MACApp./182/2011
2022 Latest Caselaw 1369 Gua

                                                                                      Page No.# 1/11

GAHC010008922011




                          THE GAUHATI HIGH COURT
            (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh )


                          Case No: MACApp. 182/2011

                   Bajaj Allianz General Insurance Co. Ltd...........Appellant/Petitioner


                                         -Versus-
                   Kasirun Nessa and 3 Ors. ................................Respondents

:: BEFORE ::

                     HON'BLE MRS. JUSTICE MALASRI NANDI

                   For the Appellant/Petitioner       :       Mr. R. Goswami


                   For the Respondents                    :   Mrs. R. Devi.


                   Date of Hearing                        :   07.04.2022
                   Date of delivery of
                   Judgment and Order                     :    27.04.2022
                                                                            Page No.# 2/11



                           JUDGMENT & ORDER (CAV)

1. Heard Mr. R. Goswami, learned counsel appearing for the appellant/petitioner

as well as Mrs. R. Devi, learned counsel appearing for the respondents.

2. This appeal has been preferred by the insurer of the vehicle AS23F/0682, Bajaj

Allianz General Insurance Company Ltd against the award dated 30/07/2010 passed

by the learned Member, MACT, Tinsukia in MAC case no 76/2007 wherein the

appellant insurer has been made liable for compensation for the death of the

borrower of the Motor cycle due to the injuries received by him while driving the

vehicle.

3. The brief facts giving rise to the case is that on 13/05/2007 at about 11 PM while

the deceased Safik @ Safik Ullah Ansari was proceeding from Hijuguri, Tinsukia

towards his house at Philobari under Doom Dooma Police station by riding a motor

cycle bearing no AS23F/0682 owned by his own brother, he met with an accident

near Mansara, when the motor cycle got hit against the divider post of the railway

line. The accident occurred as the road became slippery as it was raining. As a result

of the said accident, Safik @ Safik Ullah Ansari sustained injuries on his person and he

died on the spot. In this connection one U.D Case was registered vide Doom Dooma

P.S. U.D case no 44/07 dated 14/06/2007. It is stated in the claim petition that the

claimants were solely dependent on the income of the deceased. It is an admitted

fact that at the relevant time of accident the alleged vehicle was duly insured with

the Bajaj Allianz General Insurance Company.

Page No.# 3/11

4. Learned counsel for the appellant contended that the deceased had

borrowed the motor cycle AS23F/0682 from his brother, the respondent no 4 here in

this appeal and while driving the same hit a divider post of a railway line and

succumbed to his injury. The accident allegedly occurred due to slippery condition of

the road. The aforesaid motor-cycle was insured by the appellant insurance

company. The appellant filed written statement with a very specific pleading that

since the vehicle was driven by the deceased himself, the deceased was not a third

party and therefore the respondent/claimants are not entitled to any compensation.

It was also pleaded that since the deceased had stepped into the shoes of the

insured himself the petition is not maintainable as against the appellant insurance

company. There was no allegation of rash and negligence against respondent no 4,

the owner of the motor cycle in the claim petition though filed u/s 166 of Motor

Vehicles Act 1988.

In support of his submissions learned counsel has placed reliance on the following case laws -

i. AIR 2009 SC 3056 (Nimgamma & another v. United India Insurance Company Ltd)

ii. AIR 2009 SC 1788 ( New India Assurance Company Ltd v. Sadanand Mukhi & others)

iii. 2018 ACJ 2262 ( National Insurance Company Ltd v. Shyam Rai Mohanta & others)

5. I have heard learned counsel for the appellant and perused the documents

available on record.

6. From perusal of the case record, it reveals that the deceased was the son of the Page No.# 4/11

claimants no 1 and 2 and father of claimant no 3 who is the minor son of the

deceased. From the claim petition it is seen that at the time of filing of MAC case no

76/2007 before the MACT, Tinsukia, the application was filed u/s 166 of MV Act, 1988

claiming compensations for the death of Safik @ Safik Ullah Ansari. But subsequently

the word "under section 166" was striking out by putting Initial and date 29/11/2007

i.e. on the date of filing of the case. It is not reflected in the claim petition on which of

the provision the application for claiming compensation was filed. In the MV Act,

there are only two provisions for claiming compensation in case of death or injury

caused by a motor vehicle i.e. u/s 166 or u/s 163 A. As it appears from the claim

petition that the monthly income of the deceased was shown as Rs. 8000/-, so annual

income comes to Rs. 96,000/- . As such it transpires that the claimant filed the claim

petition u/s 166 of MV Act as because if the case is filed u/s 163 A of MV Act the

annual income of the person is not more than Rs. 40,000/- . It is interesting to note that

the learned Tribunal while writing the Judgment did not mention any of the provision

under which the claimant claimed compensation. But the tribunal considered the

income of the deceased as Rs. 3000/- per month. Under such circumstances it can

be said that the learned Tribunal considered the case of the claimants filed u/s 163 A

of the MV Act.

7. After going through the evidence on record, it reveals that no other vehicle was

involved in the instant case except the vehicle which was driving by the deceased

himself. As per the claim petition as well as the evidence on record, the accident

occurred as the road became slippery as it was raining. Otherwise it can be said that

the accident took place as the deceased drove the vehicle in a rash and negligent Page No.# 5/11

manner causing his death. It is also an admitted fact that the deceased borrowed

the motor cycle from his brother, respondent no 4. The party who suffered loss in

MACT claims must be the third party, whereas in the present case, the legal

representatives of the deceased filed the claim petition against the registered owner

and the insurer of the vehicle.

8. The Hon'ble Supreme Court in the case of Nimgamma & another (supra) held as

under -

"In the light of the aforesaid submissions, the question that falls for our consideration is whether the legal representatives of a person, who was driving a motor vehicle, after borrowing it from the real owner meets with an accident without involving any other vehicle, would be entitled to compensation under Section 163-A of MVA or under any other provision(s) of law and also whether the insurer who issued the insurance policy would be bound to indemnify the deceased or his legal representative? Before dwelling further, it would be useful to discuss the relevant paras of Section 163-A and 166 of the MVA applicable in the present case.

"163-A. Special provisions as to payment of compensation on structured formula

basis.--

(1) Notwithstanding anything contained in this Act or in any other law for the time

being in force or instrument having the force of law, the owner of the motor vehicle

of the authorised insurer shall be liable to pay in the case of death or permanent

disablement due to accident arising out of the use of motor vehicle, compensation,

as indicated in the Second Schedule, to the legal heirs or the victim, as the case may

be.

(2) In any claim for compensation under sub-section (1), the claimant shall not be Page No.# 6/11

required to plead or establish that the death or permanent disablement in respect of

which the claim has been made was due to any wrongful act or neglect or default of

the owner of the vehicle or vehicles concerned or of any other person.

(3) The Central Government may, keeping in view the cost of living by notification in

the Official Gazette, from time to time amend the Second Schedule."

166. Application for compensation- (1) An application for compensation arising out of

an accident of the nature specified in sub-section (1) of section 165 may be made-

(a) by the person who has sustained the injury; or

(b) by the owner of the property; or

(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or

(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:

Provided that where all the legal representatives of the deceased have not joined in

any such application for compensation, the application shall be made on behalf of

or for the benefit of all the legal representatives of the deceased and the legal

representatives who have not so joined, shall be impleaded as respondents to the

application.

18. In the case of Oriental Insurance Company Ltd. v. Rajni Devi and Others,

(2008) 5 SCC 736, 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 Page No.# 7/11

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 MVA 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 MVA 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 MVA. 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.

19. 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.

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 case the owner could not himself be a recipient of Page No.# 8/11

compensation as the 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.

20. 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. However, the question remains as to whether an application for

demand of compensation could have been made by the legal representatives of

the deceased as provided in Section 166 of the MVA. The said provision specifically

provides that an application for compensation arising out of an accident of the

nature specified in sub-section (1) of section 165 may be made by the person who

has sustained the injury; or by the owner of the property; or where death has resulted

from the accident, by all or any of the legal representatives of the deceased; or by

any agent duly authorised by the person injured or all or any of the legal

representatives of the deceased, as the case may be. When an application of the

aforesaid nature claiming compensation under the provisions of Section 166 is

received, the Tribunal is required to hold an enquiry into the claim and then proceed

to make an award which, however, would be subject to the provisions of Section 162,

by determining the amount of compensation, which is found to be just. Person or

persons who made claim for compensation would thereafter be paid such amount.

Page No.# 9/11

When such a claim is made by the legal representatives of the deceased, it has to be

proved that the deceased was not himself responsible for the accident by his rash

and negligent driving. It would also be necessary to prove that the deceased would

be covered under the policy so as to make the insurance company liable to make

the payment to the heirs. In this context reference could be made to relevant paras

of Section 147 of the MVA which reads as follows:-

147. Requirements of policies and limits of liability- (1) In order to comply with the

requirement of this Chapter, a policy of insurance must be a policy which-

(a) is issued by a person who is an authorised insurer; or

(b) insurer 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 vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;

(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:

Provided that a policy shall not be required-

(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of his death of, or bodily injury to, any such employee-

(a) engaged in driving the vehicle, or

(b) if it is a public service vehicle engaged as conductor of the vehicle or in Page No.# 10/11

examining tickets on the vehicle, or

(c) if its is a goods carriage, being carried in the vehicle, or

(ii) to cover any contractual liability.

(2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub- section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:-

(a) save as provided in clause (b), the amount of liability incurred;

(b) in respect of damage to any property of a third party, a limit of rupees six thousand:

Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier.

(5) Notwithstanding anything contained in any 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."

The Hon'ble Supreme Court in para No.24 of the said judgment further held as under:-

"There are indeed cases like New India Assurance Company Limited vs. Sadanand Mukhi and Others, (2009) 2 SCC 417, wherein, the son of the owner was driving the vehicle, who died in the accident, was not regarded as third party. In the said case the court held that neither Section 163-A nor Section 166 would be applicable."

9. Reverting back to the present case, as the deceased stepped into the shoes

of the owner of the vehicle in question, therefore the claimants cannot be stated to

be third party for the purpose of awarding the compensation under the Act. The

benefits of the insurance policy is restricted to the personal insurance cover to the

owner and the personal accident cover is a contract between the insured and the Page No.# 11/11

insurer and only designed to give the benefit to the insured and not to the borrower.

The legal representatives of the third party cannot claim the benefit of the death of

the borrower.

10. In view of the above, the present appeal is allowed and the impugned award

dated 30/07/2010 in MAC case no 76/2007 is modified.

11. However, the claimants are entitled to get an amount of Rs. 50,000/- (Fifty

Thousand Rupees) as compensation under no fault liability provided u/s 140 of MV

Act. The Hon'ble Supreme Court in the case of Eshwarappa @ Maheshwarappa and

another V. C.S. Gurushanthappa and another in Civil Appeal no 7049/2002 dated

18/08/2010 that a claim u/s 140 of the Act may be made not merely as in terms of the

award but it could be even at the time of the final disposal. It was also held in the

same Judgment that the scheme of the Act is to relieve representatives from

extraordinary hardships and that is why non obstante clause is used in section 140 ( 5)

of the MV Act.

12. The statutory amount deposited by the appellant at the time of filing the

appeal be disbursed accordingly. The amount already deposited by the appellant

before the Tribunal, after disbursing of the amount of Rs. 50,000/- against "no fault

liability" to the claimants, be refunded to the appellant insurance company.

13. Send down the LCR.

JUDGE

Comparing Assistant