The Bajaj Allianz General Insurance Co. ... vs G. Padma
2025 Latest Caselaw 3902 Tel

Telangana High Court

The Bajaj Allianz General Insurance Co. ... vs G. Padma on 13 June, 2025

                                  1


      THE HON'BLE SMT. JUSTICE TIRUMALA DEVI EADA

               M.A.C.M.A.NO.253 & 319 OF 2021

COMMON JUDGMENT:

Both these appeals arise out of the Order and Decree dated

15.06.2020 in M.V.O.P.No.1817 of 2015 passed by the Chairman,

Motor Accident Claims Tribunal-cum-XI Additional Chief Judge,

City Civil Court, Hyderabad (for short "the Tribunal").

2. For convenience and clarity, the parties herein are referred to

as they were arrayed before the Tribunal.

3. The case of the petitioner before the Tribunal was that on

21.01.2012 at about 23:00 hours, the deceased-G. Laxman and his

friend Srinivas were going from Nalgonda to Bhongir on motor bike

bearing No.AP-24-AL-2548 and on the way, when they reached

Chityal Village, an unknown vehicle coming in the same direction,

dashed the motor bike from behind, as a result of which the

deceased and his friend fell down and sustained serious injuries.

The deceased died on the spot. It is their case that the deceased

was hale and healthy and was aged 26 years, he was doing Kirana

Business and used to earn Rs.9,000/- per month. They sought a

compensation of Rs.9,00,000/- by filing a petition under Section

163-A of Motor Vehicles Act.

4. The respondent No.1 remained ex-parte.

ETD,J MACMA Nos.253 & 319_2021

5. The respondent No.2 filed counter denying the averments of

the petition with regard to the occurrence of the accident and the

age, avocation and income of the deceased. They further contended

that as per the FIR an unknown vehicle has hit the motor bike and

thus, it comes under the provisions of Hit and Run cases. Further,

the Insurance Company is not liable to pay any compensation.

They further contended that the deceased did not have a valid

driving license as on the date of accident and that their company

is not liable to pay any compensation.

6. Based on the above pleadings, the Tribunal has framed the

following issues for consideration:-

1. Whether the accident took place due to the rash and negligent driving of the motor bike bearing No.AP-24-AL-2548 causing death of deceased-G. Laxman?

2. Whether the petitioner is entitled for compensation. If so, to what amount and from whom?

3. To what relief ?

7. To prove their case, the petitioner got examined PW1 and

Exs.A1 to A4 were marked. On behalf of the respondents RW1 was

examined and Ex.B1 and B2 were marked.

8. Based on the evidence on record, the Tribunal has awarded a

compensation of Rs.3,70,000/-. Aggrieved by the said order and

decree, the present appeal is filed by the Insurance Company.

ETD,J MACMA Nos.253 & 319_2021

9. Heard Sri A. Rama Krishna Reddy, learned counsel for the

appellant-Insurance Company and Sri T. Vishwarupa Chary,

learned counsel for the respondents.

10. Learned counsel for the Insurance Company has submitted

that the order of the Tribunal is contrary to law and weight of

evidence and that the Tribunal ought to have seen that the

deceased is not a third party, but he is the younger brother of the

insured i.e., respondent No.1 before the trial Court and the said

fact was admitted by PW1 in her evidence. Even then, the Tribunal

failed to consider the said fact. He further argued that the deceased

was driving the vehicle of his brother who is the owner of the

vehicle and that he does not come under the meaning of third

party and therefore, the Tribunal ought not to have entertained the

application. He further argued that the Tribunal has committed

error in quantifying the compensation and has awarded huge

amounts without observing the conditions laid down in the policy.

He further argued that if this Court holds that the deceased is a

third party, then it has to follow the Second Schedule as per the

statute. He therefore, prayed to set aside the order and decree of

the Tribunal by allowing this appeal.

11. Learned counsel for the claimant, on the other hand, has

argued that the deceased is a third party, since he is neither the

insured nor the insurer and that the claim petition is very much ETD,J MACMA Nos.253 & 319_2021

maintainable before the Tribunal. He further, argued that the

Tribunal has granted meagre amounts without following the cost

inflation index and that the Tribunal has simply awarded the

compensation under the second schedule, but failed to consider

the raise in cost of living and the cost inflation index. He therefore,

prayed to enhance the compensation.

12. Based on the above rival contentions, this Court frames the

following points for determination:

1. Whether the deceased is third party? If so, whether the Insurance Company is liable to pay compensation?

2. Whether the compensation granted by the Tribunal is just and reasonable?

3. Whether the order and decree of the Tribunal need any interference?

4. To what relief?

13. Point No.1:

a) The deceased is the brother of respondent No.1 who is the

owner of the motor bike bearing No.AP-24-AL-2548. On the fateful

day, the deceased was going on the said motor bike from Nalgonda

to Bhongir, and on the way he met with an accident as an

unknown vehicle has hit it from behind. The present petition is

filed by the mother of the deceased against the owner and insurer

of the motor bike. Since, it is filed under Section 163-A, the

petitioner need not prove the rash and negligence on part of the

rider of the motor bike. The contention of the appellant counsel is ETD,J MACMA Nos.253 & 319_2021

that since the deceased is the brother of the owner and was riding

the motor bike at the time of accident, the claim would be

restricted to the terms and conditions of the policy.

b) To prove his contention, the counsel for Insurance Company

has relied upon Ningamma and another Vs. United Indian

Assurance Company Limited 1; in the said case the deceased was

travelling on Hero Honda motor bike, which he borrowed from its

real owner. It was held in the said case by the Apex Court that a

bare perusal of Section 163-A would make it explicitly clear that

the 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 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 cycle, in

that case the owner could not himself be a recipient of

compensation, as a liability to pay the same is on him.

c) The counsel for Insurance Company has also relied upon

National Insurance Company Limited Vs. Sinitha and Others 2;

AIR 2009 SC 3056

1 (2012) ACC 524 (SC) ETD,J MACMA Nos.253 & 319_2021

wherein it was held that Section 163-A of the Act is founded under

the "No Fault" liability principle.

d) He further relied upon New India Assurance Company

Limited Vs. Sadanand Mukhi and Others 3; wherein the son of

the insured while driving the motor bike met with an accident and

died. In the said case, it was held that the driver of the vehicle is

not a third party and as such, the Tribunal has no jurisdiction to

pass any order under Motor Vehicles Act.

e) Relying on the said Judgment, a Coordinate Bench of this

High Court in Oriental Insurance Company Limited Vs. Patha

Gangamma and Others 4; has held that the deceased who is the

son of the owner of the vehicle, died in an accident while driving

the said vehicle, is not a third party and he is only a legal heir of

the insured and as such, the insurer is not liable to pay any

compensation, since the risk of the deceased was not covered by

the Policy.

f) On the other hand, the counsel for claimant has relied upon

New India Assurance Company Limited Vs. Shanti Bopanna

and Others 5; in the said case, the deceased was travelling in a car

which belongs to his employer and it was driven by another

(2009) 2 SCC 417

2020 (56) ALD 167 (TS)

AIR 2017 SC 2857 ETD,J MACMA Nos.253 & 319_2021

person. It was contended by the Insurance Company that the

deceased is not a third party, because he was an employee sitting

in the car. It was held in the said case that the deceased was

indeed a third party being neither the insurer nor the insured.

g) Learned counsel for the claimant has further relied upon the

decision of a Division Bench of this High Court between Oriental

Insurance Company Limited Vs. Ramisetty Srinivasa Rao and

Others 6; the petitioners case is that he was going along with his

wife and two other employees in a Maruthi Car which met with an

accident, as its driver drove the car in a rash and negligent

manner. His wife is the owner of the car and it is also put forth

that he is the only earning member of his family. Thus, the

Insurance Company has contended that the injured-petitioner is

the defacto-owner of the car and thus, the Company is not liable to

pay any compensation, since he steps into the shoes of the owner

and that he is not a third party. The Bench has held that the term

'third party' implies any person other than the insurer and the

insured, who are not parties to insurance contract. In the said

case the deceased was not driving the vehicle at the time of

accident, but in the present case, the deceased was driving the

vehicle with which the accident occured.

2024 (2) ALD 828 (TS) (DB) ETD,J MACMA Nos.253 & 319_2021

h) The counsel has also drawn the attention of this Court to

Bajaj Allianz General Insurance Company Limited Vs.

Gaddam Swami Reddy and another 7; wherein a Coordinate

Bench of this High Court has held that to fasten the liability on the

Insurance Company, the claimant is required to establish that he

is either a third party or that his risk is covered under the terms

and conditions of the policy. In the said case, the injured-petitioner

who was driving the car, dashed a tree on the road side and thus,

sustained fracture injuries. The Bench held that the claimant in

the instant case is admittedly not a third party and that he did not

adduce any evidence showing that the accident occurred in the

course of his employment with the respondent No.2 who is the

owner of the vehicle or that under the terms and conditions of the

policy, under which the car involved in the accident was insured

with the appellant-Insurance Company, his risk is covered. With

the said observation, the appeal filed by the Insurance Company

was allowed.

i) A perusal of Ex.B1/Policy reveals that it covers the risk of

owner-driver to an extent of Rs.1,00,000/-. It is further mentioned

that the term 'driver' includes "any person including the insured

provided that a person driving holds an effective driving license at

the time of the accident and is not disqualified from holding or

2013 ACJ 2586 ETD,J MACMA Nos.253 & 319_2021

obtaining such a license. Provided also that the persons holding an

effective Learner's license may also drive the vehicle when not used

for the transport or goods/passengers at the time of the accident

and that such a person satisfies the requirements of Rule 3 of the

Central Motor Vehicle Rules, 1989".

j) Thus, after going through all the above cited decisions, it is

inferred that the deceased is not a third party in the present case

as he was driving the vehicle of the insured and that he falls under

the term "driver" as mentioned in the policy. The claim petition

filed by the mother of the deceased is maintainable and the

Insurance Company is liable to pay compensation as per the terms

and conditions of the Policy.

k) The Ex.B1/Policy reveals that a premium of Rs.50/- is paid

towards PA coverage of owner-driver. Thus, it is held that the

Insurance Company is liable to pay compensation to the petitioner

to the extent of limited liability mentioned in the policy.

Point No.1 is answered accordingly.

14. Point No.2:-

a) The contention of the learned counsel for the Insurance

Company is that if the deceased is held to be a third party and

when the claim petition is filed under Section 163-A, the annual

income of the deceased cannot be more than Rs.40,000/- as per

the Second Schedule of the Motor Vehicles Act.

ETD,J MACMA Nos.253 & 319_2021

b) On the other hand, the counsel for the claimant contended

that the deceased is a third party and the compensation under

Section 163-A has to be granted by taking into consideration, the

cost inflation index in addition to the second schedule.

c) In support of their contentions, they have relied upon several

decisions of Apex Court and High Courts.

d) It is already held under point No.1 that the deceased falls

under the term 'driver' as mentioned in the policy and the claimant

is entitled to compensation of Rs.1,00,000/- as stipulated in the

policy covering the risk of owner-driver.

Point No.2 is answered accordingly.

15. POINT NO.3:-

In view of the finding arrived at point No.1 and 2, it is held

that the order and decree of the Tribunal does not need any

interference with regard to the liability of respondents and the

same is upheld. But with regard to quantum of compensation, it

needs to be reduced from Rs.3,70,000/- to Rs.1,00,000/-.

Point No.3 is answered accordingly.

16. POINT NO.4:

In the result, the MACMA.No.319 of 2021 filed by the

claimant is dismissed and MACMA.No.253 of 2021 filed by the ETD,J MACMA Nos.253 & 319_2021

Insurance Company is partly allowed modifying the Order and

Decree dated 15.06.2020 in M.V.O.P.No.1817 of 2015 passed by

the Chairman, Motor Accident Claims Tribunal-cum-XI Additional

Chief Judge, City Civil Court, Hyderabad, reducing the

compensation from Rs.3,70,000/- to Rs.1,00,000/- which shall

carry interest @ 7.5% per annum from the date of claim petition till

realization. However, the record shows that the claimant has

already withdrawn 50% of the compensation deposited by the

Insurance Company. Therefore, this Court is not inclined to

interfere with the amount that is already received by the claimant

and if at all the amount that is already received by the claimant is

found to be in excess, the same shall not be recovered by the

insurer keeping in view the objective of beneficial legislation. No

costs

Miscellaneous petitions, pending if any, in this appeal, shall

stand closed.

_________________________________ JUSTICE TIRUMALA DEVI EADA

Date:13.06.2025 ds ETD,J MACMA Nos.253 & 319_2021

THE HON'BLE SMT. JUSTICE TIRUMALA DEVI EADA

M.A.C.M.A.NOS.253 & 319 OF 2021 Date: 13.06.2025.

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