Delhi High Court
National Insurance Co. Ltd. vs Ms. Jyoti & Ors. on 31 August, 2017
$~R-155
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 31st August, 2017
+ MAC APPEAL No. 13/2010
NATIONAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Pradeep Gaur, Adv.
versus
MS. JYOTI & ORS. ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The impugned judgment was passed on 12.10.2009 on accident
claim case (petition no. 07/09 - original number 477/2008) which was
instituted on 28.04.2008 by the first to third respondents on their
behalf, and also on behalf of fourth and fifth respondents (all of them
collectively referred to herein as the claimants), on account of death of
Sanjive Kumar Raghuvanshi in motor vehicular accident that occurred
on 25.11.2006. As per the averments in the said case, the deceased
was riding on motorcycle bearing registration no. DL 9ST 2326 when
at about 11.35 p.m. in the area of H block, Vikaspuri, he lost control
over it, the motorcycle striking against a pole resulting in he falling
down and sustaining injuries that proved fatal.
2. The motorcycle was owned by the sixth respondent Anil
Kumar, he being real brother of the deceased and it was insured
against third party risk with the appellant insurance company for the
period in question.
3. The claim case was initially presented as one under Section 166
of Motor Vehicles Act, 1988 but midway the proceedings, on the
prayer made by the claimants, it was treated as one pressed for
compensation under the structured formula on principle of no-fault
liability under Section 163-A of the Motor Vehicles Act, 1988.
4. The tribunal, by the impugned judgment, computed
compensation in the sum of Rs.4,88,800/- and directed the insurer to
pay the same, rejecting its defences including on the ground that the
deceased was not a third party.
5. The appeal questions the direction by the impugned judgment to
the insurer to pay the compensation in the aforementioned facts and
circumstances.
6. It is undisputed that the deceased was himself driving the
motorcycle and there was no other vehicle involved. It has been the
claimant's own case that the deceased had lost control over the
motorcycle which was the prime cause for the collision resulting in
fatal injuries being suffered. In these facts, it is inherent that the
deceased had borrowed the motorcycle from its owner, he being his
real brother.
7. Having borrowed the motorcycle from the registered owner, the
deceased had stepped into his shoes and from this perspective it is
clear that neither he nor the claimants (dependent upon him) can be
treated as third parties so as to bind the insurer with the liability to
indemnify. This is the effect of the law declared by the Supreme Court
in New India Assurance Company Ltd. vs. Sadanand Mukhi & Ors.,
(2009) 2 SCC 417, Ningamma & Anr. vs. United India Insurance
Company Ltd., (2009) 13 SCC 710 and decisions of this court
following the said law in a series of judgments including Oriental
Insurance Company Limited vs. Shakuntala & Anr., MAC
APP.142/2007, decided on 2nd March, 2016 and MAC Appeal No.
408/2008 National Insurance Company vs. Sanju & Ors. decided on
25th August, 2017.
8. For the foregoing reasons, the impugned judgment in so far as it
fastened the liability on the insurer to pay the compensation in this
case is set aside. The appeal stands allowed accordingly.
9. By order dated 15.01.2010, the insurance company had been
directed to deposit the entire awarded amount with the Registrar
General of this Court within thirty days upon which the same was
directed to be kept in fixed deposit receipt. The amount held in deposit
with interest accrued shall now be refunded to the insurance company
along with the statutory amount.
R.K.GAUBA, J.
AUGUST 31, 2017
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