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2013 DIGILAW 349 (PNJ)

NEW INDIA ASSURANCE CO. LTD. v. KARAMJIT

2013-03-13

MUTTACI JEYAPAUL

body2013
JUDGMENT : M. Jeyapaul, J. The insurance company has challenged the award passed by the Tribunal directing it to pay compensation in the claim petition filed by the claimants u/s 163-A of the Motor Vehicles Act (for short 'the Act'). The widow and two minor children of deceased Ravi Kumar are the claimants in the claim petition. They have contended that on 25.12.2007, Ravi Kumar slipped down from the scooter bearing registration No. CH 03-Q 2825 when he was returning to his village. In spite of the medical treatment given to him, he succumbed to the injuries he sustained on 27.12.2007 on account of the use of the offending scooter. They claimed compensation to the tune of Rs. 6,00,000 along with interest at 12 per cent per annum u/s 163-A of the Act. 2. The respondent No. 2, insurance company, filed written statement taking a usual plea that the driver of the offending scooter was not holding an effective driving licence at the time of the alleged accident and that the offending scooter was not insured with the respondent No. 2. Having contended that the claimants were not entitled to any compensation, the respondent No. 2 prayed for dismissal of the claim petition. 3. The Tribunal held that the accident took place on account of the use of the scooter bearing registration No. CH 03-Q 2825 owned by Kanta Devi, the respondent No. 1 in the claim petition. The insurance company set up a plea that deceased Ravi Kumar who was the son of the respondent No. 1, Kanta Devi, having stepped into the shoes of Kanta Devi drove the scooter and slipped down therefrom and sustained injuries. Inasmuch as Kanta Devi cannot be a claimant as well as a recipient of the award, the claim petition was dismissed relying upon two decisions of this court. The Tribunal having found that deceased Ravi Kumar held a valid driving licence and the subject offending vehicle owned by the respondent No. 1 was insured with a package insurance policy, the Tribunal directed the respondent No. 2 to pay the compensation. 4. The Tribunal having found that deceased Ravi Kumar held a valid driving licence and the subject offending vehicle owned by the respondent No. 1 was insured with a package insurance policy, the Tribunal directed the respondent No. 2 to pay the compensation. 4. The learned counsel appearing for the appellant insurance company would vehemently submit that in the claim petition filed u/s 163-A of the Motor Vehicles Act, 1988, the owner of the vehicle in whose shoes the borrower of the vehicle had stepped into cannot be a claimant as well as a recipient of the compensation. He cited a decision of the Hon'ble Apex Court to fortify his contention. It is his further submission that Ravi Kumar who was not the owner of the offending scooter cannot also claim any amount under the personal accident policy taken by the owner of the vehicle. Therefore, it is his submission that the claim petition is liable to be dismissed. 5. Per contra, learned counsel appearing for the claimants would vehemently submit referring to two decisions of this court that the insurance company is liable to pay the compensation even if the driver of the vehicle being the relative of the owner drove the vehicle and sustained any injury in the accident in a case where a comprehensive policy was taken and premium for personal accident claim also has been paid by the insured. 6. The following two issues have arisen for determination in this appeal : (i) Whether the claimants who are the legal representatives of the deceased driver who borrowed the vehicle from the owner thereof can claim compensation from the insurance company u/s 163-A of the Motor Vehicles Act, 1988? (ii) Whether the legal representatives of the deceased driver who borrowed the vehicle from the owner thereof could make a claim under the personal accident policy taken by the owner of the vehicle? 7. Section 163-A of the Motor Vehicles Act, 1988 would read that the owner of the motor vehicle or the authorised insurer shall be liable to pay the compensation in case of death or permanent disablement due to accident arisen out of the use of the motor vehicle, as indicated in the Second Schedule, to the legal heirs or the victim as the case may be. It has been made clear under the aforesaid provision that claimants shall not require to plead or establish that death or permanent disablement was due to any wrongful act of the owner of the vehicle or any other person. 8. In Ningamma and Another Vs. United India Insurance Co. Ltd., (2009) 13 SCC 710 , the Hon'ble Apex Court has held as follows : (19) We have already extracted section 163-A of the Motor Vehicles Act hereinabove. 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 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 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 Motor Vehicles Act. 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 Motor Vehicles Act. 9. The above ratio would make it clear that a borrower of the vehicle would naturally step into the shoes of the owner of the vehicle in case he dies or encounters permanent disablement. As the owner cannot himself make a claim as well as receive compensation, the legal representatives of the deceased driver who stepped into the shoes of the owner cannot make any claim for compensation u/s 163-A of the Motor Vehicles Act. 10. In a subsequent decision of this court in United India Insurance Company Ltd. Vs. Angrej Singh and Another, (2012) ACJ 1329, this court followed the aforesaid decision and held that the injured-claimant who was none other than the brother of the owner of the vehicle could not make any claim invoking the provision u/s 163-A of the Act, inasmuch as he virtually stepped into the shoes of his brother who was the owner of the vehicle. 11. 11. A Division Bench of this court in New India Assurance Company Ltd. Vs. Shyamo Chauhan and Others, (2006) ACJ 923, has held as follows : Thus, from a perusal of the provisions of section 163-A of the Act, it would be clear that the owner and the insurance company would be liable to pay the compensation amount to the legal heirs of the deceased in the case of death where the accident had taken place 'arising out of the use of motor vehicle'. Even if the deceased was the driver of the motor vehicle in question, still the owner and the insurance company of the said motor vehicle would be liable to pay compensation to the legal heirs of the deceased under the 'no fault liability' u/s 163-A of the Act. 12. The above view was taken by the Bench of this court earlier to the decision of Ningamma' S case (supra) by the Hon'ble Supreme Court. 13. In the light of the ratio laid down by the Hon'ble Apex Court in Ningamma's case (supra), in my view, the decision in Shyamo Chauhan's case (supra) no longer holds the field. 14. In New India Assurance Co. Ltd. Vs. Umesh Kumari and Others, (2011) 3 TAC 182, referring to the decision of the Hon'ble Apex Court in Ningamma's case (supra) held that if a comprehensive policy had been taken and compulsory premium for personal accident policy had been paid to cover the risk of the owner-cum-driver, the insurance company was liable to answer the claim made even u/s 163-A of the Motor Vehicles Act, 1988. 15. In the instant case, the insurance policy taken by respondent No. 1, Kanta Devi, would go to show that though it was a comprehensive policy, she had paid compulsory premium for personal accident to cover the owner-cum-driver only to an extent of Rs. 1,00,000. 16. In my considered view, the Tribunal has misquoted the decisions in Shyamo Chauhan's case (supra) and Umesh Kumari's case (supra), when Ningamma's case (supra) is virtually holding the field. 17. 1,00,000. 16. In my considered view, the Tribunal has misquoted the decisions in Shyamo Chauhan's case (supra) and Umesh Kumari's case (supra), when Ningamma's case (supra) is virtually holding the field. 17. In view of the ratio laid down by the Hon'ble Supreme Court in Ningamma's case (supra), I hold that the legal heirs of deceased Ravi Kumar who stepped into the shoes of his mother Kanta Devi who was the owner of the ill-fated scooter cannot lawfully make a claim for compensation invoking the provision u/s 163-A of the Motor Vehicles Act, 1988 as the owner of the vehicle cannot be a claimant as well a recipient of the compensation awarded in the claim petition. 18. With regard to the second issue which has arisen for determination, learned counsel appearing for appellant insurance company cited a decision of this court in The New India Assurance Company Limited Vs. Veerpal Kaur and Others, (2012) ACJ 1367. That was, of course, a case which had arisen out of a claim made by the L.Rs. of the deceased driver who borrowed the vehicle from the owner and drove the same and met with an accident and died. This court has chosen to direct the insurance company to pay a sum of Rs. 50,000 towards no fault liability u/s 140 of the Motor Vehicles Act, 1988. In yet another case in Sushila and Others Vs. Sh. Pankaj Mahajan and Another, (2013) 169 PLR 715, taking a similar view, this court directed the insurance company to pay a sum of Rs. 50,000 towards no fault liability u/s 140 of the Motor Vehicles Act. 19. In the aforesaid two cases there was no occasion for the court to consider the plea whether the legal representatives of the deceased driver who borrowed the vehicle from the registered owner could make a claim under the personal accident cover taken by the owner of the vehicle on the ground that the deceased driver who borrowed the vehicle from the owner had stepped into the shoes of the owner and thereby became, for practical purposes, the owner himself as far as the claim made u/s 163-A of the Act is concerned. Therefore, those decisions would not come to the rescue of the insurance company. 20. Therefore, those decisions would not come to the rescue of the insurance company. 20. The claim of the legal representatives of the deceased driver who borrowed the vehicle from the registered owner is negatived only on the ground that the driver who borrowed the vehicle had stepped into the shoes of the owner. The insurance company cannot avoid its liability once for all on the plea that the owner of the vehicle had not sustained injury driving the vehicle for making a claim under the personal accident coverage. In other words, the insurance company cannot be permitted to play hot and cold. In my considered view, once the driver who borrowed the vehicle from the owner has become the owner of the vehicle for all practical purposes, then the insurance company is liable to pay compensation payable to the owner under the personal accident coverage. Therefore, I hold that in all cases where the premium for personal accident of the owner-cum-driver has been paid, the legal representatives of the driver or the injured driver who becomes the owner of the vehicle for all practical purposes u/s 163-A of the Act is entitled to claim the compensation from the insurance company under the personal accident coverage. In the instant case, there is no dispute to the fact that a compulsory personal accident cover to the tune of Rs. 1,00,000 had been taken by the respondent No. 1, Kanta Devi. The said amount will have to be paid by the insurance company to the claimants with interest at 7.5 per cent per annum from the date of the petition till the date of realization. 21. In view of the above, the impugned award passed by the Tribunal is set aside in part and the appellant is directed to pay only a sum of Rs. 1,00,000 with interest at the rate of 7.5 per cent from the date of petition till the date of realization to the claimants. The appeal stands allowed in part.