Research › Search › Judgment

Gauhati High Court · body

2020 DIGILAW 593 (GAU)

New India Assurance Co. Ltd. v. P. C. Lalfakawmi

2020-06-25

MICHAEL ZOTHANKHUMA

body2020
JUDGMENT Michael Zothankhuma, J. - Heard Mr. Lalfakawma, the learned counsel for the appellant as well as Mr. Johny L. Tochhawng, the learned counsel for the respondents/ claimant Nos. 1 to 4. 2. This is an appeal filed by the Insurance Company against the Judgment and Award dated 14.12.2018, passed by the Motor Accident Claims Tribunal, Aizawl in MACT Case No. 61/2017, whereby the compensation amount of Rs. 5,00,000/- and interest @ 7% p.a has been awarded to the claimants, due to the death of Shri Aminadala Akima in a motorcycle accident. 3. The facts of the case is that the husband of the claimant No. 1 and the father of the claimant Nos. 2 to 4 died in a motorbike accident on 14.01.2017 at Bilkhawthlir. The motorcycle bearing MZ 01-H/1707, which was owned by C. Lalrinmawia of Durtlang Leitan was driven/ fell off a cliff. The deceased had borrowed the motorcycle from the owner. The claimants thereafter filed a claim petition under Section 163-A of the Motor Vehicles Act, 1988. The owner of the vehicle contested the case by filing a written statement stating that he had sold the bike in the year 2015 to one Zarzokima of Bilkhawthlir and accordingly, he had no liability. 4. The present appellant (insurance company) also filed its written statement praying that the claim should be dismissed as it had no liability in the said case. 5. The learned Trial Court framed the following issues:- wxyz i) Whether the present claim application is maintainable in its present form and style? zyxw wxyz ii) Whether the claimant is entitled to compensation, and if so, to what extent and who is liable to pay? zyxw 6. The claimant was examined by the learned MACT and thereafter, the impugned Judgment and Award dated 14.12.2018 was passed, whereby the learned Tribunal awarded compensation of Rs. 500,000/-, payable by the appellant alongwith interest @ 7% per annum from the date of filing the claim petition i.e. 11.10.2017 till final payment. The compensation amount of Rs. 500,000/- had been awarded in terms of Notification dated 22.05.2018, issued by the Ministry of Road Transport and Highways, vide Memo No. S.O. 2022(E), which states that the compensation amount payable in case of death under section 163-A of the MV Act, 1988 shall be rupees five lakhs. 7. The compensation amount of Rs. 500,000/- had been awarded in terms of Notification dated 22.05.2018, issued by the Ministry of Road Transport and Highways, vide Memo No. S.O. 2022(E), which states that the compensation amount payable in case of death under section 163-A of the MV Act, 1988 shall be rupees five lakhs. 7. Being aggrieved by the impugned Judgment and Award, the appellant insurance company has filed the present appeal. 8. The learned counsel for the appellant submits that the impugned Judgment and Award should be set aside as the learned Tribunal failed to fully appreciate the evidence and the fact that the motorcycle owner was not the employer of the deceased and that the owner of the motorcycle was a third party. 9. The second ground of challenge made by the appellant to the impugned Judgment and Award was that the learned Tribunal had awarded compensation on the basis of the Notification dated 22.05.2018, issued by the Ministry of Road Transport and Highways, vide Memo No. S.O.2022(E), whereas the deceased had met with an accident on 14.01.2017, i.e. prior to the publication of the Notification dated 22.05.2018. He accordingly submits that compensation could not have been awarded on the basis of the Notification dated 22.05.2018 and the same could have been done on the basis of the 2nd Schedule of the MV Act, 1988. 10. The learned counsel for the respondent Nos. 1 to 4, on the other hand, submits that there is no infirmity with the impugned Judgment and Award passed by the learned Tribunal, inasmuch as, it is an admitted fact that the deceased had borrowed the motorcycle from the owner and died due to his injuries when he ran over the cliff. He submits that as per Section 163-A of the MV Act, 1988, there is no requirement of any negligence being proved and that in terms of the Notification dated 22.05.2018, the compensation awarded to the claimant was just compensation. 11. I have heard the learned counsels for the parties. 12. He submits that as per Section 163-A of the MV Act, 1988, there is no requirement of any negligence being proved and that in terms of the Notification dated 22.05.2018, the compensation awarded to the claimant was just compensation. 11. I have heard the learned counsels for the parties. 12. On perusing the grounds of appeal made by the appellant, this Court finds that the appellant has not raised the specific issue of whether the deceased had stepped into the shoes of owner of the motorbike and whether a person who steps into the shoes of the owner of accident vehicle could make a claim under Section 163-A of the Motor Vehicles Act, 1988. The learned Tribunal has however framed general issues which would include within its fold the above specific issue. 13. In the present case, it is admitted by the counsel for the respondent Nos. 1 to 4/ claimants that the deceased had used the motorcycle with the permission of the motorcycle owner. The Apex Court in the case of Ningamma and Another Vs. United India Insurance Company Limited, (2009) 13 SCC 710 , has held at paragraph 21 that a person who borrows a motorbike from its real owner, cannot be held to be employer of the motorbike, although he was authorized to drive the vehicle by its owner and therefore, he would step into the shoes of the owner of the motorbike. 14. The Apex Court in paragraphs 20, 21 and 33 of Ningamma and Another Vs. United India Insurance Company Limited (Supra) has stated as follows:- wxyz "20. It was held in Oriental Insurance Co. Ltd. case that Section 163-A of the MVA cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved. The decision further held that the question is no longer res integra. The liability under Section 163-A of the MVA is on the owner of the vehicle. So a person cannot be both, a claimant as also a recipient, with respect to claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163-A of the MVA. zyxw wxyz 21. In our considered opinion, the ratio of the decision in Oriental Insurance Co. Ltd. case is clearly applicable to the facts of the present case. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163-A of the MVA. zyxw wxyz 21. In our considered opinion, the ratio of the decision in Oriental Insurance Co. Ltd. case is clearly applicable to the facts of the present case. In the present case, the deceased was not the owner of the motorbike in question. He borrowed the said motorbike from its real owner. The deceased cannot be held to be an employee of the owner of the motorbike although he was authorised to drive the said vehicle by its owner and, therefore, he would step into the shoes of the owner of the motorbike. 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. zyxw wxyz 33. There are indeed cases like New India Assurance Co. Ltd. V. Sadanand Mukhi wherein the son of the owner was driving the vehicle, who died in the accident, was not regarded as third party. In the said case, the Court held that neither Section 163-A nor Section 166 would be applicable." zyxw wxyz A perusal of the above clearly shows that if the deceased rider had borrowed the motorcycle from its real owner, the deceased would step into the shoes of the owner of the motorbike and no claim could be made by the claimant under section 163-A of the MV Act, 1988, as the deceased could not be said to be a third party. zyxw 15. To a query raised by this Court to the counsel for the respondent Nos. 1 to 4 (claimant), as to whether the case of Ningamma and Another (Supra) would be applicable to the facts of this case, the counsel for the respondent Nos. 1 to 4 submits that as the Insurance Company has not brought out the relationship between the owner of the motorcycle and the deceased, the Insurance Company could not be discharged from the onus of establishing that the deceased represented the owner of the motorcycle and as such was not a third party. 1 to 4 submits that as the Insurance Company has not brought out the relationship between the owner of the motorcycle and the deceased, the Insurance Company could not be discharged from the onus of establishing that the deceased represented the owner of the motorcycle and as such was not a third party. He thus submits that the decision of the Apex Court in Ningamma and Another (Supra) would not be applicable to the facts of this case and in support of the same, he has relied upon the Judgment of the Apex Court in the case of National Insurance Company Limited Vs. Sinitha and Others, (2012) 2 SCC 356 . 16. In the case of National Insurance Company Limited Vs. Sinitha and Others (Supra), the question to be decided was whether a claim for compensation made under Section 163-A of the MV Act, 1988, could be defeated, either by the owner or the insurance company, by pleading and establishing that the accident in question was based on the contributory negligence of the offending vehicle. In the above case, one Shijo, who was riding a motorcycle alongwith a pillion rider hit a stone lying on the road. The rider Shijo succumbed to his injury while the pillion rider survived. The claimants, i.e. the wife and children and parents of the deceased Shijo filed a claim petition before the MACT under Section 166 of the MV Act, 1988. wxyz The Apex Court by reading down the provision of Sections 140 and 163-A of the MV Act, 1988 held that the claim for compensation under Section 140 of the MV Act cannot be defeated because of any ''fault'' grounds (wrongful act, neglect or default). However, it was open to the owner of the accident vehicle or the insurance company, as the case may be, to defeat the claim under Section 163-A of the Act by pleading and establishing through cogent evidence or "fault" ground (wrongful act or neglect or default). The Apex Court in the above case thus held that while Section 140 of the MV Act, 1988 was founded under the "no fault liability" principle, Section 163-A of the Act was founded under the "fault liability" principle. zyxw 17. The contention of the insurance company in the case of National Insurance Company Limited Vs. The Apex Court in the above case thus held that while Section 140 of the MV Act, 1988 was founded under the "no fault liability" principle, Section 163-A of the Act was founded under the "fault liability" principle. zyxw 17. The contention of the insurance company in the case of National Insurance Company Limited Vs. Sinitha and Others (Supra) was that the deceased being the rider of the motorcycle and as he was not the employee of the owner of the motorcycle, he stepped into the shoes of the owner. As such, no claim could be made under Section 163-A of the MV Act. The Apex Court in the above case held that it was essential for the Insurance Company to establish the relationship between the deceased and the owner of the motorcycle, to prove that the deceased had stepped into the shoes of the owner of the motorcycle. As the same was apparently not done, the Apex Court held that it could not be said that the deceased was not a third party. 18. In the case of National Insurance Company Limited Vs. Sinitha and Others (Supra), the Apex Court did not consider the Judgment of the Apex Court in Ningamma and Another (Supra). The main issue in National Insurance Company Limited Vs. Sinitha and Others (Supra) was whether Section 163-A of the MV Act, 1988 was founded under the "no fault" liability principle or "fault" liability principle. As stated earlier, the Apex Court in the above case held that it was founded on "fault liability" principle. With regard to the issue whether the deceased had stepped into the shoes of the owner of the motorbike, the Apex Court held that the insurance company did not discharge its onus to prove the relationship between the deceased and the owner of the motorbike, so as to enable the Apex Court to come to a finding as to whether the deceased was an agent, employee or representative of the owner of the motorbike. The Apex Court in the above case of National Insurance Company Limited Vs. Sinitha and Others (Supra) made the said observation in terms of the Judgment of the Apex Court in the case of Oriental Insurance Company Limited Vs. Jhuma Saha and Others, (2007) 9 SCC 263 . 19. In the case of Oriental Insurance Company Limited Vs. The Apex Court in the above case of National Insurance Company Limited Vs. Sinitha and Others (Supra) made the said observation in terms of the Judgment of the Apex Court in the case of Oriental Insurance Company Limited Vs. Jhuma Saha and Others, (2007) 9 SCC 263 . 19. In the case of Oriental Insurance Company Limited Vs. Jhuma Saha and Others(Supra), the issue was whether the claimant of the deceased, who was the owner of the motor vehicle himself, being negligent could make the claim petition under Section 166 of the MV Act, 1988. The Apex Court in the above case held that liability of the insurance company is to the extent of indemnification of the insured. If the insured could not be fastened with any liability of the provision of the MV Act, 1988, the question of the insurer being liable to indemnify the insured does not arise. wxyz Paragraphs 10, 11 and 12 of the above Judgment is reproduced below:- zyxw wxyz "10. The deceased was the owner of the vehicle. For the reasons stated in the claim petition or otherwise, he himself was to be blamed for the accident. The accident did not involve motor vehicle other than the one which he was driving. The question which arises for consideration is that the deceased himself being negligent, the claim petition under Section 166 of the Motor Vehicles Act, 1988 would be maintainable. zyxw wxyz 11. Liability of the insurer Company is to the extent of indemnification of the insured against the respondent or an injured person, a third person or in respect of damages of property. Thus, if the insured cannot be fastened with any liability under the provisions of the Motor Vehicles Act, the question of the insurer being liable to indemnify the insured, therefore, does not arise. zyxw wxyz 12. In Dhanraj v. New India Assurance Co. Ltd. It is stated as follows : (SCC pp.555-56, paras 8 & 10) zyxw wxyz "8. Thus, an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorised representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. Thus, an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorised representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle. zyxw wxyz * * * zyxw wxyz 10. In this case, it has not been shown that the policy covered any risk for injury to the owner himself. We are unable to accept the contention that the premium of Rs.4989 paid under the heading "Own damage'' is for covering liability towards personal injury. Under the heading ''Own damage'', the words ''premium on vehicle and non-electrical accessories'' appear. It is thus clear that this premium is towards damage to the vehicle and not for injury to the person of the owner. An owner of a vehicle can only claim provided a personal accident insurance has been taken out. In this case there is no such insurance." zyxw 20. As stated earlier, the Apex Court in the case of National Insurance Company Limited Vs. Sinitha and Others (Supra) did not consider the case of Ningamma and Another (Supra). In the case of Siddharam Satlingappa Mhetre Vs. State of Maharastra and Others, (2011) 1 SCC 694 , the Apex Court has held that not only the judgment of a larger strength is binding on a Bench of Judges of smaller strength, but the judgment of a coequal Bench strength is also binding on a Bench of Judges of coequal strength. In the present case, it is admitted by the counsel for the appellant that the deceased had borrowed the bike from the owner. It is also an admitted fact that the deceased was not an employee of the owner of the bike. As the judgment of the Apex Court in Ningamma and Another (Supra) squarely covers this case and as the said case has not been considered in the case of National Insurance Company Limited Vs. Sinitha and Others (Supra), the Judgment of the Apex Court in Ningamma and Another (Supra) will have to be followed, Also, the Judgment of the Apex Court in National Insurance Company Limited Vs. Sinitha and Others (Supra), the Judgment of the Apex Court in Ningamma and Another (Supra) will have to be followed, Also, the Judgment of the Apex Court in National Insurance Company Limited Vs. Sinitha and Others (Supra) is on a different set of facts. It is settled law that a decision is an authority for what it decides and not logically follows from it. A little difference in facts can change the precedential value of a decision. Further, the decision of the Apex Court in the case of National Insurance Company Limited Vs. Sinitha and Others (Supra) has been referred to a larger Bench in the case of United India Insurance Company Limited Vs. Sunil Kumar and Another, (2014) 1 SCC 680 , with regard to the finding that Section 163-A of the MV Act is founded under the ''fault'' liability principle. 21. In the case of Oriental Insurance Company Limited Vs. Sunita Rathi and Others, (1998) 1 SCC 365 (Supra), the Apex Court has held that the liability of the insurer arises only when the liability of the insured has been found. Thus, if the deceased steps into the shoes of the owner of the motorbike, the liability of the insurer would arise only when the liability of the insured has been found. As the owner of an accident vehicle cannot make a claim under Section 163-A of the MV Act, 1988, as a claim under Section 163-A can be made only against the owner of the vehicle, the claimants could not have made the claim due to the death of the deceased, as the deceased had stepped into the shoes of the owner of the vehicle. Also, the deceased who stepped into the shoes of the owner of the accident vehicle, cannot be said to be a third party in respect of the insurance policy covering the said motorcycle. 22. In the present case, the claimant would be entitled to claim compensation against the deceased from the insurance company, if the insurance policy covers any risk for death and injury to the owner himself in the insurance policy. In the case of Oriental Insurance Company Limited Vs. Rajni Devi and Others, (2008) 5 SCC 736 , the Apex Court has held at paragraph 7 as follows:- wxyz "7. In the case of Oriental Insurance Company Limited Vs. Rajni Devi and Others, (2008) 5 SCC 736 , the Apex Court has held at paragraph 7 as follows:- wxyz "7. It is now a well-settled principle of law that in a case where third party is involved, the liability of the insurance company would be unlimited. Where, however, compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the insurance company would depend upon the terms thereof. The Tribunal, in our opinion, therefore, was not correct in taking the view that while determining the amount of compensation, the only factor which would be relevant would be merely the use of the motor vehicle." zyxw 23. In view of the reasons stated above, this Court finds that no compensation could have been awarded to the respondent Nos. 1 to 4/ claimants under section 163-A of the MV Act, 1988. Accordingly, the impugned Judgment and Award dated 14.12.2018, passed by the Motor Accident Claims Tribunal, Aizawl in MACT Case No. 6/2017 is set aside. However, the respondent Nos. 1 to 4 can make a claim for compensation from the Insurance Company, depending upon whether the owner of the vehicle is covered by the contract of insurance for injury or death in the Insurance Policy. Appeal is accordingly disposed of. wxyz Send back the LCR. zyxw wxyz The appellant Insurance Company is also allowed to withdraw the statutory deposit that it had submitted before the Registry of this Court for filing the present appeal. zyxw