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2020 DIGILAW 226 (GAU)

Oriental Insurance Co. Ltd. v. Pinku Saikia

2020-02-18

KALYAN RAI SURANA

body2020
JUDGMENT Kalyan Rai Surana, J. - Heard Mr. S. Dutta, learned Senior Counsel, assisted by Ms. M. Borchetia, learned counsel for the appellant. None appears on call for the respondents although the names of the learned counsel are reflected in the cause list. 2. It may be mentioned herein that the respondents were unrepresented when the matter was last listed on 29.07.2019, 19.09.2019 and 14.02.2020. 3. This appeal under Section 173 of the Motor Vehicles Act, 1973 is directed against the order and award dated 16.10.2012 passed by the learned Member, MACT, Golaghat in MAC Case No. 22/2004. 4. In the claim petition, it was projected that on 21.11.2003 at about 12.15 AM, the respondent No.1, namely, Sri Pinku Saikia (the claimant) was returning home by riding a motorcycle bearing registration No. AS-01/Q- 1409 owned by his sister, namely, Ms. Bobi Saikia. At a sharp turning near the Chandrama Cinema Hall, Bokakhat, his motorcycle met with an accident and as a result, he fell down towards his left hand side and sustained severe injuries on head and other parts of the body. The injuries are as follows: wxyz 1. Linear fracture with depressed component involving left parieto-temporal bones. zyxw wxyz 2. Heamotoma with aerocele in right frontal rigion of left tempro-parietal. zyxw wxyz 3. Contusions over left temporal and parietal and right frontal rigion. zyxw wxyz 4. Injuries over left leg. zyxw wxyz 5. Internal injuries over left ear. zyxw 5. He was immediately taken to Bokaghat CHC and on the same date, he was referred to Guwahati where he was treated in a private hospital for 34 days as indoor patient. It is projected that the respondent No. 1 developed restlessness, started to make irrelevant talk, loss ability to recognize people and developed confusion and till the time of filing of the claim petition, he was still under medical treatment and unable to perform his own personal work and business activities and is living as a disabled person and dependent on the family. It is projected that the respondent No. 1 had to closed down his tyre business and agriculture and his marriage prospects has become bleak and that the petition was filed through his mother as next friend and natural guardian. 6. It is projected that the respondent No. 1 had to closed down his tyre business and agriculture and his marriage prospects has become bleak and that the petition was filed through his mother as next friend and natural guardian. 6. The appellant had contested the claim by filing written statement as well as additional written statement denying liability and by taking a plea that the DTO, Mon had issued a certificate to the effect that no driving licence bearing No. 1049/MON/1991 dated 26.04.1991 was issued in the name of respondent No.1 and the said licence was stated to be fake. 7. In support of the claim, the respondent No.1 had examined himself as PW-1 and he was examined only on the point that he was driving the scooter and it was hit against the bolder lying on the road. It may be relevant to mention herein that the appellant had filed its written statement on 06.12.2004. The respondent No. 1 as PW-1 had filed his evidence on affidavit on 05.02.2005 and on the same date, he was cross-examined and discharged. Thereafter, the additional written statement along with a petition under Section 170 of the Motor Vehicles Act was filed by the appellant on 29.11.2005, but on the said date, the learned Presiding Officer of MACT was on leave and the case was fixed on 03.12.2005 for necessary orders and on the said date, the case was fixed for evidence of the appellant and argument. Therefore, there is no order by the learned Tribunal of accepting the additional written statement filed by the appellant. 8. The respondent No.1 herein had examined himself as PW-1. The appellant side examined two witnesses, both branch managers. 9. The claimant side had exhibited the following documents, viz., Accident Report (Ext.1), Extract copy of G.D.E. No. 539 dated 21.11.2003 (Ext.2), Case Summary & Discharge Record dated 26.12.2003 (Ext.3), Medical Certificate dt. 04.09.2004 and Bills & Cash Memos (Ext.5). The appellant herein had exhibited the following documents, viz., Certified copy of Insurance Policy (Ext.A), Signature of the Branch Manager [Ext.A(i)], Driving Clause [Ext.A(ii)], Investigation report (Ext. B), Certificate issued by the D.T.O., Mon (Ext.C), Certified copy of MACT Case No. 57/03 (Ext.D) and Clause 3 of an affidavit filed by the claimant in MACT Case No. 57/2003 [Ext.D(i)]. 10. The appellant herein had exhibited the following documents, viz., Certified copy of Insurance Policy (Ext.A), Signature of the Branch Manager [Ext.A(i)], Driving Clause [Ext.A(ii)], Investigation report (Ext. B), Certificate issued by the D.T.O., Mon (Ext.C), Certified copy of MACT Case No. 57/03 (Ext.D) and Clause 3 of an affidavit filed by the claimant in MACT Case No. 57/2003 [Ext.D(i)]. 10. The learned Tribunal had framed three issues for trial: wxyz (1) Whether any accident occurred due to use of vehicle No. AS-01/Q-1409 (Motorcycle)? zyxw wxyz (2) Whether the claimant is entitled to get any compensation? If so what extent and from whom? zyxw wxyz (3) What other relief/ reliefs, the claimant is entitled to get. zyxw 11. In support of issue No. 1, based on the accident report (Ext.1) and G.D. Entry (Ext.2), it was held that the respondent No. 1 had sustained injury while riding on the motorcycle on 21.11.2003 at 12.15 AM. In support of issues No. 2 and 3, the learned Tribunal did not assign any reason for discarding Ext. A, B and C and held that the respondent No. 1 had a valid driving licence and by holding that the motorcycle was insured with the appellant in respect of third party risk, the appellant was liable to pay compensation and accordingly, a total award of Rs.1,50,000/- with 6% interest from the date of filing of the claim petition was awarded out of which the medical expenses was Rs.1,40,000/- and Rs.10,000/- was awarded against pain and suffering. 12. Assailing the order and award impugned herein, the learned Senior Counsel for the appellant has submitted that the respondent No.1 was not the owner of the vehicle and the vehicle was owned by his sister. Under such circumstances, it is submitted that the respondent No. 1 does not become the owner to be covered by the insurance policy and it is submitted that as the insurance was a package policy for motorcycle, it only covers the owner-driver and not the risk of any third party driving the vehicle. In this regard, the learned Senior Counsel for the appellant has referred to the provisions of Section 147 of the Motor Vehicles Act to contend that statutory liability would only be in respect of the insured only and not that of any other person who is driving the vehicle involved in the accident. In this regard, the learned Senior Counsel for the appellant has referred to the provisions of Section 147 of the Motor Vehicles Act to contend that statutory liability would only be in respect of the insured only and not that of any other person who is driving the vehicle involved in the accident. In order to supplement his submissions, the learned Senior Counsel for the appellant has referred to the case of Ningamma Vs. United India Insurance Co. Ltd., (2009) 13 SCC 710 , New India Assurance Co. Ltd. Vs. Prabha Devi, (2013) AIRSCW 3779: 2013 ACJ 1382 , New India Assurance Co. Ltd. Vs. Sadanand Mukhi & Ors., (2009) AIR SC 1788: 2009 ACJ 998 , and National Insurance Co. Ltd. Vs. Shyam Rai Mahanta & Ors., (2018) 1 GauLT 132 . 13. As indicated above, the plea that the respondent No.1 was holding a fake licence, the cognizance of the same is not taken by this Court because of the fact that the additional written statement of the appellant by which this fact was sought to be brought on record, had not formally been accepted by the learned Tribunal and moreover, as the evidence of PW1 was already over prior to introduction of the said fact, the respondent No. 1 did not have any opportunity of meeting the said point. Accordingly, the evidence of DW-1 and DW-2 insofar as Ext. A, B and C is concerned, this Court is not inclined to take cognizance of the same as the additional written statement of the appellant had not been accepted by the learned Tribunal, as such, any evidence that was led beyond pleadings cannot be accepted. 14. The other issues raised by the learned Senior Counsel for the appellant is found to have force that the respondent No. 1 was not the owner of the motorcycle bearing registration No. AS-01/Q-1409. In this regard the cases of Prabha Devi (supra), Ningamma (supra) and Sadanand Mukhi (supra) have settled the issue that the insurance contract between the appellant and the owner of the vehicle did not cover the risk in respect of any other person who is driving the motorcycle. In this regard the cases of Prabha Devi (supra), Ningamma (supra) and Sadanand Mukhi (supra) have settled the issue that the insurance contract between the appellant and the owner of the vehicle did not cover the risk in respect of any other person who is driving the motorcycle. It would be relevant to mention herein that the case of Sadanand Mukhi (supra) is a case where the son had borrowed the motorcycle of the father and in that context, it was held that the contractual liability did not extend to indemnify the claim resulting in respect of the son. Relying on various case citations, this Court in the case of Shyam Rai Mahanta (supra), had held that the package policy of the motorcycle did not cover the risk of a third party driving the said motorcycle and it was held in the said case that the deceased who was driving the motorcycle at the relevant time had stepped into the shoes of the legal representatives of the deceased, one of whom is a owner of the vehicle, could not have claimed compensation. 15. In view of the discussion above, and in view of the provisions of Section 147 of the Motor Vehicles Act, this Court is inclined to hold that the package policy insurance which was for the motorcycle did not cover the risk arising out the claim of any person other than the owner, driving the said motorcycle, as such, the person driving the motorcycle and who is not the owner would not be covered by the meaning of "third party" in respect of the claim made under Section 166 of the Motor Vehicles Act. 16. As the respondent No.1 cannot be held to be a "third party" in respect of the insured vehicle, this is a fit case where the order and award passed by the learned Tribunal is not sustainable and the same is liable to be interfered with. Accordingly, by holding that the finding recorded by the learned Tribunal on issues No. 2 and 3 are not sustainable in light of ratio laid down in the case of Ningamma (supra), Sadanand Mukhi (supra) and Shyam Rai Mahanta (supra). Resultantly, this appeal stands allowed and the order and award dated 16.10.2012 passed by the learned Member, MACT, Golaghat in MAC Case No. 22/2004 is set aside. 17. Parties are left to bear their own cost. 18. Resultantly, this appeal stands allowed and the order and award dated 16.10.2012 passed by the learned Member, MACT, Golaghat in MAC Case No. 22/2004 is set aside. 17. Parties are left to bear their own cost. 18. Let the LCR be returned back. 19. The Registry shall refund the statutory deposit to the appellant.