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2014 DIGILAW 133 (CAL)

National Insurance Co. Ltd. v. Nur Banu

2014-02-20

J.K.BISWAS, SAHIDULLAH MUNSHI

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JUDGMENT : Jayanta Kumar Biswas, J. The Insurance Company is the appellant. It is aggrieved by an award of the Motor Accident Claims Tribunal, Jalpaiguri dated 30th October, 2003 ordering it to pay the claimants Rs. 1.6 lakh compensation u/s 163A of the Motor Vehicles Act, 1988. The claimants, the wife, a son, two daughters and the mother of one Abu Bakkar Siddiki aka Abu Bakkar, filed the application on August 29, 2001. Their case was this: Abu Bakkar (32) was a businessman earning Rs. 3,000 per month. On 3rd August, 2001 he was riding a motorcycle No. WB-72A-4732 owned by one Abu Kalam Azad. While riding the motorcycle he dashed an unknown truck. He sustained injuries that caused his death. The accident happened due to his rash and negligent driving of the motorcycle. The motorcycle was covered by a valid policy issued by the Insurance Company. Hence, the accidental death made it and the owner of the motorcycle liable to pay them compensation. 2. The Insurance Company contested the claim by filing a written statement. It claimed statutory protections available under Sections 147 and 149 of the Motor Vehicles Act, 1988. It contended that the victim himself being responsible for the accident, the claimants were not entitled to any compensation. 3. In proof of their case the claimants examined the first claimant Nur Banu (the victim's wife) as PW1, one Nilmani Das, an eyewitness to the accident, as PW2 and the fifth claimant Fatema Khatun (the victim's mother) as PW3. The Insurance Company examined an employee of its as OPW 1. 4. The claimants produced a copy of FIR (Ex.1), a copy of insurance policy (Ex. 2), a copy of the victim's driving licence (Ex. 3), a panchayat certificate (Ex. 4), a letter of the motorcycle owner dated 26th July, 2001 (Ex. 5), a copy of the post-mortem report (Ex. 6), and a copy of the victim's elector's card (Ex. 7). The certificate of insurance produced by OPW1 was marked Ex. A. 5. PW1 testified about the victim's seasonal business activities, monthly income and death. Her testimony is that she was the victim's divorced wife. PW3 testified that she was in joint mess with the victim, and that her grand children were being looked after by PW1. 7). The certificate of insurance produced by OPW1 was marked Ex. A. 5. PW1 testified about the victim's seasonal business activities, monthly income and death. Her testimony is that she was the victim's divorced wife. PW3 testified that she was in joint mess with the victim, and that her grand children were being looked after by PW1. PW2 testified that a truck dashed the motorcycle, that the victim was killed in the accident, and that he was unable to say for whose fault the accident happened. OPW1 proved the certificate of insurance (Ex.A). 6. The Claims Tribunal held as follows. Though the accident happened for the victim's own negligence, the claim was maintainable; for it was a no fault liability claim u/s 163A and the victim was killed in the accident arising out of the use of the motorcycle insured by the Insurance Company. Evidence did not prove the victim's income. Hence, Rs. 15,000 notional income provision would apply to the case. Evidence proved that the victim was 35-odd. Hence, multiplier of 16 would apply. One-third of the annual income should be deducted. 7. Relying on Ningamma and Another Vs. United India Insurance Co. Ltd., (2009) 13 SCC 710 Mr. Singh appearing for the Insurance Company has submitted as follows. The victim riding the motorcycle stepped into the shoes of the owner thereof and was killed in the accident for which he himself was responsible. Ext. A proved that the owner of the motorcycle did not take personal accident coverage. Hence the victim's death in the accident arising out of the use of the motorcycle did not create any liability of the Insurance Company to pay any compensation. 8. Mr. Rahaman appearing for the claimants has submitted as follows. Though it was stated in the claim application that the victim himself was responsible for the accident in which he was killed, the death created liability of the Insurance Company to pay the claimants compensation in the discharge of its obligation to indemnify the insured; for it was a claim u/s 163A, in which the claimants were not required to address the question of fault leading to the accident and the victim's consequent death. 9. In Ningamma, one Ramappa borrowed a motorcycle from one Paranagouda, the owner of the motorcycle. While riding the motorcycle Ramappa dashed an iron sheet loaded bullock cart that, while proceeding ahead of the motorcycle, suddenly stopped. 9. In Ningamma, one Ramappa borrowed a motorcycle from one Paranagouda, the owner of the motorcycle. While riding the motorcycle Ramappa dashed an iron sheet loaded bullock cart that, while proceeding ahead of the motorcycle, suddenly stopped. Ramappa sustaining fatal injuries in the accident died in hospital. His wife and minor son filed the application claiming compensation u/s 163A of the Motor Vehicles Act, 1988. 10. The question that arose for consideration before the Supreme Court was: "13....whether the legal representatives of a person, who was driving a motor vehicle, after borrowing it from the real owner meets with an accident without involving any other vehicle, would be entitled to compensation u/s 163A of M.V. Act or under any other provisions of law and also whether the insurer who issued the insurance policy would be bound to indemnify the deceased or his legal representative..." The Supreme Court considered a previous decision in Oriental Insurance Co. Ltd. Vs. Rajni Devi and Others, (2008) 5 SCC 736 and said: "18...It was held in the said decision that Section 163A of the M.V. Act 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 u/s 163A of the M.V. Act 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 163A of the M.V. Act. In our considered opinion, the ratio of the aforesaid decision is clearly applicable to the facts of the present case..." In Ningamma, the Supreme Court found that Ramappa borrowing the motorcycle from Paranagouda, the real owner thereof, could not be treated as an employee of Paranagouda, although he (Ramappa) had been authorised by Paranagouda to drive the motorcycle; and that Ramappa, in reality, had stepped into the shoes of Paranagouda, the owner of the motorcycle. The Supreme Court held as follows: "19....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. The Supreme Court held as follows: "19....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 163A of the M.V. 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 163A of the M.V. Act." 11. In this case, Ext. A, the certificate of insurance issued by the Insurance Company and in force at the date of the accident in relation to the use of the motorcycle, clearly proved that the owner of the motorcycle did not pay any premium for covering any liability for his personal accident in the course of the use of the vehicle. 12. The argument that premium paid for all damage was actually for covering the owner's personal accident is misconceived. It was for damage to the motorcycle. Damage could not be suffered by the owner, a living person; it could be suffered, if at all, only by the motorcycle, a non-living thing. 13. PW2, an eyewitness to the accident, testified that he was unable to say for whose fault the accident happened. The claimants' case in the application for compensation was that the victim himself was wholly responsible for the accident in which he was killed. 14. Ext. 4 is stated to be the letter whereby the owner of the motorcycle authorised the victim to use the motorcycle. Its author was not examined. It is a doubtful document. But that does not make any difference; for at the time of the accident the victim, solely responsible for the accident, was in the shoes of the owner of the motorcycle. The Ningamma principles are fully applicable to the case. For these reasons/we allow the appeal, set aside the award of the Claims Tribunal and dismiss the application for compensation. The Registrar General is directed to pay the Insurance Company the whole of the deposit with accrued interest within four weeks from the date the records are sent to the department. No costs. Certified Xerox.