Madhya Pradesh High Court
Iffco Tokyo General Insurance ... vs Rekha Singh on 26 June, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 26 th OF JUNE, 2023
MISC. APPEAL No. 108 of 2023
BETWEEN:-
IFFCO TOKYO GENERAL INSURANCE COMPANY LTD.
THROUGH ITS MANAGER, H.NO. 119/22, WARD NO. 21,
CHOURASIYA COMPLEX, REWA ROAD, NEW BUS
STAND, SATNA (MADHYA PRADESH) (INSURANCE
COMPANY)
.....APPELLANT
(BY SHRI RAKESH JAIN - ADVOCATE)
AND
1. REKHA SINGH W/O SHRI ARVIND SINGH, AGED
ABOUT 27 YEARS, OCCUPATION: HOUSEWIFE, R/O
VILLAGE PANWAR, TEHSIL GOPADBANAS,
DISTRICT SIDHI (MADHYA PRADESH)
2. AYUSHMAN SINGH S/O SHRI ARVIND SINGH,
AGED ABOUT 4 YEARS, OCCUPATION: MINOR
THROUGH THEIR NATURAL GUARDIAN MOTHER
REKHA SINGH W/O SHRI ARVIND SINGH R/O
VILLAGE PANWAR TEHSIL GOPADBANAS
(MADHYA PRADESH)
3. RAJVEER SINGH S/O SHRI ARVIND SINGH, AGED
ABOUT 2 YEARS, OCCUPATION: MINOR
THROUGH THEIR NATURAL GUARDIAN MOTHER
REKHA SINGH W/O SHRI ARVIND SINGH R/O
VILLAGE PANWAR TEHSIL GOPADBANAS
(MADHYA PRADESH)
4. SHYAMBAHADUR SINGH S/O DHARMRAJ R/O
VILLAGE NEBUHA POST MAHOULI TEHSIL
MAHOULI (MADHYA PRADESH)
Signature Not Verified
SAN 5. DASHRAT SINGH S/O SHRI BASANT SINGH, AGED
ABOUT 66 YEARS, OCCUPATION: FARMER R/O
Digitally signed by TULSA SINGH
Date: 2023.06.26 19:50:01 IST
VILLAGE NEBUHA P.S AND TEHSIL MAJHOULI
(MADHYA PRADESH)
2
6. SMT. SATYABHAMA W/O SHRI DASHRAT SINGH,
AGED ABOUT 50 YEARS, OCCUPATION:
HOUSEWIFE R/O VILLAGE NEBUHA P.S AND
TEHSIL MAJHOULI (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI VIVEK SHUKLA - ADVOCATE FOR RESPONDENTS NO.1 TO 3)
T h is appeal coming on for orders this day, t h e cou rt passed the
following:
ORDER
This miscellaneous appeal is filed by the Insurance Company being
aggrieved of award dated 14/10/2022 passed by learned 3rd Additional Member
to the Court of 1st Additional Motor Accident Claims Tribunal, Sidhi in MACC
No.96/2020.
2. Appellant's contention is that three facts of the appeal are that deceased-
Arvind Singh had borrowed motorcycle of his cousin brother, i.e. non-applicant
No.2 in claim petition, bearing registration No.M.P. 53 MH 0175 and was
travelling along with his friend Virendra Singh on 26/5/2019. While returning
deceased- Arvind Singh was driving motorcycle and Virendra Singh was sitting
as a pillion rider. Close to Kishan Dhaba on Jorodha bypass at about 11.10 pm
when motorcycle reached at the spot, then a cow which was crossing the road
had hit the motorcycle from behind, as a result motorcycle had fallen down and
deceased died on the spot. Pillion rider Virendra Singh sustained injuries. They
were admitted to District Hospital, Sidhi where Arvind Singh was declared
brought dead and Virendra Singh was treated.
3. It is submitted that in terms of the provisions contained in Section 166
of the Motor Vehicles Act, a claim of the deceased driver of the motorcycle
Signature Not Verified
SAN
who met with an accident due to his own negligence will not be maintainable
Digitally signed by TULSA SINGH
Date: 2023.06.26 19:50:01 IST
under Section 166 of the Motor Vehicles Act. Reliance is placed on the
judgment of Hon'ble Supreme Court in the case of Mohd. Hanif and another
Vs. H.P. Road Transport Corporation and others, (2005) 13 SCC 694.
Similarly, reliance is placed on the judgment of High Court of Madhya Pradesh
in the case of Kanhaiyalal and another Vs. Sitabai and others, 2004 ACJ
1372 and also on the judgment of Hon'ble Supreme Court in the case of
Oriental Insurance Co. Ltd. Vs. Meena Variyal and others, (2007) 5 SCC
4. Shri Vivek Shukla, learned counsel for respondents No.1 to 3, supports
the award and submits that there is no infirmity in the award.
5. After hearing learned counsel for the parties, ratio of law which has been
laid down in the case of Mohd. Hanif and another (supra) is that when victim
sustains injuries due to entire fault of his and the fault of accident lay with the
victim, then application under Section 166 of the Motor Vehicles Act is not
maintainable. In the case of Kanhaiyalal and another (supra) also the ratio
of law is that death of driver took place when the vehicle had met with an
accident due to his own negligence, then claimants are not entitled to
compensation under Section 166 of the Motor Vehicles Act.
6. Reliance is also placed on the earlier decision of Madhya Pradesh High
Court in the case of Krishna Mourya Vs. J.P. Sharma, 1998 ACJ 877
(MP). These judgments are not applicable to the facts of the present case
because firstly accident had not taken place due to negligence of driver of
motorcycle namely Arvind Singh and secondly the language which is used in
Section 165(1) of the Motor Vehicles Act, 1988 is as under :
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SAN
"1 6 5 ( 1 ) A State Government may, by notification in the
Official Gazette, constitute one or more Motor Accidents
Claims Tribunals (hereinafter in this Chapter referred to as
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Date: 2023.06.26 19:50:01 IST
Claims Tribunal) for such area as may be specified in the
notification for the purpose of adjudicating upon claims for
compensation in respect of accidents involving the death of,
or bodily injury to, persons arising out of the use of motor
vehicles, or damages or any property of a third party so
arising or both.
Explanation.- For the removal of doubts, it is hereby declared
that the expression "claims for compensation in respect of
accidents involving the death of or bodily injury to persons
arising out of the use of motor vehicles" includes claims for
compensation under Section 164."
7. Thus, it is evident that word 'or' is used in a disjunctive manner,
therefore, claim is maintainable under Section 166 of the Motor Vehicles Act for
payment of compensation in respect of accidents involving the death of or
bodily injury to persons arising out of the use of motor vehicles, or damages to
any property of a third party so arising or both. In the present case, policy is
available on record as Ex.P/11. Its a comprehensive insurance policy for
STARCITY BSIV 110 ES MAG WHL, motorcycle insured in the name of
Shyam Bahadur Singh. Insurance cover was to commence on 26th November,
2018 and was valid till 25th November, 2019. There is a coverage of
Rs.15,00,000/- under the head of PA cover for owner, driver and premium of
Rs.750/- is charged from the insured. As far as law down by Hon'ble Supreme
Court int he case of Meena Variyal and others (supra) is concerned, that is
on a different aspect. In that case, vehicle was insured for third party risk only.
Vehicle was driven by the employee of the company in whose name vehicle
was registered. It is held that in a case where a person is not a third party
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SAN
within meaning of 1988 Act, insurance company cannot be made automatically
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liable merely by purportedly resorting to ratio of National Insurance Co. Ltd.
Date: 2023.06.26 19:50:01 IST
Vs. Swaran Singh and others, (2004) 3 SCC 297.
8. It is held that in that case, being a Regional Manager of the Company,
that owned the car met his death in an accident while he was using the car given
to him by the company for use. It is held that whether he is treated as an owner
of the vehicle or as an employee, he is not covered by the statutory insurance
since he was not the driver, nor could be he understood as an workman coming
within the 1923 Act. Only by entering into a special contract by the insured
could such a person as he be brought under coverage. There being no such
special contract and he not being a third party, appellant-insurance company
was not obliged under Section 149 to satisfy the award and then have recourse
to the insured owner.
9. In the present case, there is a special contract. Coverage is taken by the
insured for the owner, driver. Premium has been paid insuring the owner, driver
upto the extent of Rs.15,00,000/-. Thus, in view of availability of special
coverage, insurance company is liable to satisfy the award to the extent of the
coverage and that being so, judgment of Meena Variyal and others (supra)
will not be applicable to the facts and circumstances of the case. Further
there is no allegation of any negligence of the driver causing accident. Thus,
other cited judgments are distinguishable.
10. Accordingly, this miscellaneous appeal fails and is hereby dismissed.
Record of the Claims Tribunal be sent back.
(VIVEK AGARWAL)
Signature Not Verified JUDGE
SAN
ts
Digitally signed by TULSA SINGH
Date: 2023.06.26 19:50:01 IST
