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2016 DIGILAW 135 (GAU)

Oriental Insurance Co. Ltd. v. Anjana Sharma

2016-02-25

RUMI KUMARI PHUKAN

body2016
JUDGMENT AND ORDER : Rumi Kumari Phukan, J. Heard Mr. A. Ahmed, learned counsel for the appellant and also Mr. B. Sarma, learned counsel for the respondent. 2. This appeal is directed against the judgment and order dated 19.11.2009 passed by the Motor Accident Claims Tribunal (FTC), Sonitpur at Tezpur in MAC Case No. 305/2006. By the impugned award, the learned Tribunal has awarded the compensation of Rs. 11,32,000/- to the claimant on the basis of the petition so preferred by the respondents under Section 166 of the MV Act. 3. As stated in the claim petition, the fact of the case is that on 30.4.2006 deceased while returning from his duty on a motor cycle bearing No. AS-C-8804 met with an accident due to the sudden appearance of the dog infront of him, he sustained injuries on his person wife of the deceased preferred claim as above. The vehicle in question was belong to one Rajib Das (respondent No. 2) and the said vehicle was duly insured with the Oriental Insurance Co. Ltd. In the proceeding before the Tribunal, the said respondent/owner of the vehicle filed his written statement (as OP No. 1) by taking as usual plea that the claimant has to proof the case in conformity with the provisions of MV Act and as the vehicle was duly insured at the relevant period with the Oriental Insurance Co. Ltd. So he has no any liability to pay compensation. 4. The appellant as O.P. No. 2 also resisted the claim of the claimant that they are not liable to pay any compensation as the death of said Dhaneswar Bora was not the result of any other vehicle. That apart all other usual pleas were taken by the Insurance Company. The learned Tribunal, however, awarded the claim of the respondent No. 1 in her favour as has been mentioned above. 5. The present appeal has been preferred by Insurance Company basically challenging the points as discussed below: (i) It has been urged that the learned Tribunal has failed to appreciate the fact that the deceased himself (for own fault) caused the accident and no other vehicle was involved in the incident causing injury resulting death of the injured person. 5. The present appeal has been preferred by Insurance Company basically challenging the points as discussed below: (i) It has been urged that the learned Tribunal has failed to appreciate the fact that the deceased himself (for own fault) caused the accident and no other vehicle was involved in the incident causing injury resulting death of the injured person. (ii) The fact that for entertaining a claim petition under Section 166 MV Act, rash and negligent driving by the driver of the offending vehicle is sine-qua-non which is not present in the case and the said aspect is not considered by the learned Tribunal. (iii) The deceased himself drive the vehicle borrowed from owner at the relevant time and he is not the third party and as such the adjudication of the claim by the Tribunal and awarding the compensation to the claimant is not sustainable. (iv) The Tribunal has also committed grave illegality in not considering the fact that the policy did not cover the liability of the nature for which the additional premium has not been paid by the insured. 6. From the pleadings as well as evidence on record before the Tribunal, it is an admitted position that deceased Someswar Sarma, (who was a neighbour of the owner Rajib Das), drove the vehicle on the fateful day and while returning from duty he met the accident. In that view of the matter deceased Someswar was borrower of the vehicle. Having regard to the ground of appeal and the pleadings between the parties the relevant question before this Court as to whether borrower of a vehicle can claim compensation from the owner/insurer of the vehicle? This aspect of the matter dealt with by the Hon'ble Supreme Court in New India Assurance Company Ltd. v. Sadanand Mukhi & Ors. reported in (2009) 2 SCC 417 , Oriental insurance Co. Ltd. v. Smt. Rajni Devi & Ors. reported in (2008) 5 SCC 736 and Nin Gamma & Ors. v. United India Insurance Co. Ltd. reported in (2009) 13 SCC 710 . It has been held that borrower of a vehicle steps into the shoes of the owner and therefore he/his legal heirs are not entitled to claim compensation from the owner/insurer of the vehicle under Section 163 A of the Act. v. United India Insurance Co. Ltd. reported in (2009) 13 SCC 710 . It has been held that borrower of a vehicle steps into the shoes of the owner and therefore he/his legal heirs are not entitled to claim compensation from the owner/insurer of the vehicle under Section 163 A of the Act. In Nin Gamma (supra) it was held as follows: "In a case where third party is involved the liability of the Insurance Company would unlimited. It is also held that the said decision where, however, compensation was claimed for the death of the owner or another passenger of the vehicle, the contract of the insurance being governed by the contract - qua-contract, the claim of the claimant against the insurance company would depend upon the terms thereof." 7. In the case of Rajni Devi (supra), it has been held that the Section 163 A of the MV act cannot be said to have any application in respect of an accident where the owner of the vehicle himself involved. The decision further held that the question is no longer res-integra. The liability under Section 163 A of the MV Act is on the owner of the vehicle so a person cannot be both, a claimant as also a recipient with respect to the claim. Therefore, the heirs of the deceased would not have maintained a claim under Section 163A of MV Act. 8. In the present case, the deceased was not the owner of the motor bike in question. He borrowed the said motor bike from its real owner and he cannot held to be an employee of the owner of the motor bike, but he was authorised to drive the vehicle by its owner and therefore, he would step into the shoes of the owner of the motor bike. In view of the ratio of the decision discussed above, as deceased had step into the shoes of the owner of the motor vehicle claim for compensation against the owner of the vehicle would not arise. In 2002(1) TAC (Gau), it has been held that while the owner of vehicle met an accident and the contention that policy covered only third party risk, no compensation could have been awarded. In 2002(1) TAC (Gau), it has been held that while the owner of vehicle met an accident and the contention that policy covered only third party risk, no compensation could have been awarded. Owner incurred no liability in respect of death or bodily injury to any person, to be indemnified by the Insurance Company as per provision of 147 of the MV Act. 9. The above observation has been endorsed by subsequent case laws reported in (2007) 9 SCC 263 (Oriental Company Ltd. v. Jhuma Saha). In another decision rendered by Hon'ble Supreme Court in Civil Appeal No. 7402/08 (New India Assurance v. Sadanand Mukhi and Others), it has been held that "for the reason stated in the claim petition or other wise he himself was to be blamed for the accident. The accident did not involve any other motor vehicle, other than the one which he was driving and it was held that since deceased being the negligent, the claim petition under Section 166 of MV Act is not maintainable and the Insurance Company is not liable to pay compensation. 10. Further, in the instant case, admittedly, the accident took place while the motor bike was driven by the deceased met with an accident while a dog suddenly appeared in front of the motor cycle and the deceased hit against a tree nearby. This also reveals that there was no proper control of the vehicle driven by the deceased. In the circumstances, it can be held that the accident took place because of default/neglect of the victim himself and there is no any collusion with any other vehicle. In National Insurance Co. Ltd. v. Simitha & Ors., reported in 2011 (13) SCALE 84 , it has been held that no person can take advantage of his own wrong. 11. The next crucial challenged made by the appellant as to whether the deceased was a third party at the relevant time of accident needs consideration. The learned counsel for the appellant relying upon the decision of the Hon'ble High Court of Madras in New India Assurance v. Kaliathal & Ors. reported in 2002 (2) TAC 663 (Mad), it has been submitted that the Insurance Company is made liable to pay compensation as the policy cover only the third party risk and not the risk of the life of the insure. reported in 2002 (2) TAC 663 (Mad), it has been submitted that the Insurance Company is made liable to pay compensation as the policy cover only the third party risk and not the risk of the life of the insure. Referring the decision of the Hon'ble Supreme Court in 2007 (2) TAC 417 (SC) (Oriental insurance Co. Ltd. v. Meena Variyal & Ors.), it has been argued by the learned counsel for the appellant that in a case where a person is not a third party within the meaning of the Act, insurer cannot be make automatically liable to made compensation. The aforesaid case, it was held where the owner of a tractor while walk on the road, his tractor driven by his servant hit him and died and in such backdrop the owner of the vehicle should not be construed as a third party and insurer is not liable to make compensation. Further discussing about the liability of the insurance company, it has been held in paragraph-11 of the judgment-the object of the insistence on insurance under Chapter 9 of the Act thus seems to be compulsorily cover the liability relating to their person or properties of third parties and in respect of the employees of the insured employer the liability that may arise under the Workmen Compensation Act, 1923 in respect of driver, conductor and the one carried in a goods vehicle. On this plain understanding of Section 147, we find it difficult to hold that the Insurance Company in the case in hand was liable to indemnify the owner, the employer. 12. The next decision relied by the learned counsel for the appellant is 2006 (3) GLT 379 (New India Assurance v. T. Toshi Jamir) while answering to the question whether insurer can be made liable to pay compensation for the injuries sustained by the owner of the vehicle, particularly when the owner himself driven the vehicle it was been answered that this question can no longer said to be in doubt or uncertain for its no longer res-integra that the liability of the insurer is only to indemnify the insured against the liabilities, which the insured may incur towards a third person or in respect of damage to the property. It is therefore when the owner of the vehicle himself sustained injury, he cannot be said to have became liable to pay compensation to any one and since the owner in such case incurs no liability, the insurer can also not be fastened with any liability. 13. In the case of New India Assurance Limited v. Phelisha Bakai, reported in ACJ 2007-0-2388, this Court by referring the decision of catena of cases on the point of expression "third party'', it has been held as below:- "In short, the expression 'third party' does not include in its sweep anybody or everybody involved in an accident wherein the vehicle is involved. At any rate the expression "third party" does not include the passengers inside the vehicle. The word "any person" has been referred to really mean a third party and does not refer to a passengers or a occupant of the vehicle. 14. In New India Assurance Company v. Asha Rani and Others, (2003) 2 SCC 223 , Oriental Insurance v. Meena Variyal and Others, (2007) 2 TAC 417 SC also endorsed the same view that any person occurring in section 147 of the Act is to be understood as a third party. Further it is discussed that Section 143 of the Act imposed an obligation on the owner to ensure against the risk or injury and death of third party resulting from the use of vehicle on road. The third party risk in Section 143(1) did not include the risk to the driver of the vehicle at the relevant time. So, any person in Section 145(3)(A) was therefore restricted to person other than the driver of the vehicle and its owner and that accordingly, since the liability of the owner to the plaintiff was not one that was required to be covered by a policy of insurance, the Insurance Company is not liable to satisfy the judgment of award. 15. In the instant case as discussed above, deceased is found to be stepped into the shoes of owner and died because of his own negligent driving. As per the proposition laid down by the Hon'ble Apex Court as discussed above, the Claim Petition is not maintainable and the Insurer is not liable to pay the compensation. 16. Appeal is accordingly allowed. Return the LCRs to the court below forthwith. 17. As per the proposition laid down by the Hon'ble Apex Court as discussed above, the Claim Petition is not maintainable and the Insurer is not liable to pay the compensation. 16. Appeal is accordingly allowed. Return the LCRs to the court below forthwith. 17. The appellant is allowed to withdraw the statutory deposit, if any deposited while filing the appeal.