Insurance Cliam under Sec.163 A - as per the terms of contract of insurance, the claimant is entitled only for Rs.1 lakh but not more - because the deceased cannot be said to be a third party with respect to the insured vehicle bearing registration No. RJ 02 SA 7811. - Amendement of 2nd schdule for Rs.5 lakhs not applicable as accident took place in the year 2006
It is true that, in a claim under Section 163A of the Act, there is no need for the claimants to plead or establish the negligence and/or that the death in respect of which the claim petition is
sought to be established was due to wrongful act, neglect or default of the owner of the vehicle concerned.
It is also true that the claim petition under Section 163A of the Act is based on the principle of
no fault liability. However, at the same time, the deceased has to be a third party and cannot maintain a claim under Section 163A of the Act against the owner/insurer of the vehicle which is borrowed
by him as he will be in the shoes of the owner and he cannot maintain a claim under Section 163A of the Act against the owner and insurer of the vehicle bearing registration No. RJ 02 SA 7811.
In the present case, the parties are governed by the contract of insurance and under the contract of insurance the liability of the insurance company would be qua third party only. In the present
case, as observed hereinabove, the deceased cannot be said to be a third party with respect to the insured vehicle bearing registration No. RJ 02 SA 7811.
There cannot be any dispute that the liability of the insurance company would be as per the terms and conditions of the contract of insurance.
As held by this Court in the case of Dhanraj (supra), an insurance policy covers the liability incurred
by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorized representative) carried in the vehicle or damage to any property of a third party
caused by or arising out of the use of the vehicle. In the said decision, it is further held by this Court that Section 147 does not require an insurance company to assume risk for death or bodily
injury to the owner of the vehicle.
In view of the above and for the reasons stated above, in the present case, as the claim under Section 163A of the Act was made only against the owner and insurance company of the vehicle which
was being driven by the deceased himself as borrower of the vehicle from the owner of the vehicle and he would be in the shoes of the owner, the High Court has rightly observed and held that such a
claim was not maintainable and the claimants ought to have joined and/or ought to have made the claim under Section 163A of the Act against the driver, owner and/or the insurance company of the
offending vehicle i.e. RJ 29 2M 9223 being a third party to the said vehicle.
However, at the same time, even as per the contract of insurance, in case of personal accident the ownerdriver 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.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9393 OF 2019
Ramkhiladi & Anr. … Appellant
Versus
The United India Insurance Company & Anr. … Respondent
J U D G M E N T
M. R. Shah, J.
1. Feeling aggrieved and dissatisfied with the impugned
Judgment and Order dated 10.05.2018 passed by the High Court of
Judicature for Rajasthan at Jaipur in SBCMA No. 2614 of 2009, by
which the High Court has allowed the said appeal preferred by the
respondentinsurance company by quashing and setting aside the
Judgment and Award passed by the learned Motor Accident Claims
Tribunal and consequently has dismissed the claim petition
2
preferred by the original claimants, the original claimants have
preferred the present appeal.
2. The facts leading to the present appeal in nutshell are as
under:
2.1 That in a vehicular accident which occurred on 02.10.2006,
one Chotelal alias Shivram died. The deceased was travelling on
motorcycle bearing registration No. RJ 02 SA 7811. At this stage, it
is required to be noted that, even as per the claimants, the accident
occurred on account of rash and negligent driving of the driver of
another motorcycle bearing registration No. RJ 29 2M 9223. That
the appellants herein filed a claim petition before the Motor
Accident Claims Tribunal, Laxmangarh (Alwar), Rajasthan
(hereinafter referred to as the learned Tribunal) under Section 163A
of the Motor Vehicles Act (hereinafter referred to as the Act). At this
stage, it is required to be noted that the claim petition was preferred
only against the owner of the motorcycle bearing registration No. RJ
02 SA 7811 and its insurance company. Neither the driver nor the
owner or the insurance company of the vehicle bearing registration
No. RJ 29 2M 9223 were joined as opponents in the claim petition.
3
Therefore, as such, no claim petition was filed against the driver,
owner and the insurance company of the vehicle involved in the
accident i.e. motorcycle bearing registration No. RJ 29 2M 9223.
That an objection was raised by the respondentinsurance
companyinsurer of motorcycle bearing registration No. RJ 02 SA
7811 that as according to the claimants and even so stated in the
FIR, the driver of the motorcycle bearing registration No. RJ 29 2M
9223 was rash and negligent and the claimants have not filed the
claim petition against the owner of the said vehicle, the claim
petition is required to be dismissed against the insurance company
of the motorcycle bearing registration No. RJ 02 SA 7811. The
learned Tribunal framed the following issues:
1. Whether accident was caused on 02.10.2006 by driver
Chhotelal alias Shivram driving Motorcycle RJ 02 SA
7811 vehicle in question in rash and negligent manner?
2. Whether the driver was driving the said vehicle being in
the employment of vehicle owner opposite party No. 1
Bhagwan Sahay in his interest or with his
permission/knowledge?
4
3. Consequent to occurring death of Chhotelal alias
Shivram (driver) in the alleged accident, how much valid
amount and in what manner, the applicants are entitled
to get and from which opposite parties?
4. Whether the objections raised in the preliminary/specific
statements are significant, if yes then its effect?
5. Relief?
2.2 On appreciation of evidence, the learned Tribunal answered
Issue Nos. 1 and 2 in favour of the claimants and held that the
death of the deceased Chotelal alias Shivram had occurred from the
motorcycle involved in the accident and the said motorcycle was
insured with the respondentinsurance company, the insurance
company is liable to pay the compensation under Section 163A of
the Act. Consequently, by the Judgment and Award dated
24.02.2009, the learned Tribunal partly allowed the said claim
petition and awarded a total sum of Rs.3,67,000/as compensation
along with the interest @ 6% per annum from the date of filing of
the claim petition till the date of the actual payment
5
2.3 Feeling aggrieved and dissatisfied with the Judgment and
Award passed by the learned Tribunal holding the insurance
company of the motorcycle bearing registration No. RJ 02 SA 7811
liable to pay the compensation, the respondentinsurance companyinsurer of motorcycle bearing registration No. RJ 02 SA 7811
preferred an appeal before the High Court. That, by the impugned
Judgment and Order, the High Court has allowed the said appeal
and has quashed and set aside the Judgment and Award passed by
the learned Tribunal and consequently has dismissed the claim
petition on the ground that even as per the informant Vikram
Singh, who lodged the FIR, the accident had occurred on account of
rash and negligent driving by the driver of motorcycle bearing
registration No. RJ 29 2M 9223, however, the claimants have not
filed the claim petition against the owner of the said vehicle and in
fact, the claim petition should have been filed by the claimants
against the owner of vehicle bearing No. RJ 29 2M 9223 to seek
compensation.
6
2.4 Feeling aggrieved and dissatisfied with the impugned
Judgment and Order passed by the High Court, the original
claimants have preferred the present appeal.
3. Shri Abhishek Gupta, learned advocate appearing on behalf of
the appellantsoriginal claimants has vehemently submitted that
the High Court has materially erred in dismissing the claim petition
solely on the ground that the claimants have not filed the claim
petition against the owner of the motorcycle bearing registration No.
RJ 29 2M 9223.
3.1 It is submitted by the learned advocate appearing on behalf of
the appellantsoriginal claimants that, as such, the High Court has
not properly appreciated the fact that the claim petition preferred by
the original claimants was under Section 163A of the Act and,
therefore, when the claim petition was preferred under Section
163A of the Act, there is no need for the claimants to plead or
establish that the death in respect of which the claim petition has
been made was due to any wrongful act or neglect or default of
owner of vehicle concerned.
7
3.2 It is further submitted by the learned advocate appearing on
behalf of the appellantsoriginal claimants that the claim petition
filed by the original claimants was based on the principle of nofault
liability. It is submitted that the claimants could have elected to
file the claim petition either under Section 166 read with Section
140 of the Act against the owner/insurer of offending vehicle i.e. RJ
29 2M 9223 on the basis of the fault liability or under Section 163A
either against the owner/insurer of the vehicle being driven by the
deceased at the time of accident i.e. RJ 02 SA 7811 or against the
owner/insurer of offending vehicle i.e. RJ 29 2M 9223 on the basis
of nofault liability. It is submitted by the learned advocate
appearing on behalf of the appellantsoriginal claimants that, as
such, the deceased was not the owner of the vehicle bearing
registration No. RJ 02 SA 7811 and in fact and as observed by the
learned Tribunal, he was in employment of owner of the vehicle No.
RJ 02 SA 7811 and therefore a third party. It is submitted that
having elected to prefer the claim under Section 163A of the Act on
the principle of nofault liability against the owner/insurer of the
vehicle being driver by the deceased at the time of the accident i.e.
8
RJ 02 SA 7811, the claim was perfectly just and maintainable and
the learned Tribunal made no error in allowing the same. In
support of the above, the learned advocate appearing on behalf of
the original claimants has heavily relied upon the decision of this
Court in the case of Reshma Kumari v. Madan Mohan (2013) 9
SCC 65.
3.3 Learned counsel appearing on behalf of the original claimants
has further submitted that Section 163A of the Act has to be
interpreted in keeping with the intention of the Legislature and the
social perspective it seeks to achieve. It is a provision which is
beneficial in nature and it has been enacted as a measure of social
security. It is submitted that Section 163A of the Act commences
with a “nonobstante” clause. Liability to pay the compensation is
on “owner of the motor vehicle” or “the authorized insurer”. It is
submitted that the word “owner” has been defined under Section
2(30) to mean “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
hirepurchase, agreement or an agreement of lease or an agreement
9
of hypothecation, the person in possession of the vehicle under that
agreement.” It is submitted that having regard to the said definition
of “owner”, this Court in Naveen Kumar v. Vijay Kumar (2018) 3
SCC 1 has held the registered owner of the vehicle as per the
registering authority liable in respect of the offending vehicle despite
sale/purchase of vehicle by him. It is submitted that, in paragraph
6, it is held that the person in whose name the motor vehicle stands
registered is the owner of the vehicle for the purpose of the Act.
3.4 It is further submitted by the learned counsel appearing on
behalf of the appellantsoriginal claimants that for claiming the
compensation under Section 163A of the Act, the claimants are only
required to prove that the death or permanent disablement is as a
result of the accident arising out of the use of motor vehicle and it
will cover those who are themselves driving a vehicle, the
passengers and also pedestrians. It is submitted that in an
application under Section 163A of the Act, fault of the owner of the
vehicle or vehicles concerned or of any other person need not be
established.
10
3.5 It is further submitted by the learned counsel appearing on
behalf of the appellantsoriginal claimants that, therefore, as the
present claim premised on the nofault liability under Section 163A
of the Act by the legal heirs of the deceased, the same was
maintainable against the owner and insurer of the motor vehicle
which was being driven by him, more particularly, when the
deceased was not the owner of the vehicle and that respondent No.
2 was the registered owner of the concerned vehicle and, therefore,
the insurance company cannot be absolved from its liability to pay
the compensation as awarded by the learned Tribunal.
3.6 Making the above submissions, it is prayed to allow the
present appeal and quash and set aside the impugned Judgment
and Order passed by the High Court and to restore the Judgment
and Award passed by the learned Tribunal holding the owner of the
vehicle bearing registration No. RJ 02 SA 7811 and the insurer of
the said vehicle to pay the compensation.
3.7 It is further submitted by the learned counsel appearing on
behalf of the appellantsoriginal claimants that, as such, the
amount of compensation awarded by the learned Tribunal i.e.
11
Rs.3,67,000/ should be enhanced to Rs.5,00,000/ with interest
as awarded by the learned Tribunal in light of the fact that the 2nd
Schedule to the Motor Vehicle Act has been amended with effect
from 22.05.2018 and a fixed compensation of Rs.5,00,000/ has
been specified in the case of death. It is submitted that this Court
has enhanced the compensation even in those cases wherein no
appeal for enhancement has been preferred against the order of the
Tribunal. In support thereof, the learned counsel appearing on
behalf of the original claimants has relied upon the decision of this
Court in the case of Jitender Trivedi v. Kasam Daud (2015) 4
SCC 237.
4. The present appeal is vehemently opposed by Shri Amit Kumar
Singh, learned advocate appearing on behalf of the respondentinsurance company.
4.1 It is submitted by the learned advocate appearing on behalf of
the respondentinsurance company that, in the present case, the
deceased borrowed the motorcycle bearing registration No. RJ 02
SA 7811 from the registered owner Bhagwan Sahay. It is submitted
that another motorcycle bearing registration No. RJ 29 2M 9223
12
which was driven in a rash and negligent manner came and hit the
motorcycle on which the deceased was travelling. It is submitted
that the FIR was lodged against the owner of motorcycle bearing
registration No. RJ 29 2M 9223. It is thus clear that the insured
vehicle on which the deceased was travelling i.e. RJ 02 SA 7811
was not negligent. It is submitted that, in the present case, the
claimants of the deceased filed an application under Section 163A
of the Act and sought compensation only from the owner of the
insured vehicle i.e. RJ 02 SA 7811. It is submitted that the
learned Tribunal without any evidence on record has concluded
that the deceased was working under the employment of the
registered owner. It is submitted that, therefore, in the facts and
circumstances of the case, the High Court has rightly allowed the
appeal preferred by the insurer by observing that the claimants
ought to have filed the claim petition against the owner of the
vehicle bearing registration No. RJ 29 2M 9223. In support of
impugned Judgment and Order passed by the High Court, learned
advocate appearing on behalf of the insurance company has made
the following submissions:
13
(i) That the deceased was not a third party with respect to the
insured vehicle. He was a third party with respect to the motorcycle
bearing registration No. RJ 29 2M 9223;
(ii) That the claimants when failed to claim the compensation
from the owner of the motorcycle bearing registration No. RJ 29 2M
9223, cannot be permitted, as the driver of the said motorcycle, to
claim compensation from the owner of the vehicle bearing
registration No. RJ 02 SA 7811;
(iii) That under the Motor Vehicles Act, only the third party claims
are payable;
(iv) That in the present case, the deceased was not a third party
given that he had borrowed the vehicle from the registered owner
Shri Bhagwan Sahay Meena;
(v) That in the case of Ningamma v. United India Insurance
Co. Ltd. (2009) 13 SCC 710 and New India Assurance Co. Ltd. V.
Sadanand Mukhi (2009) 2 SCC 417, this Court has held that the
owner of the vehicle or his legal representatives or the borrower of
the vehicle cannot raise a claim for an accident in which there was
no negligence on the part of the insured vehicle. It is submitted
14
that in the aforesaid decisions, this Court has held that the
borrower of the vehicle steps into the shoes of the owner and,
therefore, the borrower of the vehicle or his legal representatives are
not entitled to compensation from the insurer under the Act. It is
submitted that the deceased in the present case has stepped into
the shoes of the owner and therefore not entitled to any third party
compensation from the insured vehicle; and
(vi) That in the case of Dhanraj v. New India Assurance Co. Ltd.
(2004) 8 SCC 553 it is held by this Court that an insurance policy
covers the liability incurred by the insured in respect of death of or
bodily injury to any person (including an owner of the goods or his
authorized representative) carried in the vehicle or damage to any
property of a third party caused by or arising out of the use of the
vehicle. It is further held that Section 147 does not require an
insurance company to assume risk for death or bodily injury to the
owner of the vehicle.
4.2 It is further submitted by the learned advocate appearing on
behalf of the insurance company that in the present case the
contract of insurance specifically provides that in case of personal
15
accident the owner cum driver is only entitled to a sum of Rs.1
Lakh. It is submitted that therefore the deceased who had stepped
into the shoes of the owner at the most may be entitled to a sum of
Rs.1 Lakh only. It is submitted that in the case of Oriental
Insurance Co. Ltd. V. Rajni Devi (2008) 5 SCC 736 when the
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 insurance company
would depend upon the terms thereof. It is submitted that, in the
said decision, this Court did not accept the view taken by the
Tribunal that while determining the amount of compensation, the
only factor which would be relevant would be merely the use of the
motor vehicle. It is submitted that, in the aforesaid decision, in
paragraph 11, it is further observed 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.
4.3 Relying upon the decision of this Court, in the case of
National Insurance Co. Ltd. V. Ashalata Bhowmik (2018) 9
SCC 801, it is submitted that the parties shall be governed by the
16
terms and conditions of the contract of insurance. It is submitted
that, therefore, at the most, the claimants may be entitled to Rs. 1
lakh only, the deceased being in the shoes of the owner.
4.4 Now, so far as the submission on behalf of the appellantsoriginal claimants that there is an amendment to the 2nd Schedule,
and a fixed compensation of Rs.5 lakhs has been specified in the
case of death and, therefore, the claimants shall be entitled to Rs.5
lakhs, it is vehemently submitted by the learned advocate appearing
on behalf of the insurance company that the said amendment shall
not be applicable retrospectively. It is submitted that, in the
present case, the accident had taken 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 on 18.02.2018, i.e. prior to the
amendment in the 2nd Schedule.
4.5 Making the above submissions, it is prayed to dismiss the
present appeal and/or partly allow the appeal to the extent of Rs.1
Lakh as per the terms and conditions of the contract of insurance.
17
5. Heard learned counsel appearing on behalf of the respective
parties at length. We have also perused and considered the
Judgment and Award passed by the learned Tribunal as well as the
impugned Judgment and Order passed by the High Court and the
evidence on record. The short question which is posed for
consideration of this Court is whether, in the facts and
circumstances of the case and in a case where the driver, owner
and the insurance company of another vehicle involved in an
accident and whose driver was negligent are not joined as parties to
the claim petition, meaning thereby that no claim petition is filed
against them and the claim petition is filed only against the owner
and the insurance company of another vehicle which was driven by
the deceased himself and the deceased being in the shoes of the
owner of the vehicle driven by himself, whether the insurance
company of the vehicle driven by the deceased himself would be
liable to pay the compensation under Section 163A of the Act?;
Whether the deceased not being a third party to the vehicle No. RJ
02 SA 7811 being in the shoes of the owner can maintain the claim
under Section 163A of the Act from the owner of the said vehicle?
18
5.1 The learned Tribunal held that even in absence of the driver,
owner and the insurance company of another vehicle involved in an
accident and whose driver was solely negligent, the application
under Section 163A of the Act would be maintainable against the
owner and the insurance company of the vehicle which was driven
by the deceased himself, firstly on the ground that the deceased
was in employment of the owner of the vehicle which was driven by
him and secondly, in an application under Section 163A of the Act,
the negligence is not required to be established and proved and it is
enough to establish and prove that the deceased has died in a
vehicular accident and while driving a vehicle. The High Court has
not agreed with the same and by the impugned Judgment and
Order has held that as the claimants have not filed the claim
petition against the owner of another vehicle whose driver was in
fact negligent, even as per the claimants and the claim petition
should have been filed by the claimants against the owner of
another vehicle to seek the compensation, the application under
Section 163A of the Act against the insurance company of the
vehicle driven by the deceased himself is liable to be dismissed.
19
5.2 While answering the aforesaid question involved in the present
case, first of all, the findings recorded by the learned Tribunal on
Issue No. 2 is required to be dealt with and considered. The learned
Tribunal framed Issue No. 2 to the effect whether the deceaseddriver was driving the vehiclemotor cycle bearing registration No.
RJ 02 SA 7811 being in employment of the vehicle owneropposite
partyBhagwan Sahay in his interest or with his
permission/knowledge?
5.3 While answering the finding recorded by the learned Tribunal
on Issue No. 2, it appears that, as such, the learned Tribunal has
not at all answered the aforesaid issue. While answering Issue No.
2, there is no specific finding whether the deceaseddriver was in
employment of the opponentowner Bhagwan Sahay or not. Even
otherwise, no evidence is led by the claimants to prove that the
deceaseddriver was in employment of the opponentowner
Bhagwan Sahay. Despite the above, while answering Issue No. 4
there is some observation made by the learned Tribunal that the
deceaseddriver was in employment of the opponentowner
Bhagwan Sahay, which is not supported by any evidence on record.
20
Under the circumstances, the deceaseddriver cannot be said to be
in employment of the opponentowner Bhagwan Sahay and,
therefore, he can be said to be permissible user and/or borrower of
motor vehicle owned by the opponentowner Bhagwan Sahay. With
these findings, the main question posed for consideration of this
Court referred to hereinabove is required to be considered.
5.4 An identical question came to be considered by this Court in
the case of Ningamma (supra). 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 163A 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 163A 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 163A of the Act. Therefore, as such, in
21
the present case, the claimants could have even claimed the
compensation and/or filed the claim petition under Section 163A 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 163A 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 163A 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
opponentowner Bhagwan Sahay. Therefore, applying the law laid
down by this Court in the case of Ningamma (supra), 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 163A of the Act against the
owner and insurance company of the vehicle bearing registration
No. RJ 02 SA 7811 shall not be maintainable.
22
5.5 It is true that, in a claim under Section 163A of the Act, there
is no need for the claimants to plead or establish the negligence
and/or that the death in respect of which the claim petition is
sought to be established was due to wrongful act, neglect or default
of the owner of the vehicle concerned. It is also true that the claim
petition under Section 163A of the Act is based on the principle of
no fault liability. However, at the same time, the deceased has to be
a third party and cannot maintain a claim under Section 163A of
the Act against the owner/insurer of the vehicle which is borrowed
by him as he will be in the shoes of the owner and he cannot
maintain a claim under Section 163A of the Act against the owner
and insurer of the vehicle bearing registration No. RJ 02 SA 7811.
In the present case, the parties are governed by the contract of
insurance and under the contract of insurance the liability of the
insurance company would be qua third party only. In the present
case, as observed hereinabove, the deceased cannot be said to be a
third party with respect to the insured vehicle bearing registration
No. RJ 02 SA 7811. There cannot be any dispute that the liability
of the insurance company would be as per the terms and conditions
23
of the contract of insurance. As held by this Court in the case of
Dhanraj (supra), an insurance policy covers the liability incurred
by the insured in respect of death of or bodily injury to any person
(including an owner of the goods or his authorized representative)
carried in the vehicle or damage to any property of a third party
caused by or arising out of the use of the vehicle. In the said
decision, it is further held by this Court that Section 147 does not
require an insurance company to assume risk for death or bodily
injury to the owner of the vehicle.
5.6 In view of the above and for the reasons stated above, in the
present case, as the claim under Section 163A of the Act was made
only against the owner and insurance company of the vehicle which
was being driven by the deceased himself as borrower of the vehicle
from the owner of the vehicle and he would be in the shoes of the
owner, the High Court has rightly observed and held that such a
claim was not maintainable and the claimants ought to have joined
and/or ought to have made the claim under Section 163A of the Act
against the driver, owner and/or the insurance company of the
24
offending vehicle i.e. RJ 29 2M 9223 being a third party to the said
vehicle.
5.7 Now, so far as the reliance placed upon by the learned
Advocate for the claimants on the decision of this Court in the case
of Naveen Kumar (supra), on considering the issue involved in that
decision, we are of the opinion that the said decision shall not be
applicable to the facts of the case on hand and/or the same shall
not be of any assistance to the claimants. In that case, the issue
was as to who could be said to be the registered owner of the vehicle
and the liability of the owner who sold the vehicle, but his name
continued to be as the owner with the registering authority. To
that, it was held that the person in whose name the motor vehicle
stands registered is the owner of the vehicle for the purpose of the
Act.
5.8 However, at the same time, even as per the contract of
insurance, in case of personal accident the ownerdriver 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
25
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.
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
26
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; Dhanraj (supra); National
Insurance Co. Ltd. V. Laxmi Narain Dhut (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.
27
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.1 lakh as observed
hereinabove.
6. In view of the above and for the reasons stated above, the
present appeal is partly allowed to the aforesaid extent and it is
observed and held that the original claimants shall be entitled to a
sum of Rs.1 lakh only with interest @ 7.5 per cent per annum from
the date of the claim petition till realization. In the facts and
circumstance of the present case, there shall be no order as to
costs.
………………………..J.
(ASHOK BHUSHAN)
…………………………..J.
(M. R. SHAH)
New Delhi,
January 7, 2020.
It is true that, in a claim under Section 163A of the Act, there is no need for the claimants to plead or establish the negligence and/or that the death in respect of which the claim petition is
sought to be established was due to wrongful act, neglect or default of the owner of the vehicle concerned.
It is also true that the claim petition under Section 163A of the Act is based on the principle of
no fault liability. However, at the same time, the deceased has to be a third party and cannot maintain a claim under Section 163A of the Act against the owner/insurer of the vehicle which is borrowed
by him as he will be in the shoes of the owner and he cannot maintain a claim under Section 163A of the Act against the owner and insurer of the vehicle bearing registration No. RJ 02 SA 7811.
In the present case, the parties are governed by the contract of insurance and under the contract of insurance the liability of the insurance company would be qua third party only. In the present
case, as observed hereinabove, the deceased cannot be said to be a third party with respect to the insured vehicle bearing registration No. RJ 02 SA 7811.
There cannot be any dispute that the liability of the insurance company would be as per the terms and conditions of the contract of insurance.
As held by this Court in the case of Dhanraj (supra), an insurance policy covers the liability incurred
by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorized representative) carried in the vehicle or damage to any property of a third party
caused by or arising out of the use of the vehicle. In the said decision, it is further held by this Court that Section 147 does not require an insurance company to assume risk for death or bodily
injury to the owner of the vehicle.
In view of the above and for the reasons stated above, in the present case, as the claim under Section 163A of the Act was made only against the owner and insurance company of the vehicle which
was being driven by the deceased himself as borrower of the vehicle from the owner of the vehicle and he would be in the shoes of the owner, the High Court has rightly observed and held that such a
claim was not maintainable and the claimants ought to have joined and/or ought to have made the claim under Section 163A of the Act against the driver, owner and/or the insurance company of the
offending vehicle i.e. RJ 29 2M 9223 being a third party to the said vehicle.
However, at the same time, even as per the contract of insurance, in case of personal accident the ownerdriver 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.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9393 OF 2019
Ramkhiladi & Anr. … Appellant
Versus
The United India Insurance Company & Anr. … Respondent
J U D G M E N T
M. R. Shah, J.
1. Feeling aggrieved and dissatisfied with the impugned
Judgment and Order dated 10.05.2018 passed by the High Court of
Judicature for Rajasthan at Jaipur in SBCMA No. 2614 of 2009, by
which the High Court has allowed the said appeal preferred by the
respondentinsurance company by quashing and setting aside the
Judgment and Award passed by the learned Motor Accident Claims
Tribunal and consequently has dismissed the claim petition
2
preferred by the original claimants, the original claimants have
preferred the present appeal.
2. The facts leading to the present appeal in nutshell are as
under:
2.1 That in a vehicular accident which occurred on 02.10.2006,
one Chotelal alias Shivram died. The deceased was travelling on
motorcycle bearing registration No. RJ 02 SA 7811. At this stage, it
is required to be noted that, even as per the claimants, the accident
occurred on account of rash and negligent driving of the driver of
another motorcycle bearing registration No. RJ 29 2M 9223. That
the appellants herein filed a claim petition before the Motor
Accident Claims Tribunal, Laxmangarh (Alwar), Rajasthan
(hereinafter referred to as the learned Tribunal) under Section 163A
of the Motor Vehicles Act (hereinafter referred to as the Act). At this
stage, it is required to be noted that the claim petition was preferred
only against the owner of the motorcycle bearing registration No. RJ
02 SA 7811 and its insurance company. Neither the driver nor the
owner or the insurance company of the vehicle bearing registration
No. RJ 29 2M 9223 were joined as opponents in the claim petition.
3
Therefore, as such, no claim petition was filed against the driver,
owner and the insurance company of the vehicle involved in the
accident i.e. motorcycle bearing registration No. RJ 29 2M 9223.
That an objection was raised by the respondentinsurance
companyinsurer of motorcycle bearing registration No. RJ 02 SA
7811 that as according to the claimants and even so stated in the
FIR, the driver of the motorcycle bearing registration No. RJ 29 2M
9223 was rash and negligent and the claimants have not filed the
claim petition against the owner of the said vehicle, the claim
petition is required to be dismissed against the insurance company
of the motorcycle bearing registration No. RJ 02 SA 7811. The
learned Tribunal framed the following issues:
1. Whether accident was caused on 02.10.2006 by driver
Chhotelal alias Shivram driving Motorcycle RJ 02 SA
7811 vehicle in question in rash and negligent manner?
2. Whether the driver was driving the said vehicle being in
the employment of vehicle owner opposite party No. 1
Bhagwan Sahay in his interest or with his
permission/knowledge?
4
3. Consequent to occurring death of Chhotelal alias
Shivram (driver) in the alleged accident, how much valid
amount and in what manner, the applicants are entitled
to get and from which opposite parties?
4. Whether the objections raised in the preliminary/specific
statements are significant, if yes then its effect?
5. Relief?
2.2 On appreciation of evidence, the learned Tribunal answered
Issue Nos. 1 and 2 in favour of the claimants and held that the
death of the deceased Chotelal alias Shivram had occurred from the
motorcycle involved in the accident and the said motorcycle was
insured with the respondentinsurance company, the insurance
company is liable to pay the compensation under Section 163A of
the Act. Consequently, by the Judgment and Award dated
24.02.2009, the learned Tribunal partly allowed the said claim
petition and awarded a total sum of Rs.3,67,000/as compensation
along with the interest @ 6% per annum from the date of filing of
the claim petition till the date of the actual payment
5
2.3 Feeling aggrieved and dissatisfied with the Judgment and
Award passed by the learned Tribunal holding the insurance
company of the motorcycle bearing registration No. RJ 02 SA 7811
liable to pay the compensation, the respondentinsurance companyinsurer of motorcycle bearing registration No. RJ 02 SA 7811
preferred an appeal before the High Court. That, by the impugned
Judgment and Order, the High Court has allowed the said appeal
and has quashed and set aside the Judgment and Award passed by
the learned Tribunal and consequently has dismissed the claim
petition on the ground that even as per the informant Vikram
Singh, who lodged the FIR, the accident had occurred on account of
rash and negligent driving by the driver of motorcycle bearing
registration No. RJ 29 2M 9223, however, the claimants have not
filed the claim petition against the owner of the said vehicle and in
fact, the claim petition should have been filed by the claimants
against the owner of vehicle bearing No. RJ 29 2M 9223 to seek
compensation.
6
2.4 Feeling aggrieved and dissatisfied with the impugned
Judgment and Order passed by the High Court, the original
claimants have preferred the present appeal.
3. Shri Abhishek Gupta, learned advocate appearing on behalf of
the appellantsoriginal claimants has vehemently submitted that
the High Court has materially erred in dismissing the claim petition
solely on the ground that the claimants have not filed the claim
petition against the owner of the motorcycle bearing registration No.
RJ 29 2M 9223.
3.1 It is submitted by the learned advocate appearing on behalf of
the appellantsoriginal claimants that, as such, the High Court has
not properly appreciated the fact that the claim petition preferred by
the original claimants was under Section 163A of the Act and,
therefore, when the claim petition was preferred under Section
163A of the Act, there is no need for the claimants to plead or
establish that the death in respect of which the claim petition has
been made was due to any wrongful act or neglect or default of
owner of vehicle concerned.
7
3.2 It is further submitted by the learned advocate appearing on
behalf of the appellantsoriginal claimants that the claim petition
filed by the original claimants was based on the principle of nofault
liability. It is submitted that the claimants could have elected to
file the claim petition either under Section 166 read with Section
140 of the Act against the owner/insurer of offending vehicle i.e. RJ
29 2M 9223 on the basis of the fault liability or under Section 163A
either against the owner/insurer of the vehicle being driven by the
deceased at the time of accident i.e. RJ 02 SA 7811 or against the
owner/insurer of offending vehicle i.e. RJ 29 2M 9223 on the basis
of nofault liability. It is submitted by the learned advocate
appearing on behalf of the appellantsoriginal claimants that, as
such, the deceased was not the owner of the vehicle bearing
registration No. RJ 02 SA 7811 and in fact and as observed by the
learned Tribunal, he was in employment of owner of the vehicle No.
RJ 02 SA 7811 and therefore a third party. It is submitted that
having elected to prefer the claim under Section 163A of the Act on
the principle of nofault liability against the owner/insurer of the
vehicle being driver by the deceased at the time of the accident i.e.
8
RJ 02 SA 7811, the claim was perfectly just and maintainable and
the learned Tribunal made no error in allowing the same. In
support of the above, the learned advocate appearing on behalf of
the original claimants has heavily relied upon the decision of this
Court in the case of Reshma Kumari v. Madan Mohan (2013) 9
SCC 65.
3.3 Learned counsel appearing on behalf of the original claimants
has further submitted that Section 163A of the Act has to be
interpreted in keeping with the intention of the Legislature and the
social perspective it seeks to achieve. It is a provision which is
beneficial in nature and it has been enacted as a measure of social
security. It is submitted that Section 163A of the Act commences
with a “nonobstante” clause. Liability to pay the compensation is
on “owner of the motor vehicle” or “the authorized insurer”. It is
submitted that the word “owner” has been defined under Section
2(30) to mean “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
hirepurchase, agreement or an agreement of lease or an agreement
9
of hypothecation, the person in possession of the vehicle under that
agreement.” It is submitted that having regard to the said definition
of “owner”, this Court in Naveen Kumar v. Vijay Kumar (2018) 3
SCC 1 has held the registered owner of the vehicle as per the
registering authority liable in respect of the offending vehicle despite
sale/purchase of vehicle by him. It is submitted that, in paragraph
6, it is held that the person in whose name the motor vehicle stands
registered is the owner of the vehicle for the purpose of the Act.
3.4 It is further submitted by the learned counsel appearing on
behalf of the appellantsoriginal claimants that for claiming the
compensation under Section 163A of the Act, the claimants are only
required to prove that the death or permanent disablement is as a
result of the accident arising out of the use of motor vehicle and it
will cover those who are themselves driving a vehicle, the
passengers and also pedestrians. It is submitted that in an
application under Section 163A of the Act, fault of the owner of the
vehicle or vehicles concerned or of any other person need not be
established.
10
3.5 It is further submitted by the learned counsel appearing on
behalf of the appellantsoriginal claimants that, therefore, as the
present claim premised on the nofault liability under Section 163A
of the Act by the legal heirs of the deceased, the same was
maintainable against the owner and insurer of the motor vehicle
which was being driven by him, more particularly, when the
deceased was not the owner of the vehicle and that respondent No.
2 was the registered owner of the concerned vehicle and, therefore,
the insurance company cannot be absolved from its liability to pay
the compensation as awarded by the learned Tribunal.
3.6 Making the above submissions, it is prayed to allow the
present appeal and quash and set aside the impugned Judgment
and Order passed by the High Court and to restore the Judgment
and Award passed by the learned Tribunal holding the owner of the
vehicle bearing registration No. RJ 02 SA 7811 and the insurer of
the said vehicle to pay the compensation.
3.7 It is further submitted by the learned counsel appearing on
behalf of the appellantsoriginal claimants that, as such, the
amount of compensation awarded by the learned Tribunal i.e.
11
Rs.3,67,000/ should be enhanced to Rs.5,00,000/ with interest
as awarded by the learned Tribunal in light of the fact that the 2nd
Schedule to the Motor Vehicle Act has been amended with effect
from 22.05.2018 and a fixed compensation of Rs.5,00,000/ has
been specified in the case of death. It is submitted that this Court
has enhanced the compensation even in those cases wherein no
appeal for enhancement has been preferred against the order of the
Tribunal. In support thereof, the learned counsel appearing on
behalf of the original claimants has relied upon the decision of this
Court in the case of Jitender Trivedi v. Kasam Daud (2015) 4
SCC 237.
4. The present appeal is vehemently opposed by Shri Amit Kumar
Singh, learned advocate appearing on behalf of the respondentinsurance company.
4.1 It is submitted by the learned advocate appearing on behalf of
the respondentinsurance company that, in the present case, the
deceased borrowed the motorcycle bearing registration No. RJ 02
SA 7811 from the registered owner Bhagwan Sahay. It is submitted
that another motorcycle bearing registration No. RJ 29 2M 9223
12
which was driven in a rash and negligent manner came and hit the
motorcycle on which the deceased was travelling. It is submitted
that the FIR was lodged against the owner of motorcycle bearing
registration No. RJ 29 2M 9223. It is thus clear that the insured
vehicle on which the deceased was travelling i.e. RJ 02 SA 7811
was not negligent. It is submitted that, in the present case, the
claimants of the deceased filed an application under Section 163A
of the Act and sought compensation only from the owner of the
insured vehicle i.e. RJ 02 SA 7811. It is submitted that the
learned Tribunal without any evidence on record has concluded
that the deceased was working under the employment of the
registered owner. It is submitted that, therefore, in the facts and
circumstances of the case, the High Court has rightly allowed the
appeal preferred by the insurer by observing that the claimants
ought to have filed the claim petition against the owner of the
vehicle bearing registration No. RJ 29 2M 9223. In support of
impugned Judgment and Order passed by the High Court, learned
advocate appearing on behalf of the insurance company has made
the following submissions:
13
(i) That the deceased was not a third party with respect to the
insured vehicle. He was a third party with respect to the motorcycle
bearing registration No. RJ 29 2M 9223;
(ii) That the claimants when failed to claim the compensation
from the owner of the motorcycle bearing registration No. RJ 29 2M
9223, cannot be permitted, as the driver of the said motorcycle, to
claim compensation from the owner of the vehicle bearing
registration No. RJ 02 SA 7811;
(iii) That under the Motor Vehicles Act, only the third party claims
are payable;
(iv) That in the present case, the deceased was not a third party
given that he had borrowed the vehicle from the registered owner
Shri Bhagwan Sahay Meena;
(v) That in the case of Ningamma v. United India Insurance
Co. Ltd. (2009) 13 SCC 710 and New India Assurance Co. Ltd. V.
Sadanand Mukhi (2009) 2 SCC 417, this Court has held that the
owner of the vehicle or his legal representatives or the borrower of
the vehicle cannot raise a claim for an accident in which there was
no negligence on the part of the insured vehicle. It is submitted
14
that in the aforesaid decisions, this Court has held that the
borrower of the vehicle steps into the shoes of the owner and,
therefore, the borrower of the vehicle or his legal representatives are
not entitled to compensation from the insurer under the Act. It is
submitted that the deceased in the present case has stepped into
the shoes of the owner and therefore not entitled to any third party
compensation from the insured vehicle; and
(vi) That in the case of Dhanraj v. New India Assurance Co. Ltd.
(2004) 8 SCC 553 it is held by this Court that an insurance policy
covers the liability incurred by the insured in respect of death of or
bodily injury to any person (including an owner of the goods or his
authorized representative) carried in the vehicle or damage to any
property of a third party caused by or arising out of the use of the
vehicle. It is further held that Section 147 does not require an
insurance company to assume risk for death or bodily injury to the
owner of the vehicle.
4.2 It is further submitted by the learned advocate appearing on
behalf of the insurance company that in the present case the
contract of insurance specifically provides that in case of personal
15
accident the owner cum driver is only entitled to a sum of Rs.1
Lakh. It is submitted that therefore the deceased who had stepped
into the shoes of the owner at the most may be entitled to a sum of
Rs.1 Lakh only. It is submitted that in the case of Oriental
Insurance Co. Ltd. V. Rajni Devi (2008) 5 SCC 736 when the
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 insurance company
would depend upon the terms thereof. It is submitted that, in the
said decision, this Court did not accept the view taken by the
Tribunal that while determining the amount of compensation, the
only factor which would be relevant would be merely the use of the
motor vehicle. It is submitted that, in the aforesaid decision, in
paragraph 11, it is further observed 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.
4.3 Relying upon the decision of this Court, in the case of
National Insurance Co. Ltd. V. Ashalata Bhowmik (2018) 9
SCC 801, it is submitted that the parties shall be governed by the
16
terms and conditions of the contract of insurance. It is submitted
that, therefore, at the most, the claimants may be entitled to Rs. 1
lakh only, the deceased being in the shoes of the owner.
4.4 Now, so far as the submission on behalf of the appellantsoriginal claimants that there is an amendment to the 2nd Schedule,
and a fixed compensation of Rs.5 lakhs has been specified in the
case of death and, therefore, the claimants shall be entitled to Rs.5
lakhs, it is vehemently submitted by the learned advocate appearing
on behalf of the insurance company that the said amendment shall
not be applicable retrospectively. It is submitted that, in the
present case, the accident had taken 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 on 18.02.2018, i.e. prior to the
amendment in the 2nd Schedule.
4.5 Making the above submissions, it is prayed to dismiss the
present appeal and/or partly allow the appeal to the extent of Rs.1
Lakh as per the terms and conditions of the contract of insurance.
17
5. Heard learned counsel appearing on behalf of the respective
parties at length. We have also perused and considered the
Judgment and Award passed by the learned Tribunal as well as the
impugned Judgment and Order passed by the High Court and the
evidence on record. The short question which is posed for
consideration of this Court is whether, in the facts and
circumstances of the case and in a case where the driver, owner
and the insurance company of another vehicle involved in an
accident and whose driver was negligent are not joined as parties to
the claim petition, meaning thereby that no claim petition is filed
against them and the claim petition is filed only against the owner
and the insurance company of another vehicle which was driven by
the deceased himself and the deceased being in the shoes of the
owner of the vehicle driven by himself, whether the insurance
company of the vehicle driven by the deceased himself would be
liable to pay the compensation under Section 163A of the Act?;
Whether the deceased not being a third party to the vehicle No. RJ
02 SA 7811 being in the shoes of the owner can maintain the claim
under Section 163A of the Act from the owner of the said vehicle?
18
5.1 The learned Tribunal held that even in absence of the driver,
owner and the insurance company of another vehicle involved in an
accident and whose driver was solely negligent, the application
under Section 163A of the Act would be maintainable against the
owner and the insurance company of the vehicle which was driven
by the deceased himself, firstly on the ground that the deceased
was in employment of the owner of the vehicle which was driven by
him and secondly, in an application under Section 163A of the Act,
the negligence is not required to be established and proved and it is
enough to establish and prove that the deceased has died in a
vehicular accident and while driving a vehicle. The High Court has
not agreed with the same and by the impugned Judgment and
Order has held that as the claimants have not filed the claim
petition against the owner of another vehicle whose driver was in
fact negligent, even as per the claimants and the claim petition
should have been filed by the claimants against the owner of
another vehicle to seek the compensation, the application under
Section 163A of the Act against the insurance company of the
vehicle driven by the deceased himself is liable to be dismissed.
19
5.2 While answering the aforesaid question involved in the present
case, first of all, the findings recorded by the learned Tribunal on
Issue No. 2 is required to be dealt with and considered. The learned
Tribunal framed Issue No. 2 to the effect whether the deceaseddriver was driving the vehiclemotor cycle bearing registration No.
RJ 02 SA 7811 being in employment of the vehicle owneropposite
partyBhagwan Sahay in his interest or with his
permission/knowledge?
5.3 While answering the finding recorded by the learned Tribunal
on Issue No. 2, it appears that, as such, the learned Tribunal has
not at all answered the aforesaid issue. While answering Issue No.
2, there is no specific finding whether the deceaseddriver was in
employment of the opponentowner Bhagwan Sahay or not. Even
otherwise, no evidence is led by the claimants to prove that the
deceaseddriver was in employment of the opponentowner
Bhagwan Sahay. Despite the above, while answering Issue No. 4
there is some observation made by the learned Tribunal that the
deceaseddriver was in employment of the opponentowner
Bhagwan Sahay, which is not supported by any evidence on record.
20
Under the circumstances, the deceaseddriver cannot be said to be
in employment of the opponentowner Bhagwan Sahay and,
therefore, he can be said to be permissible user and/or borrower of
motor vehicle owned by the opponentowner Bhagwan Sahay. With
these findings, the main question posed for consideration of this
Court referred to hereinabove is required to be considered.
5.4 An identical question came to be considered by this Court in
the case of Ningamma (supra). 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 163A 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 163A 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 163A of the Act. Therefore, as such, in
21
the present case, the claimants could have even claimed the
compensation and/or filed the claim petition under Section 163A 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 163A 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 163A 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
opponentowner Bhagwan Sahay. Therefore, applying the law laid
down by this Court in the case of Ningamma (supra), 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 163A of the Act against the
owner and insurance company of the vehicle bearing registration
No. RJ 02 SA 7811 shall not be maintainable.
22
5.5 It is true that, in a claim under Section 163A of the Act, there
is no need for the claimants to plead or establish the negligence
and/or that the death in respect of which the claim petition is
sought to be established was due to wrongful act, neglect or default
of the owner of the vehicle concerned. It is also true that the claim
petition under Section 163A of the Act is based on the principle of
no fault liability. However, at the same time, the deceased has to be
a third party and cannot maintain a claim under Section 163A of
the Act against the owner/insurer of the vehicle which is borrowed
by him as he will be in the shoes of the owner and he cannot
maintain a claim under Section 163A of the Act against the owner
and insurer of the vehicle bearing registration No. RJ 02 SA 7811.
In the present case, the parties are governed by the contract of
insurance and under the contract of insurance the liability of the
insurance company would be qua third party only. In the present
case, as observed hereinabove, the deceased cannot be said to be a
third party with respect to the insured vehicle bearing registration
No. RJ 02 SA 7811. There cannot be any dispute that the liability
of the insurance company would be as per the terms and conditions
23
of the contract of insurance. As held by this Court in the case of
Dhanraj (supra), an insurance policy covers the liability incurred
by the insured in respect of death of or bodily injury to any person
(including an owner of the goods or his authorized representative)
carried in the vehicle or damage to any property of a third party
caused by or arising out of the use of the vehicle. In the said
decision, it is further held by this Court that Section 147 does not
require an insurance company to assume risk for death or bodily
injury to the owner of the vehicle.
5.6 In view of the above and for the reasons stated above, in the
present case, as the claim under Section 163A of the Act was made
only against the owner and insurance company of the vehicle which
was being driven by the deceased himself as borrower of the vehicle
from the owner of the vehicle and he would be in the shoes of the
owner, the High Court has rightly observed and held that such a
claim was not maintainable and the claimants ought to have joined
and/or ought to have made the claim under Section 163A of the Act
against the driver, owner and/or the insurance company of the
24
offending vehicle i.e. RJ 29 2M 9223 being a third party to the said
vehicle.
5.7 Now, so far as the reliance placed upon by the learned
Advocate for the claimants on the decision of this Court in the case
of Naveen Kumar (supra), on considering the issue involved in that
decision, we are of the opinion that the said decision shall not be
applicable to the facts of the case on hand and/or the same shall
not be of any assistance to the claimants. In that case, the issue
was as to who could be said to be the registered owner of the vehicle
and the liability of the owner who sold the vehicle, but his name
continued to be as the owner with the registering authority. To
that, it was held that the person in whose name the motor vehicle
stands registered is the owner of the vehicle for the purpose of the
Act.
5.8 However, at the same time, even as per the contract of
insurance, in case of personal accident the ownerdriver 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
25
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.
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
26
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; Dhanraj (supra); National
Insurance Co. Ltd. V. Laxmi Narain Dhut (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.
27
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.1 lakh as observed
hereinabove.
6. In view of the above and for the reasons stated above, the
present appeal is partly allowed to the aforesaid extent and it is
observed and held that the original claimants shall be entitled to a
sum of Rs.1 lakh only with interest @ 7.5 per cent per annum from
the date of the claim petition till realization. In the facts and
circumstance of the present case, there shall be no order as to
costs.
………………………..J.
(ASHOK BHUSHAN)
…………………………..J.
(M. R. SHAH)
New Delhi,
January 7, 2020.
