Delhi High Court
Bajaj Allianz General Insurance ... vs Ritu Rawat & Anr. on 27 April, 2012
Author: G.P. Mittal
$~46
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:27th April, 2012
+ MAC APP. No.628/2009
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.
..... Appellant
Through: Mr.Atul Nanda, Sr. Advocate with
Ms. Rameeza Hakeem & Mr.
Rajat Brar, Advocates
Versus
RITU RAWAT & ANR. ..... Respondents
Through: Ms. Pinki Talukdar, Advocate for
the Respondents.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appellant Bajaj Allianz Insurance Co. Ltd. impugns a
judgment dated 05.10.2009 passed in a Claim Petition under
Section 163-A of the Motor Vehicles Act whereby a
compensation of `6,00,000/- was awarded to the parents of the
deceased Manish Rawat who died while driving the two-
wheeler bearing Registration No.DL-5S-W-1373 owned by his
father the Respondent No.2 herein.
2. The manner of the accident as stated by the First Respondents
(the Claimants) is extracted from para 2 of the impugned
judgment hereunder:
"2. The detailed circumstances of the accident
as stated by the petitioners are that on 01.03.08,
deceased at about 7.20 AM was going on
Motorcycle above stated at a moderate speed along
the right side of the road and when he reached the
GT Road Flyover, Shahdara, suddenly an
unknown/untraced truck came being driven in a very
rash and negligent manner and hit the motorcycle of
the deceased from behind. As a result, the deceased
fell down and was removed to GTP Hospital, but the
doctors declared him to have been "brought dead".
The truck driver fled from the spot alongwith the
truck. Case was registered at PS M.S. Park, Delhi
U/s 279/304-A of IPC vide FIR No.60/08."
3. It is urged by the learned counsel for the Appellant that the
Claims Tribunal fell into error while interpreting Section II of
the Contract of Insurance which referred to the liability of the
third parties, as the deceased being himself driver of the two-
wheeler was not a third party vis-à-vis the owner of the vehicle.
Para 21 of the impugned order is extracted hereunder:
"21. Upon perusal of the entire case law cited by
ld. counsel for the insurance company, the same
would still not help the case of the insurance
company keeping in view the factual position of the
case, as the contract of policy in question, copy of
which is Ex.R1W1/4, and the terms and conditions
filed by the insurance company itself and relied upon
by them, clearly show that the policy in question was
a package policy. Section II deals with the aspect of
„liability to third parties‟(emphasis supplied) and
states as under:
"Subject to the limits of liability as laid down in the
Schedule hereto, the company will indemnity the
insured in the event of an accident caused by or
arising out of the use of the insured vehicle against
all sums which the insured shall become legally
liable to pay in respect of :-
(i) Death of or bodily injury to any person including
occupants carried in the insured vehicle (provided
such occupants are not carried for hire or reward) but
except so far as it is necessary to meet the
requirements of Motor Vehicles Act, the company
shall not be liable where such death or injury arises
out of and in the course of the employment of such
person by the insured....."
4. It is admitted case of the First Respondent that Vijay Rawat, the
deceased‟s father was the owner of the two-wheeler and the
deceased himself was driving the same at the time of the
accident. Thus, the deceased was not a third party vis-à-vis the
insured.
5. There is no dispute about the proposition of law that while
claiming compensation under Section 163-A of the Motor
Vehicles Act from the owner or the insurer of any vehicle
involved in the accident, the Claimant is not required to prove
any negligence on the part of the driver from whose vehicle the
compensation is claimed. In this case, the deceased himself
was driving the two-wheeler which was borrowed by him from
his father (Respondent No.2 herein). This case is squarely
covered by the reports of the Supreme Court in Oriental
Insurance Co. Ltd. v. Rajni Devi & Ors., (2008) 5 SCC 736,
New India Assurance Co. Ltd. v. Sadanand Mukhi, (2009) 2
SCC 417 and Ningamma & Anr. Vs. United India Insurance
Co. Ltd., (2009) 13 SCC 710. In Rajni Devi (supra) and
Ningamma(supra), the Supreme Court brought out the
difference between the third party liability and contractual
liability. It was held that where the victim is not a third party,
the claim for compensation shall be governed by the terms of
the Contract of Insurance. The relevant para of
Ningamma(supra) 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.(emphasis supplied)
xxxxx xxxxx xxxxx
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."
6. In the instant case, the deceased was admittedly not a third
party. He himself was driving the two-wheeler which he
borrowed from his father. A perusal of the Insurance Policy
would show that a premium of `50/- was charged towards
personal accident cover for the owner driver. GR 36 under the
Motor Policy (Tariff Advisory Committee Regulation for
Transaction of Motor Insurance in India) deals with the
coverage of owner driver, which is extracted hereunder:
"GR.36. Personal Accident (PA) Cover under
Motor Policy
(not applicable to vehicles covered under Sections
E, F and G of Tariff for Commercial Vehicles)
A. Compulsory Personal Accident Cover for
Owner-Driver
Compulsory Personal Accident Cover shall be
applicable under both Liability Only and Package
policies. The owner of insured vehicle holding an
effective driving licence is termed as Owner-
Driver for the purposes of this section.
Cover is provided to the Owner-Driver whilst
driving the vehicle including mounting into/
dismounting from or travelling in the insured
vehicle as a co-driver.
NB.: This provision deals with Personal Accident
cover and only the registered owner in person is
entitled to the compulsory cover where he/ she
holds an effective driving licence. Hence
compulsory PA cover cannot be granted where a
vehicle is owned by a company, a partnership firm
or a similar body corporate or where the owner-
driver does not hold an effective driving licence.
In all such cases, where compulsory PA cover
cannot be granted, the additional premium for the
compulsory P.A. cover for the owner-driver should
not be charged and the compulsory P.A. cover
provision in the policy should also be deleted.
Where the owner-driver owns more than one
vehicle, compulsory PA cover can be granted for
only one vehicle as opted by him/ her.
The scope of the cover, Capital Sum Insured (CSI)
and the annual premium payable under this
section are as under: -
TYPE OF CAPITAL PREMIUM COVER
VEHICLES SUM (`)
INSURED
(`)
Motorised 1 lakh 50/- i) 100% of CSI for
Two Death, Loss of Two
Wheelers Limbs or sight of both
eyes or one limb and
sight of one eye.
ii) 100% from
Permanent Total
Disablement for
injuries other than
named above.
Private Cars 2 lakhs 100/- i) 100% of CSI for
Death, Loss of Two
Limbs or sight of both
eyes or one limb and
sight of one eye.
ii) 100% for
Permanent Total
Disablement from
injuries other than
named above.
Commercial 2 lakhs 100/- i) 100% of CSI for
Vehicles Death, Loss of Two
Limbs or sight of both
eyes or one limb and
sight of one eye.
ii) 50% of CSI for
Loss of one Limb or
sight of one eye.
iii) 100% from
Permanent Total
Disablement from
injuries other than
named above.
B. Optional Personal Accident Cover for
persons other than Owner-Driver
The cover under this section is limited to maximum
Capital Sum Insured (CSI) of ` 2 lacs per person.
Cover is available only in respect of the following
persons: -
1. Private Cars including three wheelers rated
as Private cars and motorized two wheelers with
or without side car (not for hire or reward): For
insured or any named person other than the paid
driver and cleaner.
Endorsement IMT - 15 is to be used
2. Private Cars, three wheelers rated as
Private cars and Motorsied Two Wheelers (not
used for hire or reward) with or without side car:
For unnamed passengers limited to the registered
carrying capacity of the vehicle other than the
insured, his paid driver and cleaner.
Endorsement IMT - 16 is to be used.
3. In respect of all classes of vehicles: For
paid drivers, cleaners and conductors.
Endorsement IMT - 17 is to be used
4. Motorised Two Wheelers with or without
side car (used for hire or reward): For unnamed
hirer/ driver.
Endorsement IMT - 18 is to be used."
7. The owner driver is the person who is the registered owner and
who is driving the two-wheeler himself. Since the deceased
was not the owner, his legal representatives were not entitled to
the compensation of `1,00,000/- meant under Personal
Accident for the owner driver. Anybody driving the vehicle
with or without permission of the owner cannot be taken as
owner driver. Thus, in this case, neither the compensation
towards the third party was payable as the deceased was not a
third party nor the compensation under personal accident
coverage was payable as it was meant for owner-driver.
8. The impugned order cannot be sustained and the Insurance
Company cannot be made liable to pay the compensation.
9. The Appeal is, therefore, allowed and the impugned order is set
aside.
10. The amount of compensation of `5,00,000/- lying deposited in
this Court vide order dated 21.12.2009 shall be refunded to the
Appellant Insurance Company along with the interest, if any,
accrued during the pendency of the Appeal.
11. The statutory amount of `25,000/- shall be refunded to the
Appellant Insurance Company.
12. The Appeal is allowed in above terms.
(G.P. MITTAL)
JUDGE
APRIL 27, 2012
pst
