Delhi High Court
National Insurance Co. Ltd. vs Kiran Devi & Ors. on 29 August, 2012
Author: G.P. Mittal
$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 29th August, 2012
+ MAC. APP. No.932/2011
NATIONAL INSURANCE CO. LTD. ..... Appellant
Through: Ms. Neerja Sachdeva, Advocate.
Versus
KIRAN DEVI & ORS. ..... Respondents
Through: Mr. Peeush Sharma, Advocate.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appellant National Insurance Co. Ltd. impugns a judgment dated
25.08.2011 passed by the Motor Accident Claims Tribunal(the Claims
Tribunal) whereby the Appellant Insurance Company was directed to pay
a sum of `2,00,000/- towards personal accident coverage for owner-cum-
driver of the insured vehicle No.DL-6-CD-6949.
2. It is admitted case of the parties that on 18.10.2009, deceased Sanjeev S/o
Raju Rajak suffered fatal injuries in an accident while driving maruti car
No. DL-6-CD-6949. An accident information report was filed by the
SHO, P.S. Hauz Khas reporting the accident in respect of earlier said
maruti car on 18.10.2009. Notice of the report was sent to the parties
who appeared in pursuance of the notice. On 07.06.2011, a statement
was made by the learned counsel for the legal representatives of deceased
Sanjeev that they(LRs) were claiming a sum of `2,00,000/- only from the
Appellant Insurance Company towards personal accident coverage. The
learned counsel for the Appellant Insurance Company informed the
Claims Tribunal that the Insurance Company would not have any
objection in paying the contractual liability of `2,00,000/- towards
coverage of owner-driver. On the next date, an Application was moved
on behalf of the Appellant Insurance Company stating that the deceased
Sanjeev was not the owner-driver of maruti car No. DL-6-CD-6949 and
that the personal accident cover was in the name of Sanjeev's father who
had also expired at the time of obtaining the insurance cover. It was thus
stated that the deceased did not have any coverage in the personal
accident policy for owner-cum-driver. The Claims Tribunal relied on
New India Assurance Co. Ltd. v. Umesh Kumari & Ors., 2011 ACJ 890
and held that the deceased has to be termed as owner as he stepped into
the shoes of the owner by borrowing the vehicle with the permission of
the owner. Thus, the LRs were held entitled to compensation under the
personal accident cover. In Umesh Kumari, the Punjab and Haryana
High Court relied on Ningamma & Anr. v. United India Insurance
Company Limited, (2009) 13 SCC 710. Paras 5 and 6 of the report in
Umesh Kumari are extracted hereunder:
"5. In Ningamma v. United India Insurance Co. Ltd., 2009
ACJ 2020 (SC), the Hon'ble Supreme Court of India held as
under:-
"In the case of Oriental Insurance Company Ltd. v.
Rajni Devi and others, 2008 ACJ 1441 (SC), wherein
one of us, namely, Hon'ble Justice S.B. Sinha 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, It was held in the said decision that Section
163-A of the MVA cannot be said to have any
application in respect of an accident wherein the
owner of the motor vehicle himself is involved. The
decision further held that the question is no longer res
integra. The liability under Section 163-A of the MVA
is on the owner of the vehicle. So a person cannot be
both, a claimant as also a recipient, with respect to
claim. Therefore, the heirs of the deceased could not
have maintained a claim in terms of Section 163-A of
the MVA. In our considered opinion, the ratio of the
aforesaid decision 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 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."
6. It is also useful to refer to para 21 of the judgment of
Hon'ble Apex Court in Ningamma's case, 2009 ACJ 2020
(SC), which reads as under:-
"(21). Section 147 of the MVA provides that the
policy of insurance could also cover cases against any
liability which may be incurred by the insurer in
respect of death or fatal injury to any person
including owner of the vehicle or his authorized
representative carried in the vehicle or arising out of
the use of vehicle in the public place."
3. In Ningamma & Anr and Oriental Insurance Company Limited v. Smt.
Rajni Devi & Ors., (2008) 5 SCC 736, the Supreme Court negatived the
contention that a borrower of the vehicle would be entitled to the
compensation from the owner. In that context, it was laid down that a
borrower of a vehicle steps into the shoes of the owner and is, therefore,
not a third party to claim the compensation from the insurer. The
judgments were rendered in the context that a borrower would not be
entitled to the compensation payable to the owner-cum-driver under the
personal accident cover.
4. In the instant case, the deceased was admittedly not a third party. He was
driving the insured vehicle at the time of the accident. A perusal of the
insurance policy would show that a premium of `100/- was charged
under compulsory PA to the owner-cum-driver. The coverage under
personal accident was `2,00,000/-.
5. 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.(emphasis supplied)
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
Two for Death, Loss
Wheelers of Two 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
Vehicles for 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".
6. It is urged by the learned counsel for the Respondent that the Appellant
Insurance Company could not have covered the risk of the owner as a
driver of the vehicle towards personal accident as he was already dead at
the time of obtaining the insurance policy. This insurance policy was
issued on 11.06.2009 with its validity from 10.06.2009 to 10.09.2010.
The registered owner of the vehicle had expired in the year 2008. Had
the person who was in possession of the vehicle and who obtained the
insurance coverage informed the Appellant Insurance Company that the
registered owner is already dead, perhaps the Appellant would not have
issued the insurance policy at all ? In any case, the coverage under GR
36 was only for the owner-driver, that is, registered owner of the vehicle
who may be driving the insured vehicle at the time of the accident. The
personal accident coverage is a contractual liability of the Insurance
Company and has to be strictly governed by the contract of insurance.
Since risk of deceased Sanjeev, who could at best be taken as one of the
legal heirs of Raju Rajak, was not covered for personal accident by the
contract of insurance, the Appellant Insurance Company had no liability
to pay the compensation.
7. The Appeal, therefore, has to be allowed. The impugned order is set
aside. The award amount deposited with the Registrar General shall be
refunded to the Appellant Insurance Company along with interest
accrued, if any, during the pendency of the Appeal.
8. Statutory amount of `25,000/- shall be refunded to the Appellant
Insurance Company.
9. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
AUGUST 29, 2012
pst
