that this is second round of
litigation. Earlier the claim of appellant was rejected by the award dated
01-05-2012, which was assailed by the appellant before the Hon'ble
High Court in MAC No.1004/2012, wherein the Hon'ble High Court vide
its order dated 22-02-2018 held that the claim under Section 163-A of
MV Act was not maintainable, but found that extra premium was paid for
owner-cum-driver and hence found that if extra-premuum has been
charged by the insurance company for covering the risk of owner, the
insurance company would be liable to indemnify the owner to the extent
of limit of extra-premium accepted by the insurance company and the
matter was remanded by the Hon'ble Court for fresh adjudication for
determining just compensation. Once this Hon'ble Court in MAC
No.1004/2012 has remanded the matter on the count that extra-
premium has been paid for the owner-cum-driver for determination of
compensation than in such situation, the tribunal was not justified in
dismissing the claim again by the award dated 19-09-2018 holding that
the appellant was self negligent and he stepped into shoes of owner and
held the claim under Section 163-A as not maintainable.
4) Learned counsel for the appellant further submits that it is undisputed
that the appellant stepped into shoes of owner and his claim under
Section 163-A of MV Act is not maintainable but once extra-premium
has been taken by the insurance company in his policy, then he has to
indemnify the appellant to the extent of limit of extra-premium accepted
by the insurance company and the entire claim cannot be rejected in
toto.
5) Learned counsel for the appellant further submits that so far as extra-
premium is concerned and entitlement to that extent is concerned, the
same has been dealt by the Hon'ble Supreme Court in the matter of
"Ramkhiladi and another Versus United India Insurance
Company", reported in (2020) 2 SCC 550 and the relevant para are
para No.9.8 and 9.9, wherein the Hon'ble Supreme Court though found
that claim under Section 163-A is not maintainable, but as extra-
premium was paid covering the risk of owner-cum-driver, the Hon'ble
Supreme Court held the claimant entitle for Rs. 1,00,000/-. Thus, it is
prayed that the matter may be remanded to the claims tribunal for
determining compensation to the extent of coverage of extra-premium
paid for owner and driver in the policy.
6) Per contra, learned counsel for respondent No. 2/Insurance Company
submits that prima facie the appellant has taken the risk of driving the
offending bus without the knowledge/intimation of respondent no.1 Smt.
Kamla Gupta who is owner of offending bus and due to his negligence
driving the bus got dashed with the tree. At the time of driving the
offending bus it is not clear that the appellant was having valid and
effectiving driving license to drive the bus nor the appellant had himself
produced his driving license before the Learned Trial Court, it is clearly
mentioned in para 10 (issue no.3) and also as per para 8 the original
driver was Virendra Rajak therefore it is very clear that the respondent
no.1 has not appointed the appellant as driver of offending bus. As per
the facts of the case the respondent no.1 is mother of appellant and
looking to the status of owner son, the appellant without having
knowledge/permission of respondent no.1 taken the bus on his own
control and risk for driving, unfortunately the bus met with an accident
due to rash and negligent driving by the appellant hence the contents on
the application regarding driver of offending bus is not reliable as well as
the appellant has not filed any kind of appointment letter as driver as
well as not produced the salary slip hence at this stage the appellant is
not a actual driver of the offending bus nor he was holding the status of
the owner of the vehicle. The appellant was holding status as borrower
therefore the appellant is not entitled for compensation as per the
judgment of Hon'ble Supreme Court Reported in (2009) 13 SCC 710
Ningamma Vs. United India Insurance Company Limited as well
as the case of New India Assurance Company Limited Vs.
Sadanand Mukhi (2009) 2 SCC 417 hence the appellant is not entitled
for any kind of compensation.
7) Learned counsel for respondent No. 2 further submits that after
remanding back the earlier appeal filed by appellant i.e. M.A.(C)
No.1004/2012 the Hon'ble High Court has remanded the matter for
considering the treatment as well as the disability part as per the
judgment of Hon'ble Supreme Court i.e. Rajkumar Vs. Ajay Kumar
and Another (2011) 1 SCC 343 and after remanding the appellant had
adduced evidence as well as the disability certificate Exhibit P-43 and in
the disability certificate the doctor has found only 16% of the disability
which was issued by Dr. Lokesh Dev AW-2 on 10.07.18 which is not for
entire body but only for injury meanwhile the earlier appeal has been
remanded on 22.02.18 therefore the disability could not be relied
because the accident has been occurred on 15.04.09 and after very
long time approximately more than 9 years have been passed. the
doctor has examined and has only said that the disability has been
found from old injury and the Learned Tribunal has found the disability is
not permanent in nature.
8) He further submits that as per the insurance policy the respondent no.1
has not paid any kind of premium to cover the risk of borrower (who was
untrained and unlicensee person) therefore the status of appellant is
only a borrower and the respondent no.1 has not appointed/permitted
the appellant in the offending bus as well as the appellant has took the
bus on his own control without the knowledge of respondent no.1 as
only the status of owner son which is very clear that the appellant is not
an employee of respondent no.1, therefore the appeal is not
maintainable and same is liable to be dismissed.
9) I have learned counsel for the parties and perused the records with
utmost circumspection.
10) Perusal of records, more particularly the policy which has been issued
by the respondent-insurance company would show that the Insurance
Company, apart from accepting premium for the basic coverage, has also
received an extra premium covering personal accident for the owner-cum-
driver of Rs. 100/-. In addition, premium un-named for Rs. 350/- was also
collected. So also premium for employees were also collected for an
amount of Rs. 25/-. An extra premium covering the risk of owner-cum-
driver was also obtained by the Insurance Company.
11) From the pleadings which have come on record, undisputedly the
claimant in the instant case was the son of the registered owner of the
offending vehicle. Under the given circumstances, applying the principle
which has been laid by the Supreme Court in case of Ningamma and
another Vs. United India Insurance Co. Ltd 2009 (13) SCC 710, the
claimant for all practical purposes have to be construed to have stepped
into the shoes of the owner. Further, if extra premium has been charged by
the insurance company for covering the risk of owner, the insurance
company would be liable to indemnify the owner to the extent of limit of the
extra premium accepted by the insurance company. Following the ratio
laid down in case of Ningamma (supra), the Supreme Court in case New
India Assurance Co. Ltd. Vs. Sadanand Mukhi and Ors., 2009 (2)
SCC 417 has also held in a categoric term that if the additional risk is
sought to be covered, additional premium has to be paid and that in case
of extra premium having been charged by the insurance company, the
insurer would be liable to cover the risk of not only a third party, but also of
others who would come within the purview thereof.
12) The Hon'ble Supreme Court in the matter of "Ramkhiladi and another
Versus United India Insurance Company", reported in (2020) 2 SCC
550 and the relevant para are para No.9.8 and 9.9, held that though claim
under Section 163-A is not maintainable, but as extra-premium was paid
covering the risk of owner-cum-driver, the Hon'ble Supreme Court held the
claimant entitle for Rs. 1,00,000/-.
13) In the given factual matrix of the case, this court is inclined to accept the
contentions put forth by the counsel for the appellant particularly in the
light of the judgments referred by the appellant wherein under similar
circumstances the preposition of law has been pro-founded.
14) The appellant had adduced disability certificate Ex.P-43 and in the
disability certificate, the doctor has found 16% of the disability which was
issued by Dr. Lokesh Dev (AW-2), thus he is suffering permanent
disablement of 16%.
15) Since, the injured/complainant/appellant in the instant case would step
into the shoes of the owner and the Insurance Company having accepted
an extra premium covering the risk of the owner, the son of the registered
owner(mother) i.e. appellant would be entitled for a compensation to the
extent of risk covered by the Insurance Company.
16) In the instant case, the maximum limit of the risk covered by the
Insurance Company is that of Rs.1,00,000/-.
17) Accordingly, the impugned award stands modified to the extent that, the
claimants shall be entitled for an amount of only Rs.1,00,000/- The said
amount of Rs.1,00,000/- shall also carry interest @ 6% from the date of
filing of claim application before the Tribunal, till its realization
18) The appeal stands allowed in part and disposed off.
Sd/-
(Arvind Kumar Verma)
Judge
Jyoti
