Delhi High Court
Pooran Lal Sharma vs Sh. Karan Kumar & Ors on 13 February, 2015
Author: G.P. Mittal
$-35
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 13th February, 2015
+ MAC.APP. 152/2015
POORAN LAL SHARMA
..... Appellant
Through: Mr.J.S. Kanwar, Advocate
versus
SH. KARAN KUMAR & ORS ..... Respondents
Through: Mr. Manish Kaushik, Advocate
for Mr. K.L. Nandwani,
Advocate for Respondent no.2.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The instant appeal is directed against the judgment dated
27.09.2014 passed by the Motor Accident Claims Tribunal (the
Claims Tribunal) whereby the petition under Section 163A of
the Motor Vehicles Act, 1988(the Act) preferred by the legal
representatives of deceased Abhishek Sharma was dismissed.
2. As per the averments made in the claim petition, on 14.04.2008
at about 7:55 a.m., the deceased was driving motor cycle
no.DL-13-SA-5501 which he borrowed from Karan Kumar,
Respondent no.1 herein. When deceased reached Khajuri Khas
Chowk Red Light, an accident occurred and the deceased
suffered fatal injuries. The Appellant sued the owner of the
motorcycle i.e., Respondent no.1 and its insurer Respondent
no.2, claiming compensation from them for the death of the
deceased.
3. The Claims Tribunal relied upon the judgments in Ningamma &
Anr. v. United India Insurance Co. Ltd., (2009) 13 SCC 710,
Oriental Insurance Co. Ltd. v. Rajni Devi & Ors., (2008) 5 SCC
736 and the judgment of the Karnataka High Court in Oriental
Insurance Co. Ltd. v. Sharda G. & Ors., 2010 ACJ 977 and
dismissed the claim petition holding that in a petition under
Section 163A of the Act, only a third party can claim
compensation.
4. This Court in Oriental Insurance Co. Ltd. v. Kavita Singal &
Ors, MAC.APP.533/2009 decided on 13.01.2012 has discussed
this aspect in great detail. Para 2 of the report is extracted
hereunder:
"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.""
5. Thus, it is evident that the Appellant cannot claim any
compensation from the insurer if the accident occurs on account
of deceased's own negligence. Even if the accident was caused
because of any mechanical defect in the vehicle, the said risk
was not covered under the policy of insurance. In that event,
the legal representatives would be entitled to compensation only
from the owner of the vehicle which is not even the case set up
by the Appellant herein.
6. It is urged by the learned counsel for the Appellant that a
premium of Rs.50/- was paid towards personal accident of
owner driver by Respondent no.1 and as per the driver's clause,
any person including the insured could drive the vehicle. It is
therefore, argued by the learned counsel for the Appellant that
the Appellant would at least be entitled to the compensation of
Rs.1,00,000/- as covered by the policy of insurance. This
question was also answered in Kavita Singal & Ors (supra)
wherein it was also held that additional premium of Rs.50/- paid
for owner driver under GR 36A covers risk only of the owner-
cum-driver of the insured vehicle. Para 3 of the report in Kavita
Singal & Ors(supra) is extracted hereunder:
"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
or sight of two eyes or
one limb and sight of
one eye.
or Sight of one eye.
Disablement from
injuries other than
named above.
7. The Abhishek Sharma was not the owner- driver of the vehicle.
His risk was not covered. The Claims Tribunal hence, rightly
dismissed the claim petition.
8. The impugned order does not call for any interference. The
appeal is therefore, dismissed in limine.
9. Pending applications also stand disposed of.
(G.P. MITTAL)
JUDGE
FEBRUARY 13, 2015
pst
