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2018 DIGILAW 1089 (GAU)

National Insurance Co. Ltd. v. Nirada Devi

2018-07-24

MIR ALFAZ ALI

body2018
JUDGMENT & ORDER : Mir Alfaz Ali, J. This appeal is by the Insurance Co. against the judgment ad award dated 8-7-2011 passed by MACT, Lakhimpur in MAC Case No. 25/2009. 2. The brief facts, which may be necessary for disposal of this appeal are that on 12-03-2008, the son of the claimant was travelling in the vehicle bearing registration No. AS-07/B5237(tracker). The offending vehicle was a commercial passenger vehicle. Due to rash and negligent driving of the driver of the vehicle, the son of the claimants fell down from the vehicle and sustained injury. Immediately he was shifted to hospital, where he succumbed to the injuries. The mother of the deceased filed a claim petition praying for compensation and the learned tribunal by the impugned judgment, awarded a compensation of Rs. 3,86,000/- with interest @ 6% per annum from the date of filing of the claim petition. 3. Aggrieved by the judgment and award, the insurance co. preferred the appeal. 4. Mr. R. Goswami, learned counsel for the Insurance Co. and Ms. E. Ahmed, learned counsel for the respondents were heard. 5. Mr. Goswami, learned counsel for the Insurance Co. submitted that the claim petition was filed by the owner/insured of the vehicle against the driver and Insurance Co. for the death of the son of the claimant, who was not a third party, and as such, the claim petition was not maintainable. 6. The learned counsel for the respondents contended that the offending vehicle was a passenger vehicle and the deceased was travelling in the vehicle as passenger, and as such, the insurance co. was liable to pay compensation, as the vehicle was duly insured at the time of accident. Admittedly the offending vehicle No. AS-07/B-5237 was duly insured with the appellant Insurance Co. and on the relevant date, one Aditya Sarma was the insured and owner of the vehicle. The policy was a package policy for passenger carrying commercial vehicle. The claim petition was filed by the mother of the deceased. It is also true that deceased was the son of the owner of the vehicle. 7. Learned counsel for the appellant relying on the decision of the Apex Court in Dhanraj -VS- New India Assurance Co. Ltd. & Anr., (2004) 8 SCC 553 and New India Assurance Co. The claim petition was filed by the mother of the deceased. It is also true that deceased was the son of the owner of the vehicle. 7. Learned counsel for the appellant relying on the decision of the Apex Court in Dhanraj -VS- New India Assurance Co. Ltd. & Anr., (2004) 8 SCC 553 and New India Assurance Co. Ltd. VS- Kendra Devi and Ors., (2007) 14 SCC 299 submits, that the claimant himself was the insured and owner of the vehicle, and as such, even in a comprehensive policy, the liability of the insurer u/s 147 of the MV Act was to indemnify the insured against the liability incurred towards a third party or in respect of damages to property of a third party, and as such, where the insured or the owner of the vehicle has no liability to a third party, the Insurance Co. cannot be saddled with the liability to pay compensation. Further contention of the learned counsel was that the claimant being insured and not a third party cannot maintain a claim before the MACT. 8. Evidently registered owner of the vehicle was Aditya Sarma, father of the deceased. It is no doubt true, that the term 'owner' under the Motor Vehicle Act is not strictly confined to registered owner in all cases. Section 2 (30) of the Motor Vehicle Act, 1988 defines the term "owner" as under :- "(30) "owner" means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase, agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement" 9. A plain reading of the above provision would show that the term "owner of the Motor Vehicle" includes the registered owner and when the registered owner is a minor, the guardian of such minor is considered as the registered owner. A plain reading of the above provision would show that the term "owner of the Motor Vehicle" includes the registered owner and when the registered owner is a minor, the guardian of such minor is considered as the registered owner. When the vehicle remains in actual possession & control of any person, other than the registered owner by virtue of any hire-purchase agreement or hypothecation etc, lease or otherwise and the owner of the vehicle ceased to have control over the vehicle, such person remaining in actual possession and control of the vehicle by virtue of any lease agreement or otherwise are also embraced by the definition of 'owner' of a motor vehicle. 10. When the registered owner of the vehicle was one Aditya Sarma, his son could not be treated as owner of the vehicle as per the definition of the term "owner" u/s 2 (30) of the MV Act, in absence of evidence establishing, that at the time of accident the son became the owner, by way of hiring the vehicle or in any other way ownership of the vehicle vested on him. Evidently the vehicle in question was commercial passenger carrying vehicle. No evidence was brought on record by the insurance co. to show that the deceased was travelling in the vehicle as agent or representative of his father, the registered owner. A person, who is not a registered owner, cannot automatically be termed as 'owner' by a spacious argument, invoking the theory of stepping into the shoes of the owner. Before invoking the theory of stepping into the shoes of the owner, there must be evidence that the deceased was travelling in the vehicle as representative or agent of the owner, or he was anyway entrusted with the charge of the vehicle. Had it been a private vehicle for exclusive use of the owner, matter perhaps could be differently viewed. It should be borne in mind, that no law prohibit a person to travel in a public transport as passenger, when the vehicle is owned by his father or a relative. When admittedly the vehicle was a passenger carrying commercial vehicle, anyone travelling in such public transport except the driver or the employee or representative of the owner in the capacity of conductor, ticket collector, etc., there shall be a presumption that such person was travelling in the public transport as passenger. When admittedly the vehicle was a passenger carrying commercial vehicle, anyone travelling in such public transport except the driver or the employee or representative of the owner in the capacity of conductor, ticket collector, etc., there shall be a presumption that such person was travelling in the public transport as passenger. Obviously such presumption is rebuttable. But the insurance co. did not adduce any evidence to rebut the presumption. 11. In the instant case, evidently the owner of the vehicle was neither the claimant nor the deceased. No evidence was brought on record by the insurance co. to prove that deceased was not travelling in the vehicle as passenger or he was travelling as agent or representative of his father, the owner of the vehicle. In absence of such evidence, the presumption that the deceased was travelling as passenger in the vehicle, which was admittedly a passenger carrying commercial vehicle, stands and as such, the deceased could by no stretch of imagination be held to be insured/owner of the vehicle in the facts and circumstances of the case. 12. In Dhanraj's case, claimant himself was the owner insured of the vehicle, and as such, the factual matrix of both the cases are totally different and distinguishable, therefore the ratio of Dhanraj's case is of no help to the appellant, reason being that admittedly the deceased or the claimant was not the registered owner, nor any evidence was adduced to show that the deceased or the claimant was deemed owner. 13. In Kendra Devi's case, the owner and insured himself was driving the vehicle and the Apex Court held that since the policy covered the risk of paid driver and not the owner-cum-driver, the owner was not entitled to get compensation as per the policy. In the instant case, evidently the owner of the vehicle was Aditya Sarma as apparent from the Ext. A proved by the insurance Co. itself and the deceased was travelling in the vehicle as passenger. When the deceased was travelling in a commercial passenger vehicle as passenger and he was neither the insured/owner of the vehicle, nor any evidence was adduced by the insurer to prove that deceased was travelling in the vehicle as agent or representative of his father to show him as 'deemed' owner, insurance co. cannot avoid the liability to pay the compensation. 14. cannot avoid the liability to pay the compensation. 14. The claim petition was filed by the mother of the deceased, who is undisputedly the legal representative and considered to be dependent of the son, as per ratio laid down by the Apex Court in Sarla Verma & Ors. VS- Delhi Transport Corporation and Ors., (2009) AIR SC 3104. Learned counsel for the insurance co. contended that the owner of the vehicle was not made a party. Since primary liability is of the owner, which is to be indemnified by the insured by virtue of the policy, compensation could not be claimed directly from the insurer and driver without impleading the owner. Apparently the owner was not impleaded as party. However, fact remained is, that admittedly the vehicle was duly insured with the appellant and as such, insurance co. was obliged to satisfy the award under the provision of Section 149 of the M.V. Act. Therefore, there is no reason for the Insurance co. to deny the liability, only for the technical reason, that owner was not made party. 15. In the teeth of the forgoing discussion, I am of the considered view, that there is no merit in this appeal and accordingly dismissed. Insurance co. shall satisfy the award within six weeks by depositing the awarded amount with the tribunal with interest. 16. Send back the LCR.