Royal Sunderam Alliance ... vs Bhawna Aggarwal & Ors
2014 Latest Caselaw 6112 Del

$~R-23
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 24.11.2014
+     MAC.APP. 828/2006

      ROYAL SUNDERAM ALLIANCE INSURANCE ..... Appellant
                  Through Mr.Pankaj Seth, Advocate
          versus
      BHAWNA AGGARWAL & ORS          ..... Respondents
                  Through None

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. In this matter none is appearing for the respondent/claimant. None has appeared on several hearings in the past. On 30.01.2009, 20.4.2009, 24.9.2013, 8.1.2014 and 29.1.2014 when the matter was listed none had appeared for respondents. Today also none has appeared.

2. The brief facts which led to filing of the claim petition is that on 12.4.2004 the deceased was driving a car. When he reached Garh Mukteshwar, a tractor trolley coming from the opposite direction hit the car. The deceased succumbed to his injuries sustained. The claimants, namely, respondents No.1 to 5 filed a claim petition under section 163A of the Motor Vehicles Act , 1988 seeking compensation from the owner of the car being driven by the deceased. The appellant was the insurer of the car.

3. Based on the evidence on record the Tribunal awarded a compensation of Rs.5,26,140/-.

4. The Tribunal noted the contention of the appellant that the deceased was

not a third party and hence cannot file a claim petition under section 163A of the Act and rejected the same. The Tribunal held that in an accident, the owner is the first party, the insurer is the second party and everybody else is a third party and hence a claim petition would lie.

5. Learned counsel appearing for the insurance company/appellant relies upon two judgments of the Supreme Court in the case of Ningamma and Another vs. United India Insurance Company Ltd,.(2009) 13 SCC 710. He contends that the facts of the present case are similar to the facts of the above case of Ningamma and Another vs. United India Insurance Company Ltd, (supra) in which the Supreme Court held that any person who borrows the vehicle from the owner fits into the shoes of the owner and would not be liable to receive compensation under section 163A of the M.V.Act.

6. A perusal of the judgment of the Supreme Court in case of Ningamma and Another vs. United India Insurance Company Ltd, (supra) shows that on facts that was a case in which the motorbike had been borrowed from the real owner. The Supreme Court held that the deceased who was driving the motorbike was not an employee of the owner and that he was authorised to drive the vehicle by the owner and therefore he fits into the shoes of the owner. The Court further held that the owner cannot file a claim petition against himself under section 163A of the M.V.Act and hence the claim petition under section 163A would not be maintainable.

7. In the said judgement the Supreme Court relied upon a. judgment of the Supreme Court in the case of Oriental Insurance Company Limited vs. Rajni Devi and Others, (2008) 5 SCC 736 in which the Supreme Court held that the provision of section 163A had no application to the accident where the owner

of the vehicle himself is involved.

8. Some facts of this case are not clear. In what capacity was the deceased driving the vehicle is not clear. The claim petition and the evidence of the widow Smt. Bhawna Aggarwal PW-1 is absolutely silent as to how the deceased came into possession of the said car. PW-1 only says that her husband used to work as a driver and was also in the business of sale and purchase.

9. Respondent No.6 the owner of the car has filed a written statement where he states as follows:-

"(deceased) was driving the vehicle at the relevant time under instructions and employment of respondent No.1 the owner of the Indica Car."

10. Other than the above averment in the written statement there is no other proof or averment or evidence on record to show in what capacity the deceased was driving the vehicle. In view of the above, there is no evidence to conclude that the deceased was a paid driver of respondent No.6. At best he was authorised to drive the vehicle of respondent No.6. Accordingly, the present petition under section 163A of the M.V.Act would not lie, in view of the judgments of the Supreme Court noted above. The petition is accordingly disposed of.

11. At this stage, learned counsel appearing for the insurance company/appellant submits that some similar issues are pending before the Supreme Court in a Special Leave Petition titled as National Insurance Company vs. Jai Prakash. I, hence, grant liberty to the claimants to approach the Tribunal again in case the judgment in the said case before the Hon'ble Supreme Court in the pending SLP accepts their stand. With this liberty the appeal stands disposed of.

12. The amount deposited vide interim orders of this court dated 9.11.2006 be released to the appellant/insurance company with upto date interest, if any.

13. Appeal stands disposed of accordingly.

JAYANT NATH, J NOVEMBER 24, 2014 n