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2021 DIGILAW 195 (GAU)

Oriental Insurance Co Ltd v. Manju Sonowal

2021-03-02

KALYAN RAI SURANA

body2021
JUDGMENT Kalyan Rai Surana, J. - Heard Mr. S. Dutta, learned senior counsel assisted by Mrs. M. Choudhury, learned counsel for the appellant. None appears on call for the respondents although notice was duly served. 2. By this appeal under section 173 of the Motor Vehicles Act, 1988, the appellant has assailed the judgment and award dated 16.09.2011 passed by the learned Member, MACT, Kamrup, Guwahati in MAC Case No.50/2007. 3. On 23.12.2005, the deceased Late Mahendra Sonowal, the predecessor-in-interest of the respondent nos.1, 2 and 3 was riding a motorcycle insured with the appellant bearing registration No. AS-23/D-6939, owned by his brother Ratan Sonowal and while proceeding towards Margherita, he met with an accident in which he had sustained grievous injuries and died on the spot. The respondent nos.1, 2 and 3 filed a claim petition and in the trial, the Accident Information Report issued by the Margherita P.S. was exhibited as Ext.1 and Postmortem Report was exhibited as Ext.2. The original driving licence of the deceased could not be exhibited, but the photocopy thereof was produced before the learned Tribunal as document no.1. The appellant examined the Insurance Investigator as D.W.1 and he had exhibited his report as Ext.1 and photograph of the place of accident as Ext.2. 4. The appellant had contested the claim petition by filing written statement denying the liability on the ground that the deceased victim was not covered by the policy of insurance. The owner of the vehicle did not contest the proceedings. The learned Tribunal framed the following two issues for trial, viz. (i) Whether victim, Mahendra Sonowal, dies as a result of the injuries sustained by him in the alleged road accident dated 23.12.2005 arising out of the use of the vehicle No. AS-23/D-6939? (ii) Whether the claimants are entitled to get any compensation and if yes, to what extent and by whom amongst the opposite parties, the said compensation amount will be payable? 5. The learned Tribunal had held in respect of issue no.1 that the deceased Mahendra Sonowal died in the accident which occurred on 23.12.2005 involving use of motorcycle referred above and the issue no.1 was decided in the affirmative. In respect of issue no.2, the learned Tribunal discarded the decision of the Supreme Court of India in the case of Ningamma & Anr. Vs. United India Insurance Co. In respect of issue no.2, the learned Tribunal discarded the decision of the Supreme Court of India in the case of Ningamma & Anr. Vs. United India Insurance Co. Ltd., (2009) ACJ 2020 (SC) while arriving at a finding that the deceased was not the owner of the vehicle at the relevant time and held that there was no material to show that the deceased had borrowed the vehicle for his own purpose and the actual owner ceased to have control over it. In view of the provisions of section 163 A of the Motor Vehicles Act, it was held that compensation cannot be refused by the Tribunal even when the victim himself is responsible for the injury suffered by him or death of the victim. Therefore, by holding that the conditions of insurance policy was not found to be violated, the award of Rs.3,86,000/- (Rupees three lakh eighty six thousand only) was passed with interest @ 6% p.a. from the date of filing of the claim petition till payment. 6. The learned senior counsel for the appellant has submitted that the primary onus to prove the status of the deceased, who was riding the motorcycle must be on the claimant and it was the duty of the claimants to establish as to what was the status of the person, who was riding the vehicle, whether it was by way of borrowing, hiring or by unauthorizedly riding the vehicle and only after such evidence is tendered, the onus shifts on the appellant insurer to disprove the evidence. It is submitted that in this case, no FIR was lodged by the registered owner of the vehicle that the deceased was riding the motorcycle without his consent. Hence, it is submitted that the deceased could only be a borrower and not an unauthorized driver. It is also submitted that motorcycle is not a vehicle which can be driven by another on hire as it was not registered as a commercial vehicle. In support of his submissions to deny liability, the learned senior counsel has referred to the case of Ningamma (supra), United India Insurance Company Ltd. Vs. Anjali Kalita, (2017) 4 GauLT 731 , National Insurance Co. Ltd. Vs. Shyam Rai Mahanta & Ors., (2018) 5 GauLR 241 : 2017 SCCOnLineGau 1297 and he has also cited the case of United India Insurance Co. Ltd. Vs. Musstt. Anjali Kalita, (2017) 4 GauLT 731 , National Insurance Co. Ltd. Vs. Shyam Rai Mahanta & Ors., (2018) 5 GauLR 241 : 2017 SCCOnLineGau 1297 and he has also cited the case of United India Insurance Co. Ltd. Vs. Musstt. Sakila Begum, (2018) ACJ 2060 (Gau) to project that the said decision appears to him to be per-incurium having not taken into account the previous judgment on the point by this Court. 7. It would be relevant to first refer to the definition of owner as provided in section 2 (30) of the Motor Vehicles Act, 1988, which is as follows: "(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." 8. From the hereinbefore referred definition, it cannot be said that any borrower or unauthorized rider of a motorcycle would be covered by the definition of owner. It is not the projected case of the respondent nos.1, 2 and 3 that their predecessor-in-interest was riding the motorcycle under a hire purchase agreement, which can be ruled out because no evidence was adduced to that effect by the P.W.1. It is further seen that the respondent no.1, 2 and 3, who are the claimants had failed to prove the status of the deceased in relation to the motorcycle. In this regard, as the deceased was riding the motorcycle not owned by him, it cannot be said that there was a valid contract of insurance between the appellant and the deceased. Therefore, as the deceased was riding the motorcycle without any grievance being raised by the owner of the motorcycle, i.e. the respondent no.4, the only inference which can be drawn is that the deceased was only a borrower. It is nobody's case that the deceased was driving the motorcycle as an unauthorized driver. 9. There is no dispute that when the claim petition is filed under the provision of section 163 A of the Motor Vehicles Act, it is not required for the claimants to prove negligence of the driver. It is nobody's case that the deceased was driving the motorcycle as an unauthorized driver. 9. There is no dispute that when the claim petition is filed under the provision of section 163 A of the Motor Vehicles Act, it is not required for the claimants to prove negligence of the driver. Admittedly, there is no evidence to show that the deceased can be called to be a paid driver in respect of a motorcycle and therefore, the statutory insurance of the Act liability coverage would not extend to the driver of a motorcycle. Therefore, there is nothing on record to show that the liability of the appellant extended in respect of the deceased who was driving the motorcycle and therefore, the deceased is deemed to have stepped into the shoes of the owner of the motorcycle and the claimants, being the legal representatives of the deceased could not have claimed compensation under section 163 A of the Motor Vehicles Act. In this regard, the law is well settled in the case of Ningamma (supra). Paragraph 19 thereof is quoted below: "19. 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. 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 163-A. 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 163-A 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 163-A of the MVA." 10. It would also be relevant to refer to paragraph 9 and 10 of the case of Shyam Rai Mahanta (supra), which squarely covers the present case in hand: "9. It would also be relevant to refer to paragraph 9 and 10 of the case of Shyam Rai Mahanta (supra), which squarely covers the present case in hand: "9. In view of above, it appears that while deciding the case of Musstt. Sakila Begum (supra), which was decided later in point of time, the earlier order of this Court was not placed before the Hon'ble Bench, deciding the case of Musstt. Sakila Begum (supra). Therefore, this Court is required to follow the judgment rendered prior at point of time. As a result, this appeal stands allowed by holding that in the present case in hand, the primary onus to prove the status of the deceased, who was riding the motorcycle must be on the claimant. It is the duty of the claimant to establish as to what was the status of the person who was riding the vehicle i.e. whether it was by way of borrowing, by hiring or by unauthrorizedly riding of the vehicle. The burden to prove, according to this Court, always is on the claimant. Only if evidence to prove a particular fact is tendered, the onus of disproving it shifts on the insurer and that any if party takes a specific plea, then it would be their burden of proving it. The insurer cannot have knowledge of the fact that in what capacity the deceased was driving the motorcycle and there being no contract between the insurer and the deceased, it is impossible to shift the onus on the insurer to prove the status of the rider as borrower of the vehicle involved in the accident. 10. Under the circumstances, this Court is inclined to hold that unless the claimant proves the status of the rider/victim, the question of disproving the said point will not be on the insurer. The very fact that the deceased was riding the vehicle, in the absence of any ejahar before the police that the vehicle was stolen, it must be presumed that the rider was driving the motorcycle with the consent of the owner. Once with the consent one is riding the vehicle, there can be no escape that such person can only be a borrower, otherwise the person who is driving the vehicle would be an unauthorized driver, which is nobody case. Once with the consent one is riding the vehicle, there can be no escape that such person can only be a borrower, otherwise the person who is driving the vehicle would be an unauthorized driver, which is nobody case. Therefore, this Court is inclined to follow the judgment passed in the earlier decision in the case of Anjali Kalita (supra), which is prior in point of time to that of Musstt. Sakila Begum (supra). No other judgment has been placed before this Court to show that the ratio decided in the case of Musstt. Sakila Begum (supra), was being followed earlier also or to show that the judgment in the case of Anjali Kalita (supra) was per-incurium. Therefore, following the ratio of Ningamma and anr. (supra), this Court is of the view that the deceased in this case falls within the shoes of the owner. Therefore, the finding recorded by the learned Tribunal on issue No. 2 and 3 are found to be not sustainable in light of the ratio laid down in the case of Ningamma and anr. (supra)." 11. In the present case in hand, the respondent nos.1, 2 and 3 have not been able to demonstrate before the learned Tribunal that the appellant was liable to indemnify the deceased under the insurance policy of Ratan Sonowal (respondent no.4) and, as such, the appellant would not be liable to satisfy the award without there being a contract of insurance between the appellant and the deceased. Therefore, the ratio laid down by the Supreme Court of India in the case of Ningamma (supra) is found to squarely apply in the facts of the present case in hand. 12. The learned senior counsel has also submitted that the personal accident coverage, if any, attached to the insurance policy would entitle only the insurer to get benefit out of it and such benefit be extended to the deceased, with whom the appellant did not have a contract of insurance. 13. Therefore, in view of the discussion above, the Court is constrained to hold that the claimants, i.e. respondent nos.1, 2 and 3 are not entitled to be indemnified by the appellant arising out of death of the predecessor-in-interest, namely, Late Mahendra Sonowal, who died in the motorcycle accident on 23.12.2005 involving motorcycle bearing registration No. AS23/D-6939. 14. 13. Therefore, in view of the discussion above, the Court is constrained to hold that the claimants, i.e. respondent nos.1, 2 and 3 are not entitled to be indemnified by the appellant arising out of death of the predecessor-in-interest, namely, Late Mahendra Sonowal, who died in the motorcycle accident on 23.12.2005 involving motorcycle bearing registration No. AS23/D-6939. 14. Accordingly, this appeal stands allowed and the judgment and award dated 16.09.2011 passed by the learned Member, MACT, Kamrup, Guwahati in MAC Case No.50/2007 is hereby set aside. Resultantly, the claim petition stands dismissed. There shall be no order as to cost. 15. LCR is returned. 16. Registry shall release the statutory amount to the appellant.