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2019 DIGILAW 652 (PNJ)

Saroj And Others v. Ashok Kumar And And Another

2019-02-28

AVNEESH JHINGAN

body2019
JUDGMENT Avneesh Jhingan, J. (Oral) - This is an appeal against award dated 13.03.2018 passed by the Motor Accident Claims Tribunal, Fatehabad [for brevity 'the Tribunal'] dismissing the claim petition filed under Section 163A of the Motor Vehicles Act, 1988 [for brevity 'the Act'] relying upon the decision of the Supreme Court in Ningamma and another vs. United India Insurance Co. Ltd., (2009) 13 SCC 710 , holding that the deceased was not a third party. He was driving the motorcycle owned by respondent No.1 who was the pillion rider. 2. Brief facts of the case are that on 07.12.2016, Subhash was riding motorcycle bearing registration No. HR-22M-4893 whereas Ashok, who was the registered owner of the motorcycle was pillion rider. When they reached near village Kumharia, Tehsil and District Fatehabad, a Neel Gayein came in front of the motorcycle. As a result, Subhash lost his control and fell down. He sustained grievous injuries and succumbed to the injuries. DDR No. 29, dated 08.12.2016 was reported. 3. Learned counsel for the appellants contends that the deceased was a third party as the owner was the pillion rider on the motorcycle. 4. The contention raised by learned counsel for the appellants is not well founded. The issue that the borrower of the vehicle cannot claim compensation under Section 163A of the Act, was settled by the Supreme Court in Ningamma's case (supra). 5. Learned counsel for the appellants has not been able to dispute the fact the vehicle was not owned by the deceased. The Supreme Court in Ningamma's case (supra) dealt with the following issue:- "13. In the light of the aforesaid submissions, the question that falls for our consideration is 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 under Section 163A of MVA or under any other provision(s) of law and also whether the insurer who issued the insurance policy would be bound to indemnify the deceased or his legal representatives?" The issue was decided and it was held as under :- "19. We have already extracted Section 163A of the MVA hereinbefore. We have already extracted Section 163A 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 accident 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 163A. 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 MVA. 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 under Section 163A of the MVA." It would be appropriate at this stage to quote Sections 140 and 163A of the Act and GR-36. "140. Liability to pay compensation in certain cases on the principle of no fault - (1) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicles shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section. (2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of fifty thousand rupees and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of twenty - five thousand rupees. (3) In any claim for compensation under subsection (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person. (3) In any claim for compensation under subsection (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person. (4) A claim for compensation under subsection (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement. (5) Notwithstanding anything contained in subsection (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force : Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under section 163 - A. 163 - A. Special provisions as to payment of compensation on structured formula basis - (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle of the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation. - For the purposes of this subsection, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923. (2) In any claim for compensation under subsection (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (2) In any claim for compensation under subsection (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule. GR 36 : Personal Accident (PA) Cover under Motor Policy (not applicable to vehicles covered under Section E, F and G of Tariff for Commercial Vehicles) A. Compulsory Personal Accident Cover for Owner- Driver Compulsory Personal Accident Cover shall be applicable under both Liability Only and Package policies. The owner of insured vehicle holding an 'effective' driving license is termed as Owner Driver for the purposes of this section. Cover is provided to the Owner-Driver whilst driving the vehicle including mounting into/dismounting from or travelling in the insured vehicle as a co-driver. NB : This provision deals with Personal Accident cover and only the registered owner in person is entitled to the compulsory cover where he/she holds an effective driving license. Hence compulsory PA cover cannot be granted where a vehicle is owned by a company, a partnership firm or a similar body corporate or where the owner driver does not hold an effective driving license. In all such cases, where compulsory PA cover cannot be granted, the additional premium for the compulsory P.A. cover for the owner - driver should not be charged and the compulsory P. A. cover provision in the policy should also be deleted. Where the owner-driver owns more than one vehicle, compulsory PA cover can be granted for only one vehicle as opted by him/her. 6. In view of decision of the Supreme Court, the contention raised by learned counsel for appellants deserves rejection. The borrower is not covered under the Personal Accident Cover (PAC). The term 'owner-driver' has been defined under GR-36. It states "Compulsory Personal Accident Cover shall be applicable under both cases i.e. Liability Only and Package policies. The owner of insured vehicle holding an 'effective' driving licence is termed as Owner-Driver for the purposes of PAC. The definition clearly restricts the meaning of 'owner-driver', it only includes owner of the insured vehicle. It states "Compulsory Personal Accident Cover shall be applicable under both cases i.e. Liability Only and Package policies. The owner of insured vehicle holding an 'effective' driving licence is termed as Owner-Driver for the purposes of PAC. The definition clearly restricts the meaning of 'owner-driver', it only includes owner of the insured vehicle. There is a further rider that for claiming compensation for PAC, owner should be holding an 'effective' driving licence. 7. Note in GR-36 states that only the registered owner in person is entitled for Personal Accident Cover if he holds an effective driving licence. The said Cover is not to be granted where the vehicle is owned by a company, a partnership firm or a similar body corporate. This further clarifies that representative of the owner will not fall within the ambit of PAC. 8. The term 'owner-driver' has been defined, hence, no word can be added or deleted from the definition to extend the benefit to claimant so that the term 'owner-driver' can be stretched to mean owner or driver. Hence, the appellants are not entitled to receive any compensation under PAC. However, it would be appropriate to invoke Section 140 of the Act. Under the said provision, the claimants would be entitled to Rs. 50,000/- for 'no fault liability' as provided. 9. The appeal is disposed of in the aforementioned terms. However, the claimants shall be entitled to an amount of Rs. 50,000/- under Section 140 of the Act, to be paid by the Insurer.