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2014 DIGILAW 935 (PNJ)

New India Assurance Co. Ltd. v. Santosh Devi

2014-05-30

JITENDRA CHAUHAN

body2014
Jitendra Chauhan, J. 1. Two cross appeals, noticed above, are being disposed of by this single judgment, having arisen out of the impugned Award dated 06.10.2010, passed by the learned Motor Accident Claims Tribunal, Sirsa (for short, 'the Tribunal'). Briefly stated facts of the case are that on 05.03.2009, Krishan Kumar, since deceased, an agriculturist, after borrowing the motorcycle bearing registration No. HR-24-K-1337, from respondent-owner, Ramesh Kumar, was going from Sirsa to Dhigtania and on reaching the turn of said village, all of a sudden, the motorcycle slipped and the deceased fell down due to which he received multiple injuries. He was removed to Amar Singh Sidhu Nursing Home, Sirsa, from where he was referred to Sarvodaya Hospital, Hisar. He was further referred to Jaipur as his condition deteriorated, however, he succumbed to his injuries on the way. The incident was reported to the police and DDR No. 42 dated 06.03.2009, was recorded at Police Station Agroha, Hisar. The claimants preferred claim petition under Section 163-A of the Motor Vehicles Act (for short, 'the Act'), before the learned Tribunal against the owner, Ramesh. Kumar as well as the insurer, i.e. New India Assurance Company. 2. The learned Tribunal, after appreciating the oral as well as documentary evidence brought on record by the parties, allowed the claim petition and a sum of ` 1,00,000/-, was awarded under the personal accident cover. 3. Feeling aggrieved, the Insurance Company has preferred FAO No. 158 of 2011, praying for dismissal of the claim petition, whereas, the claimants have preferred FAO No. 2807 of 2011, seeking enhancement of the amount of compensation. 4. The learned counsel for the appellant-insurance company contends that the claim petition was filed by the claimants under Section 163-A of the Act, which provides for compensation to the third parties against the owner or insurer of the motor vehicle involved in an accident. It is argued that there is no third party liability incurred by the owner in the present case as the deceased was neither a third part qua the vehicle in question being driven by the deceased himself nor the deceased was insured nor there was any relationship of master and servant between the owner/insured and the deceased. It is argued that there is no third party liability incurred by the owner in the present case as the deceased was neither a third part qua the vehicle in question being driven by the deceased himself nor the deceased was insured nor there was any relationship of master and servant between the owner/insured and the deceased. The learned counsel further refers to General Regulation No. 36 (GR-36) of the Indian Motor Tariff Rules, to contend that the learned Tribunal fell in error while awarded compensation to the claimants under the Personal Accident Cover as the deceased was not the owner-cum-driver of the offending vehicle. The learned counsel cites New India Assurance Co. Ltd. v. Sadanand Mukhi and others, 2009(1) R.C.R. (Civil) 817 : 2009 ACJ 998 (SC), and Ningamma and another v. United India Insurance Company Ltd., 2009(3) R. C.R. (Civil) 435: 2009(4) Recent Apex Judgments (R.A.J.) 164: 2009(4) RAJ 164 (SC). 5. On the other hand, the learned counsel appearing on behalf of the appellant-claimants contends that the insurance police in question was a package police and the company had also charged ` 50/- as extra premium for covering the risk of personal accident of the owner-cum-driver. There is no term in the insurance police excluding the unpaid driver from the insurance cover. It is further argued that the Insurance Company is liable to pay the entire amount of compensation of `3,69,500/-, assessed by the learned Tribunal. 6. I have heard the learned counsel for the parties and perused the record. 7. It is admitted case of the parties that the deceased had borrowed the offending motorcycle from its owner, Ramesh Kumar, which met with an accident resulting into his death. No other vehicle was involved in the accident. The vehicle was insured with the New India Assurance Company, appellant in FAO No. 158 of 2011, under a package/comprehensive policy and an extra premium of ` 50/- was paid by the insured to the insurer towards personal accident cover to the owner-cum-driver. Now, the core issue which arises for determination in the present appeals is that whether in the facts and circumstances of the present case, the claimants are entitled to the grant of compensation and if the answer is in affirmative, then to what extent. 8. Now, the core issue which arises for determination in the present appeals is that whether in the facts and circumstances of the present case, the claimants are entitled to the grant of compensation and if the answer is in affirmative, then to what extent. 8. The main arguments raised by the learned counsel for the Insurance Company are that (i) the deceased, being a borrower of the offending vehicle, cannot be termed as a third party qua the insured or for that matter the insurer; and (ii) the deceased was not covered under the Personal Accident Cover, as he was not the owner-cum-driver of the vehicle. To fortify his averments, the learned counsel has drawn attention of this Court to the law laid down in Sadanand Mukhi's case (supra) wherein, it has been held as under:-- "17. Keeping in view the aforementioned parliamentary object, let us consider the fact of the present case so as to consider as to whether the insurer is liable to pay the amount of compensation in relation to the accident occurred by the use of the vehicle which was being driven by the son of the insured? 19. Learned counsel for the respondents would contend that the object and purport of the Act being to cover the risk to life of any person, the said decision should be applied in this case also. We do not think that it would be a correct reading of the said judgment as therein National Insurance Co. Ltd. v. Laxmi Narain Dhut, 2007(2) R.C.R. (Civil) 345 : 2007 ACT 721 (SC), has been followed. In Laxmi Narain Dhut (supra) a distinction between a statutory police and a contractual police has clearly been made out. These decisions, clearly, are applicable to the fact of the present case." 9. In Ningamma's case (supra), it has been observed as under:-- "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 Ningamma's case (supra), it has been observed as under:-- "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 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 be claimed compensation under Section 163-A of the MVA." The above judicial pronouncements render no help the Insurance Company. In the cited cases, the insurance policy was an Act policy, whereas, in the present case, it is a comprehensive/package policy. If the deceased, being borrower, had stepped into the shoes of the owner and thus, was not a third party qua the owner/insured, this fact also does not come to the rescue of the Insurance Company as in the instant case, the insurance policy is a comprehensive/package policy and an additional premium of ` 50/- was charged by it for providing Personal Accident cover to the owner-cum-driver. If the deceased had stepped into the shoes of the owner, as argued by the learned counsel for the Insurance Company, it was for all intents and purposes as far as the Act is concerned. 10. This High Court, in a case titled as The Oriental Insurance Company Limited v. Monika and others, 2012(1) R. C.R. (Civil) 875 : 2012(1) PLR 605, based on identical facts, held as under:-- "18. 10. This High Court, in a case titled as The Oriental Insurance Company Limited v. Monika and others, 2012(1) R. C.R. (Civil) 875 : 2012(1) PLR 605, based on identical facts, held as under:-- "18. Coming to the other aspect, where the liability is sought to be disowned by the insurance company, the ratio of another decision in National Insurance Company Limited v. Sinitha & Others, 2012(1) R.C.R. (Civil) 205 : 2011 STPL (Web) 1005 SC may be relied upon, wherein Hon'ble Supreme Court has held as under:-- "19. To substantiate his second contention, it would be essential for the petitioner to establish, that Shijo having occupied the shoes of the owner, cannot be treated as the third party. Only factual details brought on record through reliable evidence, can discharge the aforesaid onus. During the course of hearing, despite our queries, learned counsel for the petitioner could not point out the relationship between Shijo and the owner of the motorcycle involved in the accident. Shijo is not shown to be the employee of the owner. He was not even shown as the representative of the owner. In order to establish the relationship between the Shijo and the owner, the petitioner- Insurance Company could have easily produced either the owner himself as a witness, or even the claimants themselves as witnesses. These, or other witnesses, who could have brought out the relationship between the owner and Shijo, were not produced by the petitioner herein, before the Tribunal. The petitioner has, therefore, not discharged the onus which rested oh its shoulders. Since the relationship between the Shijo and the owner has not been established, nor the capacity in which he was riding the vehicle has been brought out, it is not possibly for us to conclude, that Shijo while riding the motorcycle on the fateful day, was an agent, employee or representative of the owner. It was open to the petitioner to defeat the claim for compensation raised by the respondents by establishing that the rider Shijo represented the owner, and as such, was not a third party, in terms of the judgment rendered by this Court in Oriental Insurance Company Limited case (supra). The petitioner failed to discharge the said onus. In view of the above, it is not possible for us to accede to the second contention advanced at the hands of the learned counsel for the petitioner." 19. The petitioner failed to discharge the said onus. In view of the above, it is not possible for us to accede to the second contention advanced at the hands of the learned counsel for the petitioner." 19. There is nothing on record to prove the relationship between Jai Bhagwan and Mohinder Pal Kohli. In the absence of evidence as to the relationship between the two, it cannot be held that Jai Bhagwan was either an agent or representative of the owner or even a borrower of the vehicle. Therefore, the decision in Ningmma and Sadanand Mukhi's cases (supra) would have no application to the facts of this case. Rather the decision in Sinitha's case (supra) would help the claimants in proving that Jai Bhagwan had been a 3rd party and the insurance policy in this case is a package policy and there is no term excluding a driver like Jai Bhagwan from the cover of the insurance, he will be covered by the insurance policy." 11. Feeling aggrieved against the above judgment in Monika's case (supra), the Insurance Company preferred Special Leave to Appeal before the Hon'ble Apex Court, which was dismissed vide order dated 16.07.2014. 12. As far as the GR-36 is concerned, the same is neither part of the insurance policy, nor it was placed before the learned Tribunal. The Act itself being a welfare legislation, where there is any ambiguity, it deserved to be construed in favour of the claimant(s), whereas, in the present set of circumstances, there is no ambiguity noticed by this Court. Thus, from the above discussion, this Court feels that the learned Tribunal has rightly held the claimant entitled the compensation of ` 1,00,000/-, towards personal accident liability qua the owner-cum-driver. There being no scope of enhancement of the awarded amount either, no interference in the impugned award is made out. Consequently, both the appeals are hereby dismissed. The statutory amount deposited by the appellant-Insurance Company be placed at the disposal of the Tribunal for disbursement.