Research › Search › Judgment

Rajasthan High Court · body

2022 DIGILAW 2584 (RAJ)

United India Insurance Co. Ltd. v. Sarasvati Devi

2022-10-12

ANOOP KUMAR DHAND

body2022
JUDGMENT 1. Instant appeal has been preferred by the appellant insurance Company against the judgment and award dated 17.04.2015 passed by the Court of Motor Accident Claims Tribunal-cum-Additional District and Sessions Judge No.2, Beawar in M.A.C. Case No.257/2012(118/2011) by which the claim petition filed by the claimants-respondents under Section 163A of the Motor Vehicles Act, 1988 (for short ’the Act of 1988’) has been allowed and the appellant-insurance Company has been directed to pay compensation to the tune of Rs.1,13,500/- with interest @ 6% from the date of filing the claim petition to the claimants- respondents. 2. Learned counsel for the appellant-insurance Company submits that the accident occurred on 7.10.2010 and after the said accident, the injured-Jeevanlal was admitted in Government Amrit Kaur Hospital, Beawar, District Ajmer wherein hospital’s records, it was mentioned that the injured slipped from the motor cycle. Counsel submits that his discharge ticket (Ex.10) of the said hospital indicates that because of slipping from motor cycle, he sustained certain injuries. Counsel submits that as per the record of S.K. Soni Hospital (Exs. 14 & 16), the cause of death of the injured/deceased is cardiac arrest. The certain manipulations were done in the S.K. Soni Hospital’s record bearing (Ex.14), the cause of death was shown as natural, while in the similar document (Ex- 16), the cause of death was mentioned as accident. Counsel submits that these documents were manipulated to get compensation from the Tribunal. Counsel submits that the name of the registered owner of the vehicle is Naresh Kumar son of Jeevalal, but intentionally his identity was suppressed and his name was mentioned as Naresh Kumar son of Uttam Chand. 3. Counsel submits that the deceased was the father of the registered owner Naresh Kumar and in order to get claim under Section 163A of the Act of 1988, his identity was suppressed. 4. Counsel submits that in the Insurance Policy (Ex-9), the name of the registered owner is mentioned as Naresh Kumar Uttamchandani son of Jeevanlal. Counsel submits that when cross- examination was done with the witness AW-1 Tarun Kumar, he has admitted that the cause of death of the deceased was cardiac arrest and natural and his father was not working under the employment of his brother Naresh Kumar. Counsel submits that when cross- examination was done with the witness AW-1 Tarun Kumar, he has admitted that the cause of death of the deceased was cardiac arrest and natural and his father was not working under the employment of his brother Naresh Kumar. Counsel submits that apart from above factual aspects, the claim petition filed by the claimants-respondents under Section 163A of the Act of 1988 was not maintainable because the deceased stepped into the shoes of the owner and in view of the judgment of the Ho’ble Apex Court delivered in the case of Ramkhiladi & Anr. Vs. United India insurance Company & Anr., reported in 2020 (1) R.A.R. 17 (SC), the claim petition filed by the claimants was not maintainable. Counsel submits that all these facts were overlooked by the Tribunal and the claim petition filed by the claimants was erroneously allowed. Hence, interference of this Court is warranted. 5. Per contra, learned counsel for the claimants-respondents opposed the arguments raised by the counsel for the appellant insurance Company and submits that when the injured was admitted in the S.K. Soni Hospital and the records of the hospital i.e. the documents- Exs. 14 & 16 indicate that the injured met with a road traffic accident and in column 2 of these papers, the word "RTA" (i.e. Road Traffic Accident) was mentioned which specifies morbid condition about the cause of death. Counsel submits that because of road traffic accident, he died due to cardiac arrest because of the injuries sustained by him. Counsel submits that at the time of preparing the documents, the manner of death was mentioned as accidental as well as natural. Counsel submits that under these circumstances, no manipulation was done in the records of the hospital because in both documents i.e. (Exs. 14 & 16) the word "road traffic accident" was mentioned. 6. Counsel for the claimants is fair enough to admit the legal aspects of the matter that the claim petition under Section 163A was not maintainable as the deceased was father of the registered owner of the vehicle and he had stepped into the shoes of the registered owner. Counsel submits that as per the Insurance Policy (Ex.9), compulsory premium of Rs.50/- was charged as compulsory P.A to owner-driver for the amount of Rs. 1 lac, hence the claimants-respondents were entitled to get a lumpsum amount of Rs. Counsel submits that as per the Insurance Policy (Ex.9), compulsory premium of Rs.50/- was charged as compulsory P.A to owner-driver for the amount of Rs. 1 lac, hence the claimants-respondents were entitled to get a lumpsum amount of Rs. 1 lac on account of death of the deceased in terms of the policy. Counsel submits that even the Hon’ble Apex Court in the case of Ramkhiladi (supra) as dealt with the identical situation and held that as per the contract of insurance, the Insurance Company shall be liable to pay compensation to a third party and not to the owner except to the extent of Rs. 1 lac. Counsel submits that the similar view has been taken by the Bombay High Court in the case of New India Assurance Company Ltd., Vs. Rama Vishram Gavas reported in 2022 (2) BomCR 266 . Counsel submits that in view of the submissions made here-in-above, if a direction is issued to the claimants-respondents, then they would refund the rest of the compensation amount with interest to the appellant insurance Company in terms of the judgments of Ramkhiladi (supra) passed by the Hon’ble Apex Court and Rama Vishram Gavas (supra) passed by the Bombay High Court. 7. Heard and considered the arguments raised by the respective counsel and perused the record. 8. This fact is not in dispute that the injured met with a road traffic accident occurred on 7.10.2010 and this fact is also clear from the discharge ticket (Ex.9) issued by Government Amrit Kaur Hsopital, Beawar that he slipped from motor cycle. This fact is also clear from the hospital’s record (Ex. 14 & 16) issued by S.K. Soni Hospital that the injured met with a road traffic accident and sustained certain injuries. So, the factum of receiving the injuries in the road traffic accident is not disputed in the record. Only the question which remains for consideration of this Court is that whether the claimants were entitled to get any compensation in a claim petition filed under Section 163A of the Act of 1988 as they are entitled to get lumpsum amount of rupees one lac in terms of contract of Insurance. Only the question which remains for consideration of this Court is that whether the claimants were entitled to get any compensation in a claim petition filed under Section 163A of the Act of 1988 as they are entitled to get lumpsum amount of rupees one lac in terms of contract of Insurance. This fact is not in dispute that the deceased was father of the registered owner of the vehicle, hence he stepped into the shoes of the registered owner of the vehicle but looking to the Insurance Policy (Ex.9) which indicates that the premium of Rs. 50/- was charged by the Insurance Company under the head of compulsory P.A to owner-driver for an amount of Rs. 1 lac. Looking to the verdict of Hon’ble Apex Court in the case of Ramkhiladi (supra), the Insurance Company shall be liable to pay compensation to a third party except to the extent of Rs. 1 lac. Hon’ble Apex Court dealt with this issue in para No.5.9 which is as under: 5.9 Now, so far as the submission made on behalf of the claimants that in a claim under Section 163A of the Act mere use of the vehicle is enough and despite the compensation claimed by the heirs of the owner of the motorcycle which was involved in the accident resulting in his death, the claim under Section 163A of the Act would be maintainable is concerned, in view of the decision of this Court in Rajni Devi (supra), the aforesaid cannot be accepted. In Rajni Devi (supra), it has been specifically observed and held that the provisions of Section 163A of the Act cannot be said to have any application with regard to an accident wherein the owner of the motor vehicle himself is involved. After considering the decisions of this Court in the cases of Oriental Insurance Co. Ltd. V. Jhuma Saha (2007) 9 SCC 263 ; Dhan raj (supra); National Insurance Co. Ltd. V. Laxmi Narain Phut (2007) 3 SCC 700 and Premkumari v. Prahlad Dev (2008) 3 SCC 193 , it is ultimately concluded by this Court that the liability under Section 163A of the Act is on the owner of the vehicle as a person cannot be both, a claimant as also a recipient and, therefore, the heirs of the owner could not have maintained the claim in terms of Section 163A of the Act. It is further observed that, for the said purpose, only the terms of the contract of insurance could be taken recourse to. In the recent decision of this Court in the case of Ashalata Bhowmik (supra), it is specifically held by this Court that the parties shall be governed by the terms and conditions of the contract of insurance. Therefore, as per the contract of insurance, the insurance company shall be liable to pay the compensation to a third party and not to the owner, except to the extent of Rs.l lakh as observed hereinabove." 9. Following the judgment of the Hon’ble Apex Court in the case of Ramkhiladi (supra), the Bombay High Court has dealt with this issue in the case of Rama Vishram Gavas (supra) in para Nos. 20 & 21 which is as under: "20. So far as the contractual liability, it is imperative to note Sajakali Jamadar ...15 FA-112-2013- aw-caf-1999-2013.doc that the policy of insurance (Exh.32), which was placed on record by the insurer/appellant, reveals that the premium was paid under the head compulsory p.a. owner - cum - driver and the liability was restricated to Rs. 1 Lakh. The learned counsel for the applicants endeavoured to canvass a submission that consequent to amendment in the Second Schedule, a fixed amount of Rs. 5 Lakhs had been specified in case of death and, therefore, the applicants are entitled to a sum of Rs.5 Lakhs. In the instant case, the accident took place on 30th June, 2007. The impugned judgment and award was passed on 19th May, 2012. In the circumstances, the applicants would not be entitled to receive the compensation in terms of the amendment to the Second Schedule, which came into effect from 22nd May, 2018. This aspect is also covered by the judgment of the Supreme Court in the case of Ramkhiladi (Supra) wherein an identical submission was repelled. 21. The conspectus of the aforesaid consideration is that the respondent Nos. 1 to 5 - applicants are entitled to compensation of Rs. 1 Lakh in terms of the contract of insurance, Resultantly, the appeal deserves to be partly allowed." 10. In view of the discussions made here-in-above, it is held that the claimants are not entitled to claim compensation under Section 163A of the Act but they are entitled to get compensation of Rs. 1 lac in terms of the contract of policy. In view of the discussions made here-in-above, it is held that the claimants are not entitled to claim compensation under Section 163A of the Act but they are entitled to get compensation of Rs. 1 lac in terms of the contract of policy. Resultantly, the appeal filed by the Insurance Company is partly allowed and the impugned judgment and award dated 17.04.2015 is modified. The claimants are directed to refund the additional amount of Rs. 13,500/- with interest @ 6% with effect from the date of filing of the claim petition till the actual realisation to the appellant insurance Company within a period of two months from the date of receipt of certified copy of this judgment. 11. With the aforesaid observations, the appeal stands disposed of. 12. Stay application and all pending application (s), if any, also stand(s) disposed of.