Gujarat High Court
United India Insurance Company ... vs Aprubhai Bapubhai @ Balubhai ... on 20 September, 2023
Bench: Ilesh J. Vora
NEUTRAL CITATION
C/FA/4392/2008 ORDER DATED: 20/09/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4392 of 2008
==========================================================
UNITED INDIA INSURANCE COMPANY LTD
Versus
APRUBHAI BAPUBHAI @ BALUBHAI KHACHAR & 1 other(s)
==========================================================
Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR.HIREN M MODI(3732) for the Defendant(s) No. 2.1,2.2,2.3
RULE SERVED for the Defendant(s) No. 1,2.4,2.5,2.6
==========================================================
CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 20/09/2023
ORAL ORDER
1. The United India Insurance Company, being aggrieved
and dissatisfied with the judgment and award passed by the
Tribunal at Bhavnagar, has preferred the present appeal under
Section 173 of the Motor Vehicle Act.
2. The respondents herein being legal heirs and
representatives of deceased Dinesh Hamirbhai Makwana, who
died at the age of 27 years in a road accident. On 05.05.2000,
the motorbike owned by one Amrubapu, slipped down on the
roadside, as a result of which, the deceased being a rider of
the vehicle, sustained a fatal injury and died on the spot. The
respondents herein had filed a claim petition, by invoking
Section 163A of the Motor Vehicle Act before the Claim
Tribunal at Bhavnagar. The claim tribunal, Bhavnagar vide its
judgment and award dated 16.05.2008, on the basis of
structured formula, awarded a sum of amount of Rs.2,97,500/-
to the legal heirs of the deceased. The tribunal, despite the
objections raised by insurance company about the legal
liability to pay the amount of compensation, did not consider
NEUTRAL CITATION
C/FA/4392/2008 ORDER DATED: 20/09/2023
undefined
the contentions of the liability and passed the award.
3. The appellant United India Insurance Company with
whom the motorbike was insured, by filing of this appeal raised
the legal issue that the deceased himself had caused the
accident and being a borrower of the vehicle, he stepped into
shoes of the owner and therefore, he was not third party and
therefore, a person cannot be both a claimant as also a
recipient.
4. This Court has heard learned counsel Mr. Vibhuti
Nanavati and Mr. Hiren Modi for the respective parties.
5. Mr. Vibhuti Nanavati, learned counsel appearing for the
appellant company assailing the judgment and award, has
submitted that, the judgment and award, fastening the liability
on the insurance company is against the statutory provisions
and the law laid down by the Apex Court in its various
judgments. He submitted that, the learned tribunal failed to
appreciate that, the deceased himself was driving the
motorbike and as per the condition of the policy, risk of the
driver was not covered and the deceased was borrower of the
vehicle and he cannot be termed as a third party and on that
count, the risk of the deceased is not also require to be
assumed within the provisions of Section 147 of the Motor
Vehicle Act, 1988.
6. On the other hand, countering the submissions, Mr. Hiren
Modi, learned counsel for the respondents submitted that, it is
not open to the insurance company to raise the defense as
NEUTRAL CITATION
C/FA/4392/2008 ORDER DATED: 20/09/2023
undefined
provided under Section 147 of the Act. Referring to Section
2(30) of the Motor Vehicle Act, he submitted that, the person in
whose name the vehicle stands registered in the record of
Registering Authority as owner of vehicle, is treated to be
owner of the vehicle and the person who borrowed the vehicle
from the owner is not recognized as the owner of the vehicle.
Thus, therefore, he submitted that, the impugned judgment
and award is being passed in consonance with the statutory
provisions as well as preposition of law laid down by the Apex
Court, does not warrant any interference.
7. Having heard the learned counsel for the respective
parties, the issue arise for determination of this Court is as to
whether the tribunal was justified in passing the judgment and
award by fastening the liability on the appellant-insurance
company?
8. On the facts of the present case, it appears that, the
deceased himself was negligent and due to his negligence, the
alleged accident took place. It is not in dispute that, the vehicle
in question belongs to one Amrubapu @ Balubhai Khachar -
respondent no.1 herein and he is the registered owner of the
vehicle and on the date of accident, the deceased by
borrowing the said vehicle, had gone to the referred place for
his personal work.
9. It is settled position of law that grant of compensation
under Section 163A of the Act on the basis of the structured
formula is in the nature of final award and the adjudication
thereunder is require to be made without any requirement of
NEUTRAL CITATION
C/FA/4392/2008 ORDER DATED: 20/09/2023
undefined
any proof of negligence of the driver-owner of the vehicle(s)
involved in the accident. So on the aspect of negligence, when
the petition is filed under Section 163A of the Act, the defense
for the insurance company to raise the issue of negligence
would not be available.
10. In the facts of the present case, it is not denied or
challenged by the claimants that, deceased was not driving the
bike and admittedly, the vehicle was borrowed from its owner -
respondent no.1 herein. In the case of Prabha Devi (2013 ACJ
1382), the Apex Court, while interpreting Section 147 of the
Act, observed that, the 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 its 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. It was further held that, Section 147 does not
require an insurance company to assume risk of death of or
bodily injury to the owner of the vehicle. The liability of an
insurance company is only for the purpose of indemnifying the
insured against liabilities incurred towards third person or in
respect of damages to the property. Thus, the Apex Court
categorically held that, where the insured i.e. owner of the
vehicle has no liability to third party, the insurance company
has no liability also.
11. In the case of Ningamma (2009 ACJ 2020), the Apex
Court in the identical matter held that, if it is proved that, the
person i.e. deceased stepped into shoes of the owner of the
vehicle, the legal representative of the deceased could not
NEUTRAL CITATION
C/FA/4392/2008 ORDER DATED: 20/09/2023
undefined
have claimed compensation under Section 163A of the Motor
Vehicle Act. The basic principle considered by the Apex Court
is that, the owner could not himself be a recipient of
compensation as the liability to pay the same is on him.
12. In light of the settled position of law, this Court is of
considered view that, the deceased being a borrower of the
vehicle, had stepped into the shoes of the owner of the vehicle
and therefore, the respondents being legal representatives of
the deceased are not legally entitled to claim the amount of
compensation from the insurance company. The findings about
fastening the liability of the appellant-insurance company are
erroneous and contrary to the preposition of law enunciated by
the Apex Court in the case of Ningamma (supra). Thus,
therefore, the tribunal fell in error while fastening the liability
to pay the compensation. The findings and conclusion arrived
at by the tribunal, directing the appellant-insurance company
to pay the amount of compensation are not sustainable at law
and same is quashed and set aside.
13. Accordingly, the present appeal is allowed. The appellant-
insurance company is hereby exonerated from its liability to
pay the amount of compensation. The tribunal shall refund the
amount of Rs.25,000/- deposited by the appellant-insurance
company. If any other amount is deposited by the insurance
company, the same shall be refunded with accrued interest.
Decree be drawn accordingly.
(ILESH J. VORA,J)
TAUSIF SAIYED
