Delhi High Court
The New India Assurance Co. Ltd. vs Sunita & Ors. on 13 January, 2015
Author: G.P. Mittal
$~32
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 13th January, 2015
+ MAC.APP. 101/2007
THE NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through: Mr. Pankaj Seth, Adv.
versus
SUNITA & ORS. ..... Respondents
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
G. P. MITTAL, J. (ORAL)
1. The Appellant New India Assurance Company Limited impugns the
judgment dated 23.11.2006 passed by the Motor Accident Claims
Tribunal (the Claims Tribunal), whereby the Claims Tribunal awarded
a compensation of Rs.4,06,948/- in favour of Respondents no.1 to 6,
who are the legal representatives of deceased Babu Lal, who suffered
fatal injuries in a motor vehicular accident which took place on the
intervening night of 30-31.08.2003 while driving a TSR No.DL-1RF-
7119.
2. As per the case set up by the Respondents, deceased Babu Lal used to
take on rent TSR No.DL-1RF-7119 from its owners Respondents no.7
and 8 (Respondents no.2 and 3 before the Claims Tribunal) on daily
hire charges of Rs.100/-.
3. It is averred that on the night intervening of 30-31.08.2003, deceased
Babu Lal was plying the earlier stated TSR on Bahadur Shah Zafar
Marg, New Delhi. When he reached opposite petrol pump, Delhi
Gate, the TSR driven by him met with an accident, as a result of which
the TSR overturned and deceased Babu Lal suffered injuries which
proved fatal. Ultimately on 03.09.2003, he succumbed to the injuries.
4. FIR No.316/2003 dated 31.08.2003 was registered in Police Station
I.P. Estate. The other vehicle alleged to be involved in the accident
could not be traced. The legal representatives therefore, preferred a
petition under Section 163-A of the Motor Vehicles Act, 1988 (the
M.V. Act) against the owner and Insurance Company of the vehicle
driven by him.
5. The Claims Tribunal awarded a compensation of Rs.3,84,948/- on the
assumption that under Section 163-A of the M.V. Act, the
compensation can be claimed from vehicle's owner and insurer. Para
13 of the impugned judgment is extracted hereunder:-
"13. The petitioner has claimed compensation under
Section 163-A of the Motor Vehicles Act. They have
stated that the deceased earned about 100-150/- per day.
In the absence of any documentary proof of income it
would be equitable to award minimum wages applicable
to skilled workers which at the relevant time was
Rs.3207.9 per month. The age of the deceased is stated to
be around 41 years. The multiplier applicable is 15.
Accordingly, the compensation for the death under the
provision of Section 163-A M.V. Act is computed as
under:
Annual Income: 3207.9X12 = Rs.38,495/-
2/3rd dependency of the petitioners: Rs.25,663/-
Compensation: 25663X15 = Rs.3,84,948/-"
6. In the instant case, deceased Babu Lal was not the employee of the
owner of the vehicle as he used to rent the vehicle to ply it for hire and
reward on daily basis. There was no relationship of employer and
employee between the two and, therefore, the legal representatives of
deceased Babu Lal would not be entitled to any compensation under
the Workman's Compensation Act, 1923.
7. Similarly, while plying the vehicle for hire and reward, deceased Babu
Lal was not a third party and was, therefore, not covered by the terms
and conditions of the insurance policy as well.
8. In Ningamma & Anr. v. United India Insurance Company Limited,
(2009) 13 SCC 710, the Supreme Court relied upon the judgment in
Oriental Insurance Company Limited v. Rajni Devi, (2008) 5 SCC 736
where it was held that Section 163-A of the M.V. Act cannot be said
to have any application in respect of an accident wherein the owner of
the motor vehicle himself is involved. While referring to Rajni Devi
in para 18 of the report, in Ningamma & Anr.(supra) the Supreme
Court held as under:-
"18. In the case of Oriental Insurance Company Ltd. v.
Rajni Devi and Ors. (2008) 5 SCC736 , wherein one of
us, namely, Hon'ble Justice S.B. Sinha is 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 M.V.A.
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 M.V.A. 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 M.V.A. 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 authorised to drive the said
vehicle by its owner, and therefore, he would step into
the shoes of the owner of the motorbike".
9. Since the vehicle in question had been rented out by the owner to
deceased Babu Lal, he stepped into the shoes of the owner. He will
not be a third party as well and the Insurance Company therefore, will
not be liable to indemnify the insured nor the owner will be treated as
a tortfeasor.
10. The Claims Tribunal erred in not understanding the true purport of
Section 163 of the M.V. Act. The impugned judgment cannot be
sustained, the same is accordingly set aside.
11. The appeal is accordingly allowed.
12. The compensation deposited shall be refunded to the Appellant
Insurance Company along with interest, if any earned thereon.
13. The statutory amount of Rs.25,000/- shall also be refunded to the
Appellant Insurance Company.
14. Pending application also stands disposed of.
(G.P. MITTAL)
JUDGE
JANUARY 13, 2015
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