National Insurance Co.Ltd. vs Smt.Sukhbiri & Ors.
2011 Latest Caselaw 3598 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 28.7.2011


+                   MAC APPEAL No.22/2009


NATIONAL INSURANCE CO.LTD.          ...........Appellant
                 Through: Mr.Pradeep Gaur, Advocate.

                   Versus

SMT.SUKHBIRI & ORS.                            ..........Respondents
                  Through:           Mr.Navneet Goyal, Advocate.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?               Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J. (Oral)

1. The award impugned before this Court is the Award dated

26.8.2008 vide which compensation in the sum of Rs.3,63,000/--

along with interest at 7.5% P.a had been awarded in favour of

claimants. This claim petition had been filed under Section 163A

of the M.V.Act .

2. Facts were that on the intervening night of 17/18.4.2005

Davinder @ Babloo, Lakshman and their friends were going on

their motorcycle; the motorcycle suffered an accident; an

unknown vehicle hit the motorcycle from behind as a result of

which the motorbike and the riders were thrown of balance.

Davinder and Lakshman fell down; they were crushed by some

unknown vehicle; they both died. The vehicle was being driven

by Lakshman. Davinder was the pillion rider. Sukhbiri is the

claimant of deceased Lakshman.

3. The appellant has assailed this award on the ground that

Lakshman was the owner of the vehicle; he was admittedly driving

it; accident had been suffered at the time when Lakshman being

the owner and driver of the vehicle was driving the said vehicle;

his claim is not covered under " third party risk" and the

Insurance Company in these circumstances is not liable to pay any

amount to the claimants. Reliance has been placed upon the

judgment of Nigamma & Anr. Vs. United India Insurance Co. Ltd.

reported in 2009 ACJ 2020 to support this submission.

4. In this judgment the Apex Court while dealing with a claim

petition under Section 163A of the M.V. Act had noted that a claim

made by legal representative of the deceased is not maintainable

when the driver is also the owner of the vehicle and he dies in the

road accident. In this case, the deceased was travelling on a

motorcycle which he had borrowed from its real owner.

Admittedly the deceased was not an employee of the real owner;

he had only borrowed the vehicle; he had stepped into the shoes

of the real owner at the time when he suffered the accident;

concept of "third party risk" had been expounded. Ratio returned

was that in such an eventuality where the driver is also the owner

of the vehicle and he dies in such a road accident the Insurance

Company is not liable.

5. The facts of the instant case are by and large similar. The

driver of this vehicle was Lakshman; on the evidence recorded,

court had noted that death of the victims Davinder and Lakshman

is the result of the road accident. Learned counsel for the

respondents has also not disputed the ratio of Nigamma (supra).

His contention is that this judgment is again being reviewed by

the Apex Court. Be that as it may, the law as it stands today is

that driver/owner who dies in an accident his legal heirs are not

entitled to a claim under Section 163A of the M.V.Act.

6. Learned counsel for the respondents has drawn attention of

this Court to the insurance policy; it is pointed out that a sum of

Rs.50/- had also been charged in the insurance policy for the

"compulsory P.A. to owner-driver". Learned counsel for the

appellant has explained that this amount of Rs.50/- had been

charged by the appellant as a personal accident amount to be paid

to the owner/driver quantifying it at Rs.1,00,000/- in those case

only where owner-driver survives.

7. In view of the ratio of the Nigamma (supra) the Insurance

Company could not have been foisted with the liability in the

instant case. Appeal is allowed. Order of the MACT is set aside.

The amount deposited by the appellant be returned. Appeal

disposed of in the above terms.

INDERMEET KAUR, J.

JULY 28, 2011 nandan