New India Assurance Co. Ltd. vs Umesh Kumari and Others

Rakesh Kumar Garg, J.—This is insurer''s appeal challenging the impugned award dated 25th July, 2008 whereby compensation has been granted to Respondent Nos. 1 and 2 on account of death of Pawan Kumar in a motor vehicular accident which occurred on 21st September, 2005. The offending vehicle was duly insured with the Appellant.

The grievance of the Appellant before this Court is that no liability could be fastened upon the Appellant as deceased Pawan Kumar was not a third party and therefore, the claim petition which was filed u/s 163-A of the Motor Vehicless Act, 1988 against the Appellant was not maintainable. According to the Counsel for the Appellant, Section 163-A of the Motor Vehicless Act, 1988 lays down that the owner of the Motor Vehicles or the authorized insurer shall be liable to pay compensation in case of death or permanent disability due to accident arising opt of the use of Motor Vehicles as indicated in the Second Schedule to the legal heirs or the victims as the case may be. Since there was no tortfeaser, therefore, the Appellant was not liable to pay any compensation. In support of his argument, Learned Counsel for the Appellant has placed reliance on (i) Dhanraj Vs. New India Assurance Co. Ltd. and Another, ; (ii) Ningamma and Another Vs. United India Insurance Co. Ltd., and (iii) New India Assurance Company Ltd. Vs. Sadanand Mukhi and Others, .

I have heard Learned Counsel for the Appellant.

There is no dispute with the proposition of law as canvassed by Learned Counsel for the Appellant. However, a perusal of the impugned award would show that the insurance policy Ext.Rl was a comprehensive policy and the insurer had paid premium towards compulsory P.A. to owner-cwra-driver of the offending vehicle. In view of the aforesaid fact, the argument raised by the Learned Counsel for the Appellant is not sustainable.

In Ningamma and Another Vs. United India Insurance Co. Ltd., , the Hon''ble Supreme Court of India held as under:

In the case of Oriental Insurance Co. Ltd. Vs. Rajni Devi and Others, , wherein one of us, namely, Hon''ble Justice S.B. Sinha is a party, it has been categorically held that in a case where third party is involved, the liability of the Insurance Company would be unlimited. It was also held in the said decision that 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 claimant against the Insurance Company would depend upon the terms thereof, It was held in the said decision that Section 163-A of the Motor Vehicless Act cannot be said to have any application in respect of an accident wherein the owner of the Motor Vehicles himself is involved. The decision further held that the question is no longer res Integra. The liability u/s 163-A of the M.V. Act 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 M.V. Act. In our considered opinion, the ratio of the aforesaid decision 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 employee of the owner of the motorbike although he was authorized to drive the said vehicle by its owner, and therefore, he would step into the shoes of the owner of the motorbike.

It is also useful to refer to para 21 of the judgment of the Hon''ble Apex Court in Ningamma''s case, (supra), which reads as under:

Section 147 of the Motor Vehicless Act provides that the policy of insurance could also cover cases against any liability which may be incurred by the insurer in respect of death or fatal injury to any person including owner of the vehicle or his authorized representative carried in the vehicle or arising out of the use of vehicle in the public place.

In the present case, admittedly, the premium towards compulsory PA to owner-cwm-driver was paid and therefore, in view of the aforesaid observations of the Hon''ble Supreme Court of India as referred to above, the Insurance Company vyas liable to make the payment of compensation.

Faced with this situation, Learned Counsel for the Appellant has argued that the terms and conditions of the policy makes it clear that if owner is driving the vehicle, in that case only, the aforesaid clause will come into play and the Insurance Company would be liable to pay. Since in the present case, the owner himself was not driving the vehicle, even if the premium has been paid covering the risk of owner-cum-driver, the same would not be applicable.

The argument of the Learned Counsel for the Appellant is without any merit.

In this regard, the aforesaid phrase would obviously mean to cover owner or driver of the vehicle. Moreover, it is the case of the Appellant itself that Pawan Kumar deceased cannot be treated as a third party being son of the owner and he has to be termed as owner itself as he has stepped into the shoes of the owner by borrowing the vehicle with permission of the owner. If that is so, Pawan Kumar deceased has to be treated as owner of the vehicle and in that eventuality, the aforesaid clause of comprehensive policy would cover the claim of the claimant and on the basis of the aforesaid clause of the policy, the Appellant is liable to pay compensation.

No other point has been urged.