Research › Search › Judgment

Chhattisgarh High Court · body

2024 DIGILAW 337 (CHH)

Harish Kumar Sahu S/o Hemlal Sahu v. Laxmi Sahu W/o Harish Sahu

2024-04-18

RADHAKISHAN AGRAWAL

body2024
JUDGMENT ON BOARD : 1. This appeal has been filed by the appellant/claimant being aggrieved by the impugned award dated 30.10.2015 passed by the 5th Additional Motor Accident Claims Tribunal, Bilaspur (C.G.) (for short, 'the Tribunal) in Claim Case No.43/14, whereby the Tribunal has dismissed the claim petition filed by the claimant/appellant under Section 163-A of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act, 1988). 2. Briefly stated the facts of the story is that on 12.09.2012, the appellant/claimant, who was driving the motorcycle bearing registration No.CG- 12-AA-2292 (for short, the offending motorcycle), was coming from Jaijaipur to Paladi, met with a vehicular accident near Darrabhata main road, owing to which, he received injuries on his head, both hands, leg, ear and other parts of the body. Matter was reported to Baradwar Police Station. Thereafter, the injured/claimant was referred to Primary Health Center, Baradwar and then was treated at Apollo Hospital, Bilaspur and Narayana Hospital, Raipur. At the time of accident, respondent No.1, being wife of the claimant, was registered owner of the offending motorcycle whereas respondent No.2 was insurer of the offending motorcycle. On account of injuries sustained by him, he sustained permanent disability to the extent of 50% and obtained medical certificate from the Medical Board. 3. Owing to injuries including permanent disability to the extent of 50% sustained by him in vehicular accident, he filed a claim petition seeking total compensation of Rs.19,50,000/- on various heads. Respondent No.1 remained ex-parte before the Claims Tribunal. 4. The respondent No.2/insurance company took a defence that the accident happened due to the negligence of the injured/claimant, for which, he himself was responsible. It was admitted by it that on the date of incident the offending motorcycle was insured but there was breach of policy conditions by respondent No.1 as respondent No.1 did not drive the offending motorcycle but had given the offending motorcycle to some other person to drive the same and thereby caused the accident, which is a clear violation of the terms and conditions of the insurance policy. It is also pleaded by it on the date of accident, the appellant, who was not even a third party, was not possessing valid and effective driving licence, as such, no liability could be fastened upon it. 5. It is also pleaded by it on the date of accident, the appellant, who was not even a third party, was not possessing valid and effective driving licence, as such, no liability could be fastened upon it. 5. The Tribunal, vide impugned award dated 30.10.2015, after considering the evidence led by the parties, has held that the claimant has been able to prove the factum of accident that was caused on 12.09.2012 and sustained injuries, but dismissed the claim petition in toto on the ground that there was breach of policy conditions and since the appellant/claimant stepped into shoes of the owner of the motorcycle and thus does not come within the ambit of third party, therefore, the appellant/claimant has been unable to prove his case. Hence, the present appeal. 6. Learned counsel for the appellant submits that the Tribunal has committed an illegality in holding respondent No.2/insurance company not liable for payment of compensation. While drawing attention of this Court to the insurance policy, filed by the insurer and is part of record of Claims Tribunal, it is vehemently submitted that additional premium of Rs.50/- was obtained by it for covering the risk of owner driver and liability of the insurance has been shown to be limited to Rs.1 lakh, therefore, the insurance company cannot be exonerated from its liability to pay that much compensation. 7. On the other hand, learned counsel appearing for the respondent/insurance company, while supporting the order of dismissal, submits that the claim petition filed by the appellant is not tenable on the ground that respondent No.1 is the wife of the claimant as well as owner of the offending motorcycle and injured/claimant stepped into shoes of the owner of motorcycle and does not fall in the category of third party and that the learned Claims Tribunal has rightly dismissed the claim petition. 8. I have heard learned counsel for the parties and perused the record of the Tribunal including the evidence adduced by the claimants minutely. 9. It appears from perusal of the averments of the claim petition that respondent No.1 is registered owner of the offending motorcycle and the appellant/claimant, being husband of the registered owner vehicle in question and on the date of accident, the vehicle in question was insured with the respondent/insurance company. 9. It appears from perusal of the averments of the claim petition that respondent No.1 is registered owner of the offending motorcycle and the appellant/claimant, being husband of the registered owner vehicle in question and on the date of accident, the vehicle in question was insured with the respondent/insurance company. It is also not in dispute that on the date of accident, the motorcycle was being driven by the appellant/claimant. 10. It is admitted fact that claim under Section 163-A of the Act, 1988 is based on no-fault liability principle only means that fault or negligence or wrongful act, neglect or default of driver/owner of offending vehicle does not need to be established for award of compensation as per Schedule-II. Perusal of documents of the criminal case, exhibited as Ex.A-1 to Ex.A-5 and medical documents from Ex.A-6 to Ex.A-149 as also averments pleaded by both the parties coupled with evidence adduced on record, it is crystal clear that because of the accident the appellant sustained several injuries. 11. Now, I shall deal with the argument advanced by the learned counsel for respondent/insurance company that the appellant/claimant, being stepped into shoes of the owner of the vehicle in question, does not fall under the category of third party. Law on this point is already settled by the Supreme Court in the matter of Ramkhiladi and another vs. United India Insurance Company and another, reported in (2020) 2 SCC 550 wherein the Supreme Court, relying upon its own case rendered in the matter of Ningamma v. United India Insurance Co. Ltd., reported in (2009) 13 SCC 710 , has specifically observed and held that the provisions of Section 163-A 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. Para 9.4 is relevant for the purpose, which is reproduced as under: “9.4” An identical question came to be considered by this Court in Nigamma. In that case, the deceased was driving a motorcycle which was borrowed from its real owner and met with an accident by dashing against a bullock cart i.e. without involving any other vehicle. The claim petition was filed under Section 163-A of the Act by the legal representatives of the deceased against the real owner of the motorcycle which was being driven by the deceased. The claim petition was filed under Section 163-A of the Act by the legal representatives of the deceased against the real owner of the motorcycle which was being driven by the deceased. To that, this Court has observed and held that since the deceased has stepped into the shoes of the owner of the vehicle, Section 163-A of the Act cannot apply wherein the owner of the vehicle himself is involved. Consequently, it was held that the legal representatives of the deceased could not have claimed the compensation under Section 163-A of the Act. Therefore, as such in the present case, the claimants could have even claimed the compensation and/or filed the claim petition under Section 163-A of the Act against the driver, owner and insurance company of the offending vehicle i.e. motorcycle bearing Registration No. RJ 29 2M 9223, being a third party with respect to the offending vehicle. However, no claim under Section 163-A was filed against the driver, owner and/or insurance company of the motorcycle bearing Registration No.RJ 29 2M 9223. It is an admitted position that the claim under Section 163-A of the Act was only against the owner and the insurance company of the motorcycle bearing Registration No. RJ 02 SA 7811 which was borrowed by the deceased from the opponent-owner Bhagwan Sahay. Therefore, applying the law laid down by this Court in Ningamma and as the deceased has stepped into the shoes of the owner of the vehicle bearing Registration No.RJ 02 SA 7811, as rightly held by the High Court, the claim petition under Section 163-A of the Act against the owner and insurance company of the vehicle bearing Registration No. RJ 02 SA 7811 shall not be maintainable. 12. Having applied the principles laid down by the Supreme Court, in the above referred matter, to the present case, it is held that the claim petition filed under Section 163-A of the Act, 1988 is not maintainable. Having observed and held as such, the Supreme Court, however, restricted the claimants to entitle personal accident cover strictly as per terms of insurance contract covering borrowed vehicle, which is sum of Rs.1 lakh and awarded interest as well. Having observed and held as such, the Supreme Court, however, restricted the claimants to entitle personal accident cover strictly as per terms of insurance contract covering borrowed vehicle, which is sum of Rs.1 lakh and awarded interest as well. Para 9.8 is relevant for the purpose, is reproduced as under: “9.8 However, at the same time, even as per the contract of insurance, in case of personal accident the owner-driver is entitled to a sum of Rs.1 lakh. Therefore, the deceased, as observed hereinabove, who would be in the shoes of the owner shall be entitled to a sum of Rs.1 lakh, even as per the contract of insurance. However, it is the case on behalf of the original claimants that there is an amendment to the 2nd Schedule and a fixed amount of Rs.5 lakh has been specified in case of death and therefore the claimants shall be entitled to Rs.5 lakh. The same cannot be accepted. In the present case, the accident took place in the year 2006 and even the judgment and award was passed by the learned Tribunal in the year 2009, and the impugned judgment and order has been passed by the High Court in 10-05-2018 i.e. much prior to the amendment in the 2nd Schedule. In the facts and circumstance of the present case, the claimants shall not be entitled to the benefit of the amendment to the 2nd Schedule. At the same time, as observed hereinabove, the claimants shall be entitled to Rs.1 lakh as per the terms of the contract of insurance, the driver being in the shoes of the owner of the vehicle.” 13. Now, the question which falls in my consideration is whether the appellant/claimant is entitled to Rs.1,00,000/- as compensation. I am of the considered opinion that he would certainly be entitled to compensation of Rs.1 lakh, while taking into account the terms of contract of insurance. The document, i.e., insurance policy filed by respondent No.2 and brought on record by it shows that it is a 'Motor Insurance Certificate-cum-Policy Schedule', and on perusal of the same, it appears that Rs.50/- was obtained by the insurance company towards personal accident (PA) for owner-driver and that the policy is 'liability only policy' and it could also be seen in that document that liability of the insurer has been fixed at Rs.1,00,000/-. 14. 14. Considering the facts and circumstances of the case and further considering that the accident was of the year 2012 and on the date of accident, the vehicle in question was insured and that the period of insurance policy was from 26.01.2012 till midnight of 25.01.2013, which is stated to be 'liability only policy' and as only premium of Rs.50/- was obtained by it, which is also not disputed by the insurer, and also considering the object of benevolent act of the statute and that keeping in mind the principles laid down in the case of Ramkhiladi (supra), it would be appropriate in the interest of justice if the appellant/claimant is granted compensation to the tune of Rs.1,00,000/- with interest @ 6% per annum from the date of institution of claim petition till realisation payable by respondent/insurance company, which is just and proper compensation. Ordered accordingly. It is, therefore, directed that the insurance company shall satisfy the compensation payable to the appellants/claimants. 15. With the above observation and modification, the appeal stands disposed of.