Reliance General Insurance Co. Ltd. vs Mahabubi and Others

G. Narendra, J.—Heard the learned counsel for the appellant and the first respondent.

For the sake of convenience the parties are referred to by their ranking before the Tribunal.

The brief facts of the case are as follows:

"The claim petition was preferred under section 163-A of the Motor Vehicles Act (for short ''the Act''), claiming compensation of Rs. 8,70,000/- for the death of the claimant''s husband in a motor vehicle accident. It is stated that on 12.11.2007 at about 9:30 p.m. the deceased Bashasab was riding the Bajaj motorcycle bearing Reg. No. KA-28/TR-236 from Sutagundar village to Marol and as he approached the land of one Yallappa Muttagi on the Koodalasangam Alamatti NH-13 road, the vehicle skidded on the account of hitting a ditch which was not visible to the rider in the dark of the night, as a result of which the deceased sustained grievous injuries on his head and died while in treatment. Prior to the accident he was hale and healthy person earning about Rs. 40,000/- p.a. He is sole earning member of the family, due to his untimely demise the claimant has lost her husband at young age and she has lost not only her husband but also a life partner and pillar of her life. A case was also registered by the jurisdictional police and it was found that the accident has been caused due to the bike hitting a ditch on the road which was full of rain water and there was no other vehicle which caused the accident."

Per contra the respondent had contended that the accident occurred solely on account of rash and negligent riding by the deceased himself and he was not possessing a valid driving licence and there is violation of the RCA FC and insurance policy and they prayed for dismissal of the appeal.

On the said pleadings the Tribunal framed the following three issues and substantiated the same.

"1. Whether the petitioner proves that on 12.11.07 at about 9.30 p.m. near Yallappa Muttagi land on Kudalasangam-Almatti NH-13 road, when deceased Bashasab was coming on Bajaj Pulsar motorcycle bearing No. KA.28/TQ-236 from Sutagundar to Marol village, at that time the motorcycle was skidding the deceased was fell on the road, as a result, deceased was sustained grievous head injury and was died while under treatment in the hospital?

Whether the petitioner further proves that she is entitled for the compensation from the respondents?

What order or award?"

The petitioner has got examined herself as PW.1 and got marked Exs. P1 to P7. On behalf of respondent No. 2 insurance policy was got marked as Ex. R1 but did not adduce any oral evidence. The Tribunal was pleased to hold that the petitioner is entitled to a sum of Rs. 3,70,000/- with future interest at the rate of 6% p.a.

The police records clearly stated that, the accident occurred on account of the skidding of the vehicle and vehicle skidded on account of hitting the ditch on the road. It is also noted that the said ditch was filled with rainwater. In the circumstances, the deduction of the Tribunal that the accident has occurred on the vehicle hitting the ditch does not warrant any interference. The implication is that the rider of the motorcycle cannot be blamed for rashness or negligence. The appellant has canvassed the singular point that the deceased having borrowed the vehicle from its owner he automatically and naturally stepped into the shoes of the owner and in that view of the fact, the owner is not entitled to maintain a claim for compensation against himself.

The learned counsel for the appellant would place reliance on the judgment of the Hon''ble Apex Court in the case of Ningamma and Anr. v. United India Insurance Co. Ltd., it was a case involving similar circumstances. The core contention therein was, that the accident had occurred on account of the fault of the deceased and hence, the claim petition under the provisions of 163-A of the Act was not applicable and the provisions of 163-A could be invoked only if two vehicles were involved and the other ground of contention was that any proceeding under section 163-A of the Act no claim petition claiming income in excess of Rs. 40,000/- can be entertained. The High Court held that a claim petition is not maintainable on account of the fact that there is no tortfeasor available and consequently, the judgment and award of the Tribunal came to be set aside. The Hon''ble Apex Court at para- 13 framed a question to be answered in the said judgment. It was argued by the insurer therein that the claimants were not third parties as the deceased had stepped into the shoes of the owner. Thereafter the Apex court relying on a case of Oriental Insurance Co. Ltd. Vs. Rajni Devi and Others, held in para 18 as follows:

"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."

And thereafter it was held that

"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."

Thus, what could be deduced is that the owner of a vehicle, if he is tortfeasor himself, is not entitled for compensation but if the terms of the contract provides for the same then the claim would depend upon terms thereof. The finding at para-22 would further amplify the rationale for the reasoning of the Hon''ble Apex Court. It has also relied on the judgment rendered by it in the case of Raj Rani & Ors. v. Oriental Insurance Co. Ltd. & Ors., wherein it has held that the normal rules and pleadings and evidence would not be of paramount importance in proceeding under the Motor Vehicle Act. Thereafter, the Hon''ble Apex Court has been pleased to remand the case to the High Court for consideration on merits. In the interregnum the Hon''ble Apex Court in the case of National Insurance Company Limited v. Sinitha and Others has taken a contrary view at para-41 to 43 are extracted herein below:

"41. The second contention advanced at the hands of the learned counsel for the petitioner was that Shijo being the rider of the motorcycle, cannot be treated as a third party. It was pointed out that the claim under Section 163-A can only be raised at the behest of the third party. It seems that the instant determination raised at the hands of the learned counsel for the petitioner is based on the determination rendered by this Court in Oriental Insurance Co. Ltd. v. Jhuma Saha wherein this Court held as under: (SCC p. 265, para 10)

"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."

According to the learned counsel for the petitioner, since the rider of the vehicle involved in the accident was Shijo himself he would stand in the shoes of the owner, and as such, no claim for compensation can be raised in an accident caused by him, under Section 163-A of the Act.

To substantiate his second contention, it would be essential for the petitioner to establish that Shijo having occupied the shoes of the owner, cannot be treated as the third party. Only factual details brought on record through reliable evidence can discharge the aforesaid onus. During the course of hearing, despite our queries, the learned counsel for the petitioner could not point out the relationship between Shijo and the owner of the motorcycle involved in the accident. Shijo is not shown to be an employee of the owner. He was not even shown as the representative of the owner. In order to establish the relationship between Shijo and the owner, the petitioner Insurance Company could have easily produced either the owner himself as a witness, or even the claimants themselves as witnesses. These or other witnesses who could have brought out the relationship between the owner and Shijo were not produced by the petitioner herein, before the Tribunal. The petitioner has, therefore, not discharged the onus which rested on its shoulders.

Since the relationship between Shijo and the owner has not been established, nor the capacity in which he was riding the vehicle has been brought out, it is not possible for us to conclude that Shijo while riding the motorcycle on the fateful day was an agent, employee or representative of the owner. It was open to the petitioner to defeat the claim for compensation raised by the respondents by establishing that the rider Shijo represented the owner, and as such, was not a third party, in terms of the judgment rendered by this Court in Oriental Insurance Co. Ltd. case. The petitioner failed to discharge the said onus. In view of the above, it is not possible for us to accede to the second contention advanced at the hands of the learned counsel for the petitioner."

Reading of the above would demonstrate that the insurer or the party pleading has to demonstrate that the rider who is not the owner has actually stepped into shoes of the owner and this having not been demonstrated the Court was pleased to reject such contention, that it could be presumed that any person who is not registered owner and who is in possession of a motorcycle would automatically step into the shoes of the owner. This being the view of the Hon''ble Apex Court, this court is inclined to accept the position of the law as settled by the Apex Court in this aspect. In the case on hand also it is seen that neither any material has been placed on record nor reveal that such contention was ever taken before the Tribunal or was proved by letting in cogent evidence. That apart this court in the judgment reported in United India Insurance Company Limited Vs. Yusuf Hasansab Gokak and Others, has been pleased to hold that any person other than the said two parties to a contract would answer the description of ''third party'' i.e. those who are not signatory to the contract. This court has in the case of The Oriental Insurance Company Limited v. Shilpakala and Ors. Relying and in the case of National Insurance Company Ltd. Vs. Sinitha and Others, , has been pleased to hold that the contention, that even the third parties would step into the shoes of the owner is unsustainable.

In view of the above discussion, this Court is of the view that the appeal by the insurer must fail. Accordingly, the appeal is rejected.

The amount in deposit shall be transmitted to the Tribunal for necessary orders.