Gauhati High Court
National Insurance Co.Ltd vs Nirada Devi And Anr on 9 November, 2021
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GAHC010128642013
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MACApp./28/2013
NATIONAL INSURANCE CO.LTD.
HAVING ITS REGISTERED OFFICE and HEAD OFFICE AT 3, MIDDLETON
STREET KOLKATA AND ITS REGIONAL OFFICE AT G.S.ROAD,
BHANGAGARH, GUWAHATI AND REPRESENTED BY THE CHIEF
REGIONAL MANAGER, GUWAHATI REGIONAL OFFICE G.S. ROAD,
BHANGAGARH, GUWAHATI.
VERSUS
NIRADA DEVI AND ANR
W/O LATE PURNA SARMAH, R/O VILL. JAPISAJIA, P.O. and P.S.
LAKHIMPUR, DIST. NORTH LAKHIMPUR, ASSAM.
2:MD. BABUL ALI
S/O LATE FIZNUR ALI
R/O NAKARI WARD NO. 1
P.O. and P.S. LAKHIMPUR
DIST. NORTH LAKHIMPUR
ASSAM DRIVER OF VEHICLE NO. AS-07-B-523
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
For the appellant : Mr. R. Goswami,
Mr. I. Alam,
Mr. B.S. Goswami
.... Advocates.
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For the respondent no.1 : Ms. S.A. Ahmed. ... Advocate.
Date of hearing & judgment : 09.11.2021
JUDGMENT AND ORDER (ORAL)
Heard Mr. R. Goswami, learned counsel appearing for the appellant and Ms. S.A.
Ahmed, learned counsel appearing for the applicant/respondent no.1.
2. The instant appeal under Section 173 of the Motor Vehicles Act, 1988 is preferred
against the judgment and award dated 08.07.2011 passed by the learned Member, MACT,
Lakhimpur in MAC Case No.25/2009, whereby an amount of Rs.3,86,000/- was adjudged as
compensation to the claimant to be paid within a period of 2 (two) months from the date of
award, failing which interest @ 6% p.a. would accrue to the awarded amount. The facts of
the case relevant for the purpose of disposal of the instant appeal are that the son of the
claimant Aditya Sarma (since deceased) while travelling on his own vehicle bearing
Registration No.AS-07-B-5237 on 12.03.2008 at about 3:30 p.m. fell down from the vehicle
on account of rash and negligent driving of the said vehicle of the driver, as a result of which
the son of the claimant sustained serious injuries and subsequently he succumbed to his
injuries and died. Subsequent thereto a claim petition was filed whereby the claimant who is
the mother of the deceased sought for compensation to the tune of Rs.19,15,500/-. The said
claim proceedings was registered and numbered as MACT Case No.25/2009. The appellant
who was the opposite party no.2 in the said proceedings filed their written statement and
pursuant thereto 3 (three) Issues were framed i.e. (1) Whether the accident took place due
to rash and negligent driving of the vehicle registration No.AS.07.B-5237 (Tracker) by its
driver causing death of Aditya Sarma; (2) Whether the claimant is entitled to get any
compensation as prayed for and (3) What other relief/reliefs the parties are entitled to.
3. The claimant in support of her case examined herself and 2 (two) other witnesses. The
appellant who is the opposite party no.2 adduced evidence of one Sri D.C. Barman,
Administrative Officer of the appellant company stationed at Lakhimpur and as well as
insurance policy exhibited as Exhibit-A. The Claims Tribunal while deciding the Issue No.1
came to a finding that the accident took place due to rash and negligent driving of the vehicle
by the driver which led to the death of the claimant's son. While deciding the Issue No.2 and
3 which were done together, the Court below was of the opinion that both the opposite party
nos.1 and 2 i.e. the driver and the appellant were jointly and severally liable to make
payment of the amount that may be found due to the claimant. In arriving at the
compensation, the Court below found that Rs.3,86,000 would be just and fair compensation
to be paid to the claimant within a period of 2 (two) months from the date of the award,
failing which interest @ 6% p.a. shall accrue on the awarded amount.
4. Mr. R. Goswami, learned counsel appearing for the appellant submitted that the
learned Tribunal below had erred in granting in compensation to the claimant in view of the
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Section 147 of the Motor Vehicles Act. He submits that in similar circumstances i.e. in the
case of New India Assurance Company Limited vs. Prabha Devi and Others reported in (2013)
14 SCC 719 as well as Dhanraj vs. New India Assurance Company Limited and Another
reported in (2004) 8 SCC 553, it was clearly held that the liability of the insurance policy is
only for the purpose of indemnifying the insured against the liabilities incurred towards a third
party or in respect of the damages to the property. It was further submitted that since the
deceased himself was the insurer as well as the owner of the vehicle, no amount of
compensation could have been awarded to the claimant inasmuch as, a perusal of the
Exhibit-A would only show that the premium was paid only in respect to OD-Basic as well as
for Third Party Basic and consequently the claimant's son who is the owner did not get
himself insured. He further submitted that the insurance premium paid of Rs.5649.07 under
the heading OD-Basic was only in respect to damage to the vehicle and not for injury to the
person of the owner and owner of a vehicle. He submits that the owner could have claimed if
he had taken a personal insurance cover however had not been done by the son of the
claimant in the instant case.
5. On the other hand Ms. S.A. Ahmed submits that son of the claimant was the sole
bread-earner of the family and as such the claimant who is the mother of the deceased is
entitled to compensation in law as well as in equity. The Counsel for the respondent no.1
further submits that the judgments in the case of New India Assurance Company Limited vs.
Kendra Devi and Others reported in (2007) 14 SCC 229, wherein the Supreme Court in the
said judgment did not interfere with the findings of both the Tribunals that the owner was
entitled to compensation. She also submitted another judgment of Supreme Court in the case
of Skandia Insurance Co. Ltd. Vs. Kokilaben Chandravadan and Others reported in (1987) 2
SCC 654 to buttress her argument that the claimant is entitled to the just and fair
compensation as awarded by the Tribunal. She also placed the judgment of Andhra Pradesh
High Court rendered in the case of the New India Assurance Company Ltd., Vijayawada vs.
Doredla Satyanarayana and Others reported in AIR 1997 AP 410 to submit that the claimant
was entitled to the compensation as adjudged by the Tribunal below on the ground that it
was due to the rash and negligent driving of the driver i.e. the opposite party no.1 which
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resulted in the accident of the son of the claimant who later on succumbed to his injuries and
expired.
6. I have given my anxious consideration to the pleadings of the parties, the evidence
laid, the impugned award as well as the decisions referred to by the learned counsels for both
the parties.
7. Admittedly the policy in question is a comprehensive policy. Under such circumstances
the question that arises is whether comprehensive policy could cover the risk of injury to an
owner of the vehicle also. Section 147 of the Motor Vehicles Act, 1988 reads as follows :
"147. Requirements of policies and limits of liability. -- (1) In order to comply with the
requirements of this Chapter, a policy of insurance must be a policy which--
(a) is issued by a person who is an authorised insurer; and
(b) insures the person or classes of persons specified in the policy to the extent
specified in sub-section (2)--
(i) against any liability which may be incurred by him in respect of the death of
or bodily injury to any person, including owner of the goods or his authorised
representative carried in the motor vehicle or damage to any property of a third
party caused by or arising out of the use of the motor vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a transport vehicle,
except gratuitous passengers of a goods vehicle, caused by or arising out of the
use of the motor vehicle in a public place.
Explanation. --For the removal of doubts, it is hereby declared that the death of or bodily
injury to any person or damage to any property of a third party shall be deemed to have been
caused by or to have arisen out of, the use of a vehicle in a public place, notwithstanding that
the person who is dead or injured or the property which is damaged was not in a public place
at the time of the accident, if the act or omission which led to the accident occurred in a public
place.
(2) Notwithstanding anything contained under any law for the time being in force, for
the purposes of third party insurance related to either death of a person or grievous hurt to a
person, the Central Government shall prescribe a base premium and the liability of an insurer
in relation to such premium for an insurance policy under sub-section (1) in consultation with
the Insurance Regulatory and Development Authority.
(3) A policy shall be of no effect for the purposes of this Chapter unless and until
there is issued by the insurer in favour of the person by whom the policy is effected, a
certificate of insurance in the prescribed form and containing the prescribed particulars of any
condition subject to which the policy is issued and of any other prescribed matters; and
different forms, particulars and matters may be prescribed in different cases.
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(4) Notwithstanding anything contained in this Act, a policy of Insurance issued
before the commencement of the Motor Vehicles (Amendment) Act, 2019 shall be continued
on the existing terms under the contract and the provisions of this Act shall apply as if this Act
had not been amended by the said Act.
(5) Where a cover note issued by the insurer under the provisions of this Chapter or
the rules or regulations made thereunder is not followed by a policy of insurance within the
specified time, the insurer shall, within seven days of the expiry of the period of the validity of
the cover note, notify the fact to the registering authority or to such other authority as the
State Government may prescribe.
(6) Notwithstanding anything contained in any other law for the time being in force,
an insurer issuing a policy of insurance under this section shall be liable to indemnify the
person or classes of persons specified in the policy in respect of any liability which the policy
purports to cover in the case of that person or those classes of persons."
8. From a reading of Section 147 which is quoted hereinabove as well as on a perusal of
the insurance policy it would reveal that an insurance policy covers the liability incurred by
the insured in respect to the death of or bodily injury to any person (including an owner of
the goods or his authorized representative) carried in the vehicle or damage to any property
of a third party caused by or arising out of the use of the vehicle. Section 147 does not
require insurance company to assume risk for death or body injury to the owner of the
vehicle. It has been held in the case of Oriental Insurance Co. Ltd. Vs Sunita Rathi reported in
(1998) 1 SCC 365 that the liability of an insurance company is only for the purpose of
indemnifying the insured against liabilities incurred towards a third person or in respect of
damages to the property. Thus, where the insured i.e. an owner of the vehicle has no liability
to a third party the insurance company has no liability also. As already stated hereinabove a
perusal of Exhibit-A which is an insurance policy would go to show that the premium was paid
in respect of OD-Basic as well as for TP-Basic. Further to that premium was also paid in
respect to liability to passengers and workmen compensation to employees. No evidence
have been laid by the claimant to that effect that OD-Basic shall also include the personal
accident insurance of the son of the claimant. OD-Basic normally refers to own damage which
is a premium being paid towards damage of the vehicle and not for the injury for to the
person of the owner. An owner of a vehicle can only claim compensation provided a personal
accident insurance has been taken out. In the instant case there is no evidence to that
effect . In this regard, the judgment of the Supreme Court rendered in the case of Dhanraj
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(supra) at paragraph 8, 9 and 10 is quoted hereinbelow :
"8. Thus, an insurance policy covers the liability incurred by the insured in respect of death
of or bodily injury to any person (including an owner of the goods or his authorized
representative) carried in the vehicle or damage to any property of a third party caused by or
arising out of the use of the vehicle. Section 147 does not require an insurance company to
assume risk for death or body injury to the owner of the vehicle.
9. In the case of Oriental Insurance Co. Ltd. Vs Sunita Rathi it has been held that the
liability of an insurance company is only for the purpose of indemnifying the insured against
liabilities incurred towards a third person or in respect of damages to the property. Thus,
where the insured i.e. an owner of the vehicle has no liability to a third party the insurance
company has no liability also.
10. In the case, it has not been shown that the policy covered any risk for injury to the
owner himself. We are unable to accept the contention that the premium of Rs.4989 paid
under the heading "Own damage" is for covering liability towards personal injury. Under the
heading "Own damage", the words "premium on vehicle and non-electrical accessories"
appear. It is thus clear that this premium is towards damage to the vehicle and not for injury
to the person of the owner. An owner of a vehicle can only claim provided a personal accident
insurance has been taken out. In this case there is no such insurance."
9. The said judgment of Dhanraj (supra) was subsequently followed by the Supreme
Court in the case of Prabha Devi (supra) and the relevant paragraph of the said judgment is
paragraph 8 & 9 which is quoted hereinbelow:
"8. We have perused the judgment of this Court in Dhanraj. In that case, the
appellant who was the insurer was travelling in the insured vehicle, which met with an
accident. In the accident, the appellant as well as the other passengers received injuries. A
number of claim petitions came to be filed. The appellant who was the insurer also filed a
claim petition. The MACT held the driver of the jeep responsible for the accident. In all the
claim petitions filed by the other passengers, MACT directed that the appellant (the owner) as
well as the driver and the insurance company were liable to pay compensation. Furthermore,
in the claim petition filed by the appellant, the MACT directed the driver and the insurance
company to pay compensation to the appellant. The aforesaid finding of the MACT was upheld
by the High Court in the appeal filed by the Insurance Company. The Insurance Company was,
in appeal before this Court challenging the judgment of the High Court awarding compensation
to the owner of the insured vehicle. Taking into consideration the provision contained in
Section 147 of the Act, this Court observed as follows :
"8. Thus, an insurance policy covers the liability incurred by the insured in respect
of death of or bodily injury to any person (including an owner of the goods or his
authorized representative) carried in the vehicle or damage to any property of a third
party caused by or arising out of the use of the vehicle. Section 147 does not require
an insurance company to assume risk for death or body injury to the owner of the
vehicle.
9. In the case of Oriental Insurance Co. Ltd. Vs Sunita Rathi it has been held that
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the liability of an insurance company is only for the purpose of indemnifying the
insured against liabilities incurred towards a third person or in respect of damages to
the property. Thus, where the insured i.e. an owner of the vehicle has no liability to a
third party the insurance company has no liability also.
10. In the case, it has not been shown that the policy covered any risk for injury to
the owner himself. We are unable to accept the contention that the premium of
Rs.4989 paid under the head "Own damage" is for covering liability towards personal
injury. Under the heading "Own damage", the words "premium on vehicle and non-
electrical accessories" appear. It is thus clear that this premium is towards damage to
the vehicle and not for injury to the person of the owner. An owner of a vehicle can
only claim provided a personal accident insurance has been taken out. In this case
there is no such insurance."
9. In view of the aforesaid ratio of law, the claim made by the respondents could
not have been allowed. Consequently, Civil Appeal No.479 of 2007 is allowed. The impugned
award as well as the impugned judgment of the High Court are set aside."
10. I have also perused the judgment relied upon by the learned Counsel for the
respondent i.e. in the case of Kendra Devi (supra) , wherein the Supreme Court did not
interfere with the award of the Tribunal which was confirmed by the High Court on peculiar
facts as could be seen in paragraph 9. Though in paragraph 8 of the said judgment the
Supreme Court did not distinguish or overrule the proposition of law laid down in the case of
New India Assurance Co. Ltd. Vs. Mieera Bai & Others reported in (2006) 9 SCC 174 in
respect to Section 147 of the Motor Vehicles Act, 1988. The judgment referred to in the case
of Kokilaben Chandravadan (supra) and Doredla Satyanarayana (supra) have been passed on
peculiar facts and which has no bearing to the case in hand and more so after the judgment
passed by the Supreme Court in the case of Prabha Devi (supra) and Dhanraj (supra).
11. In view of the above, I interfere with the impugned award passed by the Tribunal
below. Consequently the award dated 08.07.2011 passed in MAC Case No.25/2009 is set
aside. The deposit of Rs.25,000/- as made by the appellant at the time of filing of the appeal
be refunded to the appellant on an application being filed before the Registry. Send the LCR.
No cost.
JUDGE
Comparing Assistant
