F.A.O. No. 3237 OF 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 3237 OF 2010 Date of Decision: November 30th, 2011 Smt. Asha Rani and others .... Appellants Versus Shiv Ram and another .... Respondents CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? Present Mr. Sushil Bhardwaj, Advocate, for the appellants. Mr. Ravinder Arora, Advocate, for respondent No.2-Insurance Company. VIJENDER SINGH MALIK, J. Smt. Asha Rani and others, the appellants, have brought this appeal under the provisions of section 173 of the Motor Vehicles Act, 1988 (for short, "the Act") challenging the award dated 22.10.2009 made by the Motor Accidents Claims Tribunal, Karnal (for short, "the Tribunal") vide which their claim petition brought under section 163-A of the Act has been dismissed. The facts necessary for disposal of this appeal are as under:- On 3.11.2006 at about 10.15 p.m. Raj Pal (deceased) was going from Nilokheri to village Bhadson on a motorcycle F.A.O. No. 3237 OF 2010 2 bearing registration No. HR-05-S-7173. He was driving his motorcycle on his due left side of the road at a very slow speed. When he was near the bridge of Manak Majra, an unknown vehicle had hit his motorcycle and succeeded in escaping from there. The deceased suffered multiple injuries including head injury and he died at the spot. The deceased was taken to General Hospital, Karnal where postmortem examination on his dead body was conducted. A case was registered in this regard at Police Station Butana vide FIR No. 292 dated 4.11.2006 under sections 279/304-A IPC. The deceased had been 27 years of age and was working as labourer earning ` 3,000/- per month. The claimants have spent a sum of ` 30,000/- on the last rites of the deceased and they have sought compensation in a sum of ` 20,00,000/-. Shiv Ram, the owner of motorcycle No.HR-05-S-7173 did not contest the case and was proceeded against exparte. The insurer of the motorcycle, the Oriental Insurance Company Limited, respondent No. 2 has filed written statement claiming collusion between the claimants and respondent No.1. It is also averred that the deceased was not holding a valid and effective driving licence and that the vehicle was being used in violation of the terms and conditions of the insurance policy. The very accident is denied to have occurred involving the vehicle in question. It is denied that the deceased suffered any injury or died on account of the same. However, the motorcycle bearing engine No. 26369 and chassis no. 81993 is admitted to have F.A.O. No. 3237 OF 2010 3 been insured with the answering respondent for a period from 5.9.2006 to 4.9.2007 in the name of Shiv Ram son of Kanhya Ram. On the pleadings of the parties, the following issues were framed by the Tribunal:- 1. Whether the accident in question took place due to rash and negligent driving of motorcycle bearing No. No.HR-05-S-7173 by respondent No.1 ? OPP 2. Whether the claimants are entitled to compensation, if so, how much amount and from whom? OPP 3. Whether the respondent no.1 was not holding a valid and effective driving licence at the time of accident, if so, its effect? OPR 3 3-A Whether the risk of the deceased was not covered under the terms of the insurance policy? OPR 3. 4. Relief. Parties led their respective evidence. Hearing learned counsel representing them, learned Tribunal found the claim petition to be not maintainable under section 163-A of the Act in view of the ratio of a decision of Hon'ble Supreme Court of India in Ningamma & Anr. Vs. United India Insurance Co. Ltd. J.T. 2009 (8) SC 262. Consequently, the claim petition has been dismissed. F.A.O. No. 3237 OF 2010 4 I have heard Mr. Sushil Bhardwaj, learned counsel for the appellants and Mr. Ravinder Arora, learned counsel for respondent No.2-Insurance company. I have gone through the record carefully. Learned counsel for the appellants has submitted that the deceased had been a borrower of the motorcycle and he cannot be treated as owner thereof. According to him, the ratio of Ningamma's case (supra) is only to the effect that under section 163-A of the Act, the owner is liable to pay compensation and as the claimant himself is the owner, he cannot be both a claimant and a tort-feasor, liable to pay compensation. He has submitted that since the claimants here are the dependent family members of the borrower of the vehicle, they are entitled to claim compensation. Learned counsel for the appellants has further submitted that in Ningamma's case (supra), the insurance policy was “Act Policy”, where only third party could make a claim for compensation. According to him, in this case the insurance policy is comprehensive policy, where the insurance company could enter into a contract to even pay compensation to the owner of the vehicle. According to him, in this case the additional premium had been paid for personal accident cover and, therefore, the claimants have been entitled to compensation for the death of the borrower of the vehicle. He has submitted in the alternative that in case of comprehensive policy, even additional premium is not required to be paid for F.A.O. No. 3237 OF 2010 5 covering the owner of the vehicle. According to him, in case of comprehensive policy, the insurer has to exclude the liability by specifically mentioning the same in the policy and if it is not done, then the owner is also covered by the policy. Learned counsel for respondent No. 2 has submitted, on the other hand, that though, additional premium had been received in this case by the insurer for personal accident of owner and driver, yet the same does not make any difference because the claim petition had been brought under section 163- A of the Act and a claim petition under section 163-A cannot be allowed in favour of the owner as well as against the owner. He has, therefore, submitted that learned Tribunal has rightly held the claim petition to be not maintainable. The insurance policy has two columns in the “Schedule of Premium”. Part (A) of the same relates to own damage and part (B) of the same relates to third party liability. It is in this Part (B) that additional premium is shown to have been paid in a sum of `50/- in Ex. RW 2/A. Thereafter there is an endorsement “PA cover under Section III for owner-Driver (CSI) : Rs.100,000.00”. Had the comprehensive policy been covering the owner for any type of loss, there would have been no necessity to pay and receive additional premium of `50/- to extend the cover to owner-driver in a sum of ` 1,00,000/-. Therefore, the comprehensive policy by itself does not cover the loss of life to the owner. It only covers the damage to the vehicle of the insured in part (A) and liability to the third party in F.A.O. No. 3237 OF 2010 6 part (B). A borrower of a motorcycle from the owner would step into the shoes of the owner as is laid down by Hon'ble Supreme Court in New India Assurance Company Limited Vs. Sadanand Mukhi and others (2009) 2 Supreme Court Cases 417. Once the borrower i.e. Raj Pal (deceased) would be treated as owner of the vehicle, the claim petition under section 163-A of the Act would not be maintainable because as laid down in Ningamma's case (supra), a person cannot be both, the claimant as also a tort-feasor liable to pay compensation. The following has been laid down by Hon'ble Supreme Court in Ningamma's case (supra), which governs the cases under section 163-A of the Act, where the claimant himself is owner or would be deemed to be owner of the motorcycle, by use of which the accident had occurred:- “18. In the case of Oriental Insurance Company Ltd. v. Rajni Devi and Others, 2008(4) RCR(Civil) 905 : 2008(6) RAJ 396 : (2008) 5 SCC 736, 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 MVA cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved. The decision further held that the question is no longer res integra. The F.A.O. No. 3237 OF 2010 7 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. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163-A of the MVA. 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 true that the insurance company could accept additional premium and could enhance the scope of the cover but the same would be applicable in a case under section 166 of the Act and not under section 163-A of the Act. This case cannot even be considered under section 166 of the Act because, the other vehicle which is claimed to have hit the motorcycle was not traceable and its owner, driver and insurer have not been made party to this case. In these circumstances, the claim petition is not maintainable under the provisions of section 163-A of the Act. The appeal is, therefore, found to have no merit and is dismissed, upholding the award passed by the Tribunal. (VIJENDER SINGH MALIK) JUDGE November 30th, 2011 som