Delhi High Court
Oriental Insurance Co. Ltd. vs Kavita Singal & Ors on 13 January, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 9th January, 2012
Pronounced on: 13th January, 2012
+ MAC APP. 533/2009
ORIENTAL INSURANCE CO. LTD. ..... Appellant
Through: Ms. Manjusha Wadhwa, Adv.
versus
KAVITA SINGAL & ORS ..... Respondents
Through: Mr. R.M. Bagai, Adv. for R-1
to R-3.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. The Appellant Oriental Insurance Co. Ltd. impugns the award
dated 20.08.2009 passed by the Motor Accident Claims
Tribunal whereby a compensation of ` 1,00,000/- as personal
accident insurance cover was awarded in favour of the
Respondents No.1 to 3 who are the legal heirs of deceased
Vikas Singhal. He died in an accident, which took place on
19.11.2006. The finding that the accident was caused on
account of deceased's own negligence is not disputed as the
Respondents No.1 to 3 have not filed any appeal or cross-
objection against the judgment. The Tribunal relying on the
judgment of the Supreme Court in Oriental Insurance Co. Ltd.
v. Rajni Devi & Ors., (2008) 5 SCC 736 and Ningamma & Anr.
Vs. United India Insurance Co. Ltd., (2009) 13 SCC 710, held
that the deceased stepped into the shoes of the owner i.e.
Respondent No.4 Vineet Singhal and was, therefore, entitled to
a compensation of ` 1,00,000/- as personal accident insurance
cover.
2. In my view the Tribunal misinterpreted the judgment in
Ningamma (supra), it was nowhere laid down in Ningamma that
a personal accident cover made in respect of the owner - driver
would extend to anybody driving the two wheeler covered by
the policy of insurance. Ningamma and Rajni Devi (supra) were
in the context that compensation under Section 163 (A) cannot
be claimed by an owner or anybody driving the vehicle with the
permission of the owner (not being his employee) against his
own insurer as in respect of 3rd party risk, the liability of
insurance company is to indemnify the owner. The relevant
portion of the report in Nigamma (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.
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."
3. A perusal of the insurance policy placed on record shows that
an additional premium of ` 50/- was paid for owner-driver
under GR-36A. An order dated 11.12.2009 was passed by this
Court (in this case); relevant portion of the order 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.
4. Motorised Two Wheelers with or without
side car (used for hire or reward): For unnamed
hirer/ driver.
Endorsement IMT - 1 is to be used.
The scope of the cover, Capital Sum Insured and
the annual premium payable under this section
would be as under: -
DESCRIPTION OF % OF PREMIUM FOR EVERY
BENEFITS CAPITAL UNIT OF CSI OF `
SUM 10,000/- OR PART
INSURED THEREOF (IN `)
Pvt. Car Mot. Com.
Two Veh.
Wheeler
i) Death only 100% 5 7 6
ii) Loss of Two Limbs 100% 5 7 6
or sight of two eyes or
one limb and sight of
one eye.
ii) Loss of one Limb 50% 5 7 6
or Sight of one eye.
iii) Permanent Total 100% 5 7 6
Disablement from
injuries other than
named above.
4. It is clearly mentioned in India Motor Tariff under GR-36 that
this personal accident cover is available to the owner of the
insured vehicle holding an effective driving licence. Anybody
driving the vehicle with or without permission of the owner
cannot be taken as owner-driver. The policy of insurance
company is contractual. The compensation of ` 1,00,000/- was
not payable to Respondents No.1 to 3.
5. The impugned order cannot be sustained and the Insurance
Company cannot be made liable to pay the compensation.
6. The Appeal is allowed and the impugned order is set-aside. The
amount of ` 1,00,000/- along with interest, if any, and the
statutory amount shall be refunded to the Appellant Oriental
Insurance Co. Ltd.
(G.P. MITTAL)
JUDGE
JANUARY 13, 2012
hs
