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2012 DIGILAW 3 (CHH)

New India Insurance Co Ltd. v. Prahlad Sahu

2012-01-03

N.K.AGARWAL

body2012
JUDGMENT : N.K. AGARWAL, J. 1. This is insurer's appeal against the award dated 30th July, 2010 passed by the Additional Motor Accident Claims Tribunal (FTC), Khairagarh (for short 'the Tribunal') in motor accident claim case No. 44/07. 2. As against compensation of Rs. 24,82,400/- claimed by the claimant/respondent No.1 by filing application before the Tribunal under Section 163-A of the Motor Vehicles Act, 1988 (for short 'MV Act') for the injuries sustained by him in the motor accident on 29.03.2007, the Tribunal awarded a total sum of Rs. 50,000/- against the appellant as well as respondent No.2 along with interest @ 6 percent per annum from the date of application till its actual payment. 3. The Tribunal, on a close scrutiny of the evidence led, held: respondent No.1 Prahlad Sahu sustained multiple injuries while driving motor cycle bearing registration No. C.G. 08 E 8540 on 29.03.2007 resulting into permanent disability to the extent of 70%; appellant/the New India Insurance Company Limited liable for payment of compensation as it could not prove violation of policy conditions; liability of the insurance company is to the extent of 50,000/- only; and awarded Rs. 50,000/- as compensation along with interest @ 6 percent per annum from the date of application till its actual payment. 4. Shri H.B. Agrawal, learned Senior Advocate with Shri Pankaj Agrawal, appearing for the appellant would submit,: the Tribunal has erred in holding, respondent No.1 is a third party and also in holding by taking extra premium of Rs. 35/-, the risk of driver of the motor cycle has been covered by the insurance company and thus has erred in fastening liability of payment of compensation upon the appellant/insurance company. 5. On the other hand, Shri R.N. Jha, learned counsel appearing for the respondent No. 2 supported the award impugned. 6. Shri Abhishek Sharma, learned counsel appearing for respondent No.1 submitted that the amount of compensation awarded by the Tribunal is shockingly on lower side, and therefore, the cross-objection preferred by respondent No.1 may be allowed and the amount of compensation may suitably be enhanced. 7. I have heard the counsel appearing for the parties and perused the order impugned including records of the Tribunal. 8. 7. I have heard the counsel appearing for the parties and perused the order impugned including records of the Tribunal. 8. As per the claim petition, Prahlad Sahu was driving the motor cycle-Bajaj; the same was slipped and turned turtle, due to such accident, he sustained multiple injuries resulting into permanent disability to the extent of 70 per cent. As per claimant's version, he is a carpenter and used to earn Rs. 2400-2500/- per month. The claimant examined his father-Bharat Ram Sahu as A.W.2. As per his statement also, the claimant Prahlad is working as Carpenter. It was not the case of the claimant that he was working under the employment of respondent No.2, therefore, he cannot be said to be employee of respondent No.2. He borrowed the motorcycle from its real owner. He would step into shoes of the owner of the motorcycle. 9. The Supreme Court in the case of Ningamma and another v. United India Insurance Company Limited, (2009) 13 SCC 710 has observed in para 18 & 19 as under: "18. In the case of Oriental Insurance Company Ltd. v. Rajni Devi & Others (2008) 5 SCC-736, wherein one of us, namely Hon'ble Justice S.B. Sinha is 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. It was held in the said decision that Section 163-A of the MVA cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved. The decision further held that the question is no longer res integra. The liability under Section 163-A of the MVA is on the owner of the vehicle. So a person cannot be both, a claimant as also a recipient, with respect to claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163-A of the MVA. In our considered opinion, the ratio of the aforesaid decision is clearly applicable to the facts of the present case. So a person cannot be both, a claimant as also a recipient, with respect to claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163-A of the MVA. In our considered opinion, the ratio of the aforesaid decision 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 employee of the owner of the motorbike although he was authorised to drive the said vehicle by its owner, and therefore, he would step into the shoes of the owner of the motorbike. 19. 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. 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 motor 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. 10. Further, a bare perusal of the policy (Ex.D.2) would reveal, the appellant/insurance company has charged Rs. 160/- under T.P. Basic and by charging Rs. 35/- covered the risk of one unnamed passenger to the extent of Rs. 50,000/-. The words "unnamed passenger" would certainly mean "pillion rider" and not the driver of the vehicle. Indisputably, the claimant Prahlad is driver of the motor cycle and was not sitting on motor cycle as its passenger, i.e., pillion rider. 35/- covered the risk of one unnamed passenger to the extent of Rs. 50,000/-. The words "unnamed passenger" would certainly mean "pillion rider" and not the driver of the vehicle. Indisputably, the claimant Prahlad is driver of the motor cycle and was not sitting on motor cycle as its passenger, i.e., pillion rider. The risk of the driver was not undertaken by the appellant/insurance company, therefore, the Tribunal has certainly erred in fastening the liability of the payment of compensation upon the insurance company, which on the face, is not sustainable in law. 11. In the light of above, the cross-objection preferred by respondent No.1/claimant is also devoid of merit inasmuch as the claimant not being a third party, the claim petition itself was not maintainable. 12. For the reasons mentioned hereinabove, the appeal preferred by the appellant/insurance company is allowed. The cross-objection preferred by respondent No.1/claimant is dismissed. The award impugned passed against the appellant is set aside. If any amount is deposited by the appellant/insurance company and the same is disbursed to the claimant, the appellant/insurance company shall be free to recover the same by filing simple execution petition before the concerned Claims Tribunal. 13. No order as to costs.