Delhi High Court
Subhashini Mishra & Anr vs Mahaveer Parshad & Anr on 17 April, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 17th April, 2012
+ MAC. APP. No. 1/2010
SUBHASHINI MISHRA & ANR. ..... Appellants
Through: Mr. O.P. Mannie, Adv.
versus
MAHAVEER PARSHAD & ANR. ..... Respondents
Through Mr. L.K. Tyagi, Advocate for
R-2.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appellants who are the legal representatives (being parents)
of the deceased Raj Kumar Mishra filed a Petition under
Section 163-A of the Motor Vehicles Act (the Act) on the
ground that while driving a two wheeler No.DL-8S/Z-3238 on
01.02.2006, the deceased met with an accident resulting into his
death.
2. Regarding the manner of the accident, the Claims Tribunal
found that the involvement of no other vehicle was proved in
the accident. Relying on Ningamma & Anr. v. United India
Insurance Company Limited, (2009) 13 SCC 710, the Claims
Tribunal held that the deceased who was driving the motor
cycle after borrowing the same from the owner stepped into the
shoes of the owner of the motor cycle and since he was not a
third party, the Insurance Company was not liable to pay the
compensation.
3. Relevant portion of the report in Ningamma & Anr. v. United
India Insurance Company Limited, (2009) 13 SCC 710 is
extracted hereunder:-
"18. However, in the facts of the present case, it was
forcefully argued by the counsel appearing for the
respondent that the claimants are not the "third party",
and therefore, they are not entitled to claim any benefit
under Section 163-A of the MVA. In support of the said
contention, the counsel relied on the decision of this
Court in Oriental Insurance Co. Ltd. v. Rajni Devi
(2008) 5 SCC 736 and New India Assurance Co. Ltd. v.
Sadanand Mukhi, (2009) 2 SCC 417.
19.In Oriental Insurance Co. Ltd. v. Rajni Devi (supra)
wherein one of us, namely, Hon'ble S.B. Sinha, J. was a
party, it has been categorically held that in a case where
third party is involved, the liability of the insurance
company would be unlimited. It was also held in the said
decision that where, however, compensation is claimed
for the death of the owner or another passenger of the
vehicle, the contract of insurance being governed by the
contract qua contract, the claim of the claimant against
the insurance company would depend upon the terms
thereof.
x x x x x x x x x x x
21.In our considered opinion, the ratio of the decision in
Oriental Insurance Co. Ltd. v. Rajni Devi (supra) is
clearly applicable to the facts of the present case. In the
present case, the deceased was not the owner of the
motorbike in question. He borrowed the said motorbike
from its real owner. The deceased cannot be held to be
an employee of the owner of the motorbike although he
was authorized to drive the said vehicle by its owner and,
therefore, he would step into the shoes of the owner of
the motorbike. We have already extracted Section 163-A
of the MVA hereinbefore. A bare perusal of the said
provision would make it explicitly clear that persons like
the deceased in the present case would step into the
shoes of the owner of the vehicle.
22.In a case wherein the victim died or where he was
permanently disabled due to an accident arising out of
the aforesaid motor vehicle in that event the liability to
make payment of the compensation is on the insurance
company or the owner, as the case may be as provided
under Section 163-A. But if it is proved that the driver is
the owner of the motor vehicle, in that liability to pay the
same is on him. This proposition is absolutely clear on a
reading of Section 163-A of the MVA. Accordingly, the
legal representatives of the deceased who have stepped
into the shoes of the owner of the motor vehicle could not
have claimed compensation under Section 163-A of the
MVA.
23.When we apply the said principle into the facts of the
present case we are of the view that the claimants were
not entitled to claim compensation under Section 163-A
of the MVA and to that extent the High Court was
justified in coming to the conclusion that the said
provision is not applicable to the facts and circumstances
of the present case."
4. Thus, the deceased was neither an employee of the Insured not a
third party and was not entitled to any compensation under
Section 163-A of the Act unless there was a specific contract
between the insured and the insurer covering the risk of any
driver other than the owner himself.
5. There is no infirmity or error in the impugned judgment.
6. The Appeal is devoid of any merit; the same is accordingly
dismissed.
(G.P. MITTAL)
JUDGE
APRIL 17, 2012
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