Research › Search › Judgment

Delhi High Court · body

2012 DIGILAW 145 (DEL)

Oriental Insurance Co. Ltd. v. Kavita Singal

2012-01-13

G.P.MITTAL

body2012
JUDGMENT : G.P. Mittal, J. The Appellant Oriental Insurance Co. Ltd. impugns the award dated 20.08.2009 passed by the Motor Accident Claims Tribunal whereby a compensation of Rs. 1,00,000/- as personal accident insurance cover was awarded in favour of the Respondents No.1 to 3 who are the legal heirs of deceased Vikas Singhal. He died in an accident, which took place on 19.11.2006. The finding that the accident was caused on account of deceased's own negligence is not disputed as the Respondents No.1 to 3 have not filed any appeal or cross-objection against the judgment. The Tribunal relying on the judgment of the Supreme Court in Oriental Insurance Co. Ltd. Vs. Rajni Devi and Others, (2008) 5 SCC 736 and Ningamma and Another Vs. United India Insurance Co. Ltd., (2009) 13 SCC 710 , held that the deceased stepped into the shoes of the owner i.e. Respondent No.4 Vineet Singhal and was, therefore, entitled to a compensation of Rs. 1,00,000/- as personal accident insurance cover. 2. In my view the Tribunal misinterpreted the judgment in Ningamma (supra), it was nowhere laid down in Ningamma that a personal accident cover made in respect of the owner - driver would extend to anybody driving the two wheeler covered by the policy of insurance. Ningamma and Rajni Devi (supra) were in the context that compensation u/s 163 (A) cannot be claimed by an owner or anybody driving the vehicle with the permission of the owner (not being his employee) against his own insurer as in respect of 3rd party risk, the liability of insurance company is to indemnify the owner. The relevant portion of the report in Nigamma (supra) is extracted hereunder: - 18. However, in the facts of the present case, it was forcefully argued by the counsel appearing for the respondent that the claimants are not the "third party", and therefore, they are not entitled to claim any benefit u/s 163-A of the MVA. In support of the said contention, the counsel relied on the decision of this Court in Oriental Insurance Co. Ltd. Vs. Rajni Devi and Others, and New India Assurance Company Ltd. Vs. Sadanand Mukhi and Others, (2009) 2 SCC 417 . 19. In Oriental Insurance Co. In support of the said contention, the counsel relied on the decision of this Court in Oriental Insurance Co. Ltd. Vs. Rajni Devi and Others, and New India Assurance Company Ltd. Vs. Sadanand Mukhi and Others, (2009) 2 SCC 417 . 19. In Oriental Insurance Co. Ltd. v. Rajni Devi (supra) wherein one of us, namely, Hon'ble S.B. Sinha, J. was 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 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. xxxxx xxxxx xxxxx 21. In our considered opinion, the ratio of the decision in Oriental Insurance Co. Ltd. v. Rajni Devi (supra) 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 an employee of the owner of the motorbike although he was authorized to drive the 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 u/s 163-A. But if it is proved that the driver is the owner of the motor vehicle, in that 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 u/s 163-A of the MVA. 23. 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 u/s 163-A of the MVA. 23. 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 u/s 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. 3. A perusal of the insurance policy placed on record shows that an additional premium of Rs. 50/- was paid for owner-driver under GR-36A. An order dated 11.12.2009 was passed by this Court (in this case); relevant portion of the order is extracted hereunder: - GR.36. Personal Accident (PA) Cover under Motor Policy (not applicable to vehicles covered under Sections E, F and G of Tariff for Commercial Vehicles) A. Compulsory Personal Accident Cover for Owner-Driver Compulsory Personal Accident Cover shall be applicable under both Liability Only and Package policies. The owner of insured vehicle holding an effective driving licence is termed as Owner-Driver for the purposes of this section. Cover is provided to the Owner-Driver whilst driving the vehicle including mounting into/dismounting from or travelling in the insured vehicle as a co-driver. NB.: This provision deals with Personal Accident cover and only the registered owner in person is entitled to the compulsory cover where he/ she holds an effective driving licence. Hence compulsory PA cover cannot be granted where a vehicle is owned by a company, a partnership firm or a similar body corporate or where the owner-driver does not hold an effective driving licence. In all such cases, where compulsory PA cover cannot be granted, the additional premium for the compulsory P.A. cover for the owner-driver should not be charged and the compulsory P.A. cover provision in the policy should also be deleted. Where the owner-driver owns more than one vehicle, compulsory PA cover can be granted for only one vehicle as opted by him/her. Where the owner-driver owns more than one vehicle, compulsory PA cover can be granted for only one vehicle as opted by him/her. The scope of the cover, Capital Sum Insured (CSI) and the annual premium payable under this section are as under:- TYPE OF VEHICLES CAPITAL SUM INSURED (Rs.) PREMIUM (Rs.) COVER Motorised Two Wheelers 1 lakh 50/- i. 100% of CSI for Death, Loss of Two Limbs or sight of both eyes or one limb and sight of one eye. ii. 100% from Permanent Total Disablement for injuries other than named above. Private Cars 2 lakhs 100/- i. 100% of CSI for Death, Loss of Two Limbs or sight of both eyes or one limb and sight of one eye. ii. 100% for Permanent Total Disablement from injuries other than named above. Commercial Vehicles 2 lakhs 100/- i. 100% of CSI for Death, Loss of Two Limbs or sight of both eyes or one limb and sight of one eye. ii. 50% of CSI for Loss of one Limb or sight of one eye. iii. 100% from Permanent Total Disablement from injuries other than named above. B. Optional Personal Accident Cover for persons other than Owner-Driver The cover under this section is limited to maximum Capital Sum Insured (CSI) of Rs. 2 lacs per person. Cover is available only in respect of the following persons: - 1. Private Cars including three wheelers rated as Private cars and motorized two wheelers with or without side car (not for hire or reward): For insured or any named person other than the paid driver and cleaner. Endorsement IMT - 15 is to be used 2. Private Cars, three wheelers rated as Private cars and Motorsied Two Wheelers (not used for hire or reward) with or without side car: For unnamed passengers limited to the registered carrying capacity of the vehicle other than the insured, his paid driver and cleaner. Endorsement IMT - 16 is to be used. 3. In respect of all classes of vehicles: For paid drivers, cleaners and conductors. 4. Motorised Two Wheelers with or without side car (used for hire or reward): For unnamed hirer/ driver. Endorsement IMT - 1 is to be used. Endorsement IMT - 16 is to be used. 3. In respect of all classes of vehicles: For paid drivers, cleaners and conductors. 4. Motorised Two Wheelers with or without side car (used for hire or reward): For unnamed hirer/ driver. Endorsement IMT - 1 is to be used. The scope of the cover, Capital Sum Insured and the annual premium payable under this section would be as under:- DESCRIPTION OF BENEFITS % OF CAPITAL SUM INSURED PREMIUM FOR EVERY UNIT OF CSI OF Rs. 10,000/- OR PART THEREOF (IN Rs.) Pvt. Car Mot. Two Wheeler Com. Veh. i) Death only 100% 5 7 6 ii) Loss of Two Limbs or sight of two eyes or one limb and sight of one eye. 100% 5 7 6 ii) Loss of one Limb or Sight of one eye. 50% 5 7 6 iii) Permanent Total Disablement from injuries other than named above. 100% 5 7 6 4. It is clearly mentioned in India Motor Tariff under GR-36 that this personal accident cover is available to the owner of the insured vehicle holding an effective driving licence. Anybody driving the vehicle with or without permission of the owner cannot be taken as owner-driver. The policy of insurance company is contractual. The compensation of Rs. 1,00,000/- was not payable to Respondents No.1 to 3. 5. The impugned order cannot be sustained and the Insurance Company cannot be made liable to pay the compensation. 6. The Appeal is allowed and the impugned order is set-aside. The amount of Rs. 1,00,000/- along with interest, if any, and the statutory amount shall be refunded to the Appellant Oriental Insurance Co. Ltd.