M/S New India Assurance Co Ltd vs Smti Ankapilla Uma And 2 Ors
2022 Latest Caselaw 860 Gua

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GAHC010120752015




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : MACApp./193/2015

            M/S NEW INDIA ASSURANCE CO LTD
            HAVING ITS REGISTERED OFFICE AT NEW ASSURANCE BUILDING 87,
            MAHATMA GANDHI ROAD, MUMBAI AND ONE OF THE REGIONAL OFFICE
            AT G.S. ROAD, GUWAHATI, ASSAM.

            VERSUS

            SMTI ANKAPILLA UMA and 2 ORS
            D/O LATE NARAYAN RAO, R/O KHEJUR BAGAN, CENTRAL GOTANAGAR,
            P.O. MALIGAON, GUWAHATI, DIST. KAMRUP, ASSAM.

            2:SMTI ANKAPILLA BAGHESWARI
             D/O LATE NARAYAN RAO
             R/O KHEJUR BAGAN
             CENTRAL GOTANAGAR
             P.O. MALIGAON
             GUWAHATI
             DIST. KAMRUP
            ASSAM.

            3:MRS. R. LAXMI
            W/O SOMBABU @ SOMBABU
             R/O KHEJUR BAGAN
             CENTRAL GOTANAGAR
             P.O.MALIGAON
             GUWAHATI
             DIST. KAMRUP
            ASSAM

Advocate for the Petitioner   : MR.J JOHN

Advocate for the Respondent :
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                                  BEFORE
                      HONOURABLE MR. JUSTICE NANI TAGIA

                                      ORDER

Date : 11.03.2022

Heard Mr. K. K. Bhatta, learned counsel for the appellant/Insurance Company.

None has appeared on behalf of respondents No. 1 to 3 despite service of notices on the said respondents as indicated in the Office Note, dated 13.03.2018.

This is an appeal u/s. 173 of the M.V. Act, 1988, preferred against the judgment & award, dated 30.04.2015, passed by the learned Member, MACT No. 2, Kamrup, Guwahati, in MAC. Case No. 464/2013, under Section 163(A) of the Motor Vehicle Act, 1988, directing the appellant/Insurance Company to pay a sum of Rs. 4,67,000/- along with 6% interest from the date of filing of the claim petition till payment, to the claimants who are the respondents No. 1 & 2, herein.

The facts leading to the filing of the instant appeal, briefly, stated are as follows:

A claim petition u/s. 163(A) of the Motor Vehicle Act, 1988, was filed by the respondents No. 1 & 2 as claimants, claiming a compensation of Rs. 9,10,000/- from the appellant/Insurance Company on account of death of the deceased A. Sombabu @ Sombabu in a motor vehicle accident.

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It is stated in the claim petition that the respondents No. 1 & 2/claimants who are the sisters of the deceased A. Sombabu @ Sombabu in the claim petition, stated in the petition that the deceased was the driver of the offending vehicle bearing Registration No. AS-01-AM-5492 (Motorcycle). On 30.01.2010, the deceased A. Sombabu @ Sombabu was riding the motorcycle along with his friend Aripaka Bhaemo and when he reached the Kamakhya cutting, suddenly, a pedestrian appeared in front of him to cross the road and the rider lost his control over the bike, as a result of which, the motorcycle hit the divider of the road and met with an accident, due to which, the deceased sustained grievous injuries on his person. After the accident, the injured A. Sombabu @ Sombabu was taken to the Railway Hospital for treatment where the deceased had succumbed to his injuries on the way to the Hospital.

A case was registered at Jalukbari PS as Jalukbari PS U.D. Case No. 11/2010. At the time of the accident, the deceased A. Sombabu @ Sombabu who was aged about 18 years was a betel nut businessman and his monthly income was Rs. 3,300/-.

The respondent/appellant/Insurance Company contested the claim petition by filing the written statement wherein, it was stated that the accident had occurred due to rash and negligent driving of the deceased A. Sombabu @ Sombabu himself and therefore, the respondent/ appellant/Insurance Company was not liable to pay compensation to the petitioners/claimants.

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The appellant/Insurance Company also contended that on 30.01.2010, the deceased A. Sombabu @ Sombabu had borrowed the motorcycle bearing Registration No. AS-01-AM-5492 from the owner/insured Mrs. R. Laxmi and when he was driving the vehicle, he met with an accident resulting his death. Since the deceased A. Sombabu @ Sombabu has stepped into the shoes of the owner-insured, the deceased A. Sombabu @ Sombabu was, therefore, not a third party and his legal heirs are, hence, not entitled to get any compensation from the insurer of the vehicle i.e. appellant/Insurance Company.

On the pleadings of the parties; 3(three) issues were framed for determination by the learned Tribunal, which are, as under:

I. Whether the deceased A. Sombabu @ Sombabu died due to sustained injury in a motor vehicle accident occurred on 30.01.2010 at the time of using the vehicle bearing Regd. No. AS-01-AM-5492 (Motorcycle)?

II. Whether the driving license and insurance policy were valid on the day of accident to cover up the accident?

III. Whether the claimants are entitled to get any compensation?

While adjudicating on the above issues, the learned Tribunal made a consolidated assessment of the evidence produced and on such consolidated appreciation of the evidence; it has been, inter alia, found that the accident had occurred on 30.01.2010, at about 7.50PM. The name of the owner of the vehicle is Mrs. R. Laxmi. It was also found from the Accident Information Report(Ext.-1) that the vehicle was insured with the New India Assurance Co. Ltd., vide Policy Page No.# 5/10

No. 53090131090100203065, valid upto 10.01.2011. The vehicle was driven by the deceased A. Sombabu @ Sombabu and at the time of the accident, the deceased possessed a driving license bearing No. 50313/MKG/Pvt. which was valid upto 13.07.2030. From the Ext.-3 which is a copy of the Chemical Analysis Report of viscera of the deceased A. Sombabu @ Sombabu; it was also found that the deceased had died due to coma as a result of the injuries sustained on his person. The Insurance Policy was also found to be a Package Policy where there was a coverage for third party and own damage. The deceased A. Sombabu @ Sombabu had borrowed the motorcycle from respondent No. 3, namely, Mrs. R. Laxmi, the owner of the said motorcycle.

In the light of the above evidence recorded, the learned Tribunal held that the respondents/claimants are entitled to a compensation and accordingly, the learned Tribunal proceeded to determine the quantum of compensation to the tune of Rs. 4,67,000/- under the following Heads:

     Total Monthly income                :          Rs. 3,000/-

     Total annual income                  :         Rs. 36,000/-(3,000x12)
     Add 50%                             :          Rs. 36,000/- + 50%
                                         :          Rs. 54,000/-
     Less 50%                            :          Rs. 54,000 :- 2
                                          :         Rs. 27,000/-
     Multiplier                               :     16
     Total Compensation                  :          Rs. 27,000/- x 16
     Loss of dependency                  :          Rs. 4,32,000/-
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In addition to the amount of 'loss of dependency', noted-above, other compensation amounts under various Heads, were added, thereby raising the total compensation amount to Rs. 4,67,000/-, as quoted below:

       Loss of dependency                        :       Rs. 4,32,000/-
       Funeral Expenses                         :       Rs. 25,000/-
       Loss of Estate                           :       Rs. 5,000/-
       Transportation of body of the deceased   :      Rs. 5,000/-
                                                       Rs. 4,67,000/-

Assailing the correctness of the impugned judgment & award, dated 30.04.2015, passed by the learned Member, MACT No. 2, Kamrup, Guwahati, in MAC. Case No. 464/2013, Mr. Bhatta, learned counsel for the appellant/Insurance Company, submits that since the deceased A. Sombabu @ Sombabu was driving the motorcycle borrowed from respondent No. 3, namely, Mrs. R. Laxmi and was riding the motorcycle himself and had met with an accident, the claimants would not be, therefore, entitled for any compensation inasmuch as in an accident caused by the self-driven vehicle resulting in the death of a driver; the driver would not be a third party. In support of his submissions, Mr. Bhatta, learned counsel for the appellant/Insurance Company, has relied on a decision of the Hon'ble Apex Court in the case of Ningamma & anr. v. United India Insurance Company Ltd., reported in (2009) 13 SCC

710.

I have heard the submissions of Mr. Bhatta, learned counsel for the appellant/Insurance Company.

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On perusal of the record, it appears that there is no dispute that the accident took-place on 30.01.2020, at Kamakhya Cutting while the deceased A. Sombabu @ Sombabu who was riding the motorcycle bearing Registration No. AS-01-AM-5492, had hit the divider of the road, as a result of which, grievous injuries were caused to the person of the deceased A. Sombabu @ Sombabu who later on succumbed to his injuries on the way to the Railway Hospital. The Jalukbari Police Station U.D. Case No. 11/2010 was registered pursuant thereto and the investigation conducted thereafter, confirmed the accident which took- place on 30.01.2010, resulting in the death of the deceased A. Sombabu @ Sombabu.

There is also no dispute on the fact that Mrs. R. Laxmi/respondent No. 3, herein, is the owner of the motorcycle bearing Registration No. AS-01-AM-5492 which was insured with the appellant/Insurance Company vide Policy No. 53090131090100203065, and valid upto 10.01.2011, which was a Package Policy covering third-party and own damage.

Furthermore, there is no dispute that the deceased A. Sombabu @ Sombabu is not the owner of the motorcycle and the deceased had borrowed it from respondent No. 3, namely, Mrs. R. Laxmi, on 30.01.2010, when the accident took place resulting in the death of the deceased A. Sombabu @ Sombabu.

The limited question of law that arises now for determination in this case is whether the deceased A. Sombabu @ Sombabu who had borrowed the Page No.# 8/10

motorcycle from respondent No. 3, namely, Mrs. R. Laxmi, which motorcycle was insured with the appellant/Insurance Company under a Package Policy covering third party and own damage, would be covered by the said Package Policy so as to bring the deceased A. Sombabu @ Sombabu within the purview of the third party so as to entitle the claimants, to compensation, if any.

The law in this context appears to have been settled in the case relied on by Mr. Bhatta, learned counsel for the appellant/Insurance Company, in Ningamma & anr. v. United India Insurance Co. Ltd. (supra), wherein, in paragraphs No. 21 and 22, it has been held as under:

"21. In our considered opinion, the ratio of the decision in Oriental Insurance Co. Ltd. case is clearly applicable to the facts of the present case. In the present case, the deceased was not 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 t he 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 vehicle, in that case, the owner could not himself be a recipient of 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."

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A perusal of the decision of the Hon'ble Apex Court, referred to hereinabove, indicates that the owner of the vehicle does not come within the purview of the third party. So also, the borrower of the vehicle who has been held to step into the shoes of the owner of the vehicle and accordingly, neither the owner nor the borrower of the vehicle would come within the purview of the third party so as to entitle their legal representatives, a compensation under Section 163(A) of the Motor Vehicle Act, 1988.

In view of the settled position of law as discussed hereinabove; the impugned judgment & award, dated 30.04.2015, passed by the learned Member, MACT No. 2, Kamrup, Guwahati, in MAC. Case No. 464/2013, under Section 163(A) of the Motor Vehicle Act, 1988, in awarding the legal representatives of the deceased A. Sombabu @ Sombabu, a compensation amount to the tune of Rs. 4,67,000/- on the account of the death of the deceased A. Sombabu @ Sombabu due to the death of the deceased as a result of the accident that took place on 30.01.2010 at Kamakhya cutting while riding the motorcycle bearing Registration No. AS-01-AM-5492 which the deceased A. Sombabu @ Sombabu had borrowed from the respondent No. 3, namely, Mrs. R. Laxmi; is found to be unsustainable in law and the same accordingly is liable to be interfered with.

For the foregoing reasons and discussions as made above; the impugned judgment & award, dated 30.04.2015, passed by the learned Member, MACT No. 2, Kamrup, Guwahati, in MAC. Case No. 464/2013, therefore, stands set aside and quashed.

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Registry shall refund the statutory deposit made by the appellant/Insurance Company at the time of filing of the appeal, forthwith.

Remit the LCRs to the Registry of the learned Tribunal, immediately.

JUDGE

Comparing Assistant