1 FIRST APPEAL NO.1550.07 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 1550 OF 2007 UNITED INDIA ASSURANCE CO.LTD. Branch Office : Beed through its Divisional Manager, Divisional office, Osmanpura, Aurangabad. ...APPELLANT V E R S U S 1] Murlidhar S/o Ashruba Sawant, Age 50 years, Occupation Agriculture, R/o Adarash Nagar, Beed. Tq. and District Beed. 2] Sau Shantabai W/o Murlidhar Sawant, Age 48 years Occupation Household R/o as above. 3] Gokul S/o Tataram Khose, Age Major Occupation Agriculture, R/o Vishal Nivas, Adarsh Nagar, Beed Tq. and District Beed. 4] Meera W/o Ramesh Sawant, Age 21 Years,Occupation Household R/o Imampur, Tq. And District Beed. ..RESPONDENTS ... Mr. S.G.Chapalgaonkar,Advocate for Appellant Mr. A.G.Dalal,Advocate holding for Mr. V.D.Salunke,Advocate for respondent No.1and 2 Mr. N.P.Bangar Advocate for respondent No.3. Mr A.B.Karande,Advocate for respondent No.4. ... 2 FIRST APPEAL NO.1550.07 CORAM : A.V. NIRGUDE, J. DATED : DATE OF RESERVING THE JUDGMENT 13th JANUARY, 2010 DATE OF PRONOUNCING THE JUDGMENT 1st FEBRUARY,2010 ORAL JUDGMENT : 1] The appellant is challenging the Judgment and Award passed by the learned Member of the Motor Accident Claims Tribunal At Beed on 11.07.2007, in Motor Accident Claim Petition No. 143 of 2005, awarding certain amount as compensation to the respondent nos 1 and 2 and 4. 2] The facts leading to the litigation are as under: . One Ramesh, who happened to be son of the respondent Nos.1 and 2 and the husband of the respondent no.4 was riding a motorcycle owned by the respondent no.3 on 16.03.2005 and at about 10.00 p. m. Ramesh could not control the motorcycle and met with an accident. His motorcycle skidded over the road. Ramesh sustained head injury and died. The respondent Nos. 1 and 2, the parents of Ramesh, filed Motor Accident Claim Petition bearing No 143 of 2005, against the appellant, the Insurance Company, who had assured the respondent no.3’s risk in the use of the motorcycle. They made the respondent No.4 3 FIRST APPEAL NO.1550.07 the widow of Ramesh a party, because she did not join them in the claim. The appellant took up stand that the deceased Rajesh was riding the motorcycle in rash and negligent manner, due to which he met with the accident and so his dependents could not have filed this petition. The appellant also took some other defence, but for the present discussion they are not relevant. 3] The learned Member of the Tribunal, framed several issues and inter-alia held that appellants could not prove that the deceased Ramesh died due to his own negligence and that the appellants could not prove that risk of the death of deceased Ramesh was not covered under the policy. Recording such findings the learned Member of the Tribunal awarded Rs.3,50,000/- as compensation to the respondent Nos. 1 and 2 and made it payable not only to the respondent Nos. 1 and 2 but also to the respondent No.4, who was widow of the deceased Ramesh. The appellant’s advocate raised only two points in this case that are (i) whether the deceased was negligent at the time of the accident? (ii) whether the policy purchased by respondent No.3 had covered the risk of death of person riding motor cycle other than the owner driver? 4 FIRST APPEAL NO.1550.07 4] The learned advocate appearing for the appellant submitted that the provisions of section 166 of the Motor Vehicles Act are essentially based on concept of law of Tort. He submitted that it is not in dispute that the motorcycle in question was in control of the deceased Ramesh while he was riding it with a pillion rider one Rajesh at the time of incident. He further pointed out that the respondent No.3 was owner of the vehicle at the relevant time and was not in apparently responsible for the accident and consequential loss caused to the respondent Nos. 1,2 and 4. He said that the person insured- owner of the vehicle- the respondent No.3, did not incur any liability on account of death of Ramesh. He said in view of this position the Insurer of the vehicle of respondent No.3 would not incur any liability. He rightly place reliance on the judgment of the Supreme Court in the case Minu B. Mehta and another Vs. Balkrishna Ramchandra Nayan and another reported in AIR 1977 SUPREME COURT 1248. In this Judgment the Hon’ble Supreme Court stated the position of Law as to whether the provision of Motor Vehicles Act provide protection to every victim of motor vehicle accident, irrespective of the proof of negligence of offending driver of motor vehicle. The Supreme Court held as under- The liability of the owner of the Car to compensate the victim in a car accident due to the negligent driving of his servant is based on the Law of Tort, regarding the negligence of the servant the owner is made liable on the 5 FIRST APPEAL NO.1550.07 basis of vicarious liability. Before the master could be made liable it is necessary prove that the servant was acting during the course of his employment and that he was negligent. This was recorded, while the Supreme Court examining the correctness of the Judgment of the Bombay High Court holding that “the liability of the insured and consequently of the insurer to compensate a third party dying or being injured on account of the use of the insured vehicle is irrespective of whether the death, injury has been caused by rash and negligent driving”. The Supreme Court held “above expression and opinion of the Learned Judges of the High Court had no basis either in Legislative history or on a constructions of the relevant provisions of Motor Vehicles Act”. This very judgment was cited before the learned Member of the Tribunal and he in turn held as under- “I do agree that unless liability for the wrong done is established the consequences of said wrong as a cause for compensation are not sustainable. So the owner of the vehicle may not be answerable unless such reality is established.” 5] The learned member of the Tribunal, thereafter went on and held that- “there was strong possibility that accident took place not because of negligent riding of the deceased but probably some defects in the vehicle which were beyond control of the rider" 6 FIRST APPEAL NO.1550.07 . He also held that accident most probably took place due to 'bursting of tyre' of the vehicle. He placed reliance on the spot panchnama which revealed that the front tube and tyre of the motorcycle was found burst. He went on to hold that the respondent no.3, the owner of the vehicle, had knowledge about the weakness of the vehicle and so he can not avoid his liability and shift his responsibility of the accident on the deceased. . The learned Member of the Tribunal almost made guess and held that bursting of front tube and tyre took place prior to the accident and that the accident must have taken place due to sudden bursting of tyre. He further held that although there is nothing on record, the Tribunal was entitled to presume certain aspect viz.: (i) the front tube and tyre burst due to some sharp object laying on the road coming in contact, (ii) Ramesh could not see it due to darkness of the night. 7] I think these findings are not based only on the contents of the spot panchnama. The respondent Nos 1 and 2 could have certainly examined the complainant Rajesh, who had lodged the complaint in respect of the accident and who was pillion rider. In his complaint, which is at Exh.42, he made no mention of the fact that the accident took place because of bursting of tube and tyre. I perused the spot panchnama which is at Exh.41 too. 7 FIRST APPEAL NO.1550.07 No doubt, the Police recorded that they found the front tube and tyre of the vehicle in question in 'burst condition'. But the spot panchnama shows that the accident took place right in the middle of a tar road, which had "divider line". The spot panchnama did not mention that sharp objects like stones etc. were lying on the spot. 8] In any case, and even assuming that the the front tube and tyre got burst prior to the accident, the responsibility of such unforeseen event can not be fastened on the unaware owner of vehicle. The finding of the learned Member of the Tribunal that since owner of the vehicle had "ample knowledge about the defect of the tube and tyre of the vehicle", he is responsible for payment of compensation is nothing but figment of learned Member's imagination. There is nothing on record to show that the defect in the tube and tyre was apparent, as tube and tyre were worn-out and were required to be replaced immediately. 9] I am, therefore, inclined to hold that the owner of the vehicle respondent No. 3 was not at all responsible for the cause of the accident or for that matter for allowing his vehicle to be used with defects in his vehicle. In other words, I hold that for the accident the owner, the respondent No.3, was not responsible. In view of this finding law laid down in the case Minu B.Mehta and another Vs. Balkrishna Ramchandra 8 FIRST APPEAL NO.1550.07 Nayan and another supra would apply and the appellant should succeed. 10] The Advocate appearing for the respondents No.1 and 2 in turn argued that the terms and conditions of the Insurance Policy also made the appellant liable for the compensation. The original Insurance policy was brought on record and it is at Exh.59/C. On perusal of the same it is found that this policy is not an “Act only” Policy. It is a Comprehensive Policy. It is mentioned in the policy that basic protection for the insured towards the cost of the vehicle was covered on payment of premium of Rs.502/-. In addition, the respondent No.3 also bought third party basic insurance by paying premium of Rs. 160/-. In addition to this the respondent No.3 paid premium of Rs.50/- for “compulsory PA to owner driver for a sum of Rs.1,00,000/-. 11] The learned Advocate appearing for the respondent Nos.1 and 2 asserted that this clause would not only cover the owner-driver of the vehicle but also the person authorised by him to use the vehicle. This argument is based on following conditions mentioned in the Insurance Policy- Persons or class of persons entitled to drive: “Any person including insured provided that a person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence. Provided also that the person 9 FIRST APPEAL NO.1550.07 holding an effective learner’s licence may also drive the vehicle and such a person satisfies the requirements of Rule 3 of the Central Motor Vehicle Rules,1989.” 12] The learned Advocate asserted that any person holding effective driving licence would step into shoes of the owner-driver of the vehicle, the moment he takes the vehicle in his control for riding and would be entitled to similar protection. I am afraid this interpretation suggested by the learned Advocate appearing for the respondent Nos 1 and 2 of the above mentioned clause is not permissible because it is a contractual clause insusceptible to further enlargement. This clause is further elaborated in the terms of the policy, a copy of which is produced on record by the learned Advocate appearing for the appellants. Its relevant part reads as under - SECTION III – PERSONAL ACCIDENT COVER FOR OWNER- DRIVER. subject otherwise to the terms exceptions conditions and limitations of this policy the company undertakes to pay compensation as per the following scale for bodily injury/death sustained by the owner-driver of the vehicle, in direct connection with the vehicle insured or whilst mounting/dismounting from or traveling in the insured vehicle as a co-driver, caused by violent accidental external and visible means which independent of any other cause shall within six calender months of such injury result in; Nature of injury Scale of compensation i) Death 100.00% ii) Loss of two limbs or sight of two eyes or one limb and sight of one eye 100.00% 10 FIRST APPEAL NO.1550.07 iii) Loss of one limb or sight of one eye 50.00% iv) Permanent total Disablement from injuries other than named above 100.00% Provided always that A) Compensation shall be payable under only one of the items(i) to (iv) above in respect of the owner-driver arising out of any one occurrence and the total liability of the insurer shall not in the aggregate exceed the sum of Rs. 1 Lakh during any one period of insurance. B) No compensation shall be payable in respect of death or bodily injury directly or indirectly wholly or in part arising or resulting from or traceable to (a) intentional self injury suicide or attempted suicide physical defect or infirmity or (b) an accident happening whilst such person is under the influence of intoxicating liquor or drugs. C) Such compensation shall be payable directly to the insured or to his/her legal representatives whose receipt shall be the full discharge in respect of the injury to the insured. This cover is subject to (a) the owner-driver is the registered owner of the vehicle insured herein; (b) the owner-driver is the insured named in this policy. (c) the owner-driver holds an effective driving license,in accordance with the provisions of Rule 3 of the Central Motor Vehicles Rules, 1989, at the time of the accident. This term, thus, gives limited protection of Rs.1,00,000/- to the owner of the vehicle, if he himself gets injury or killed during use of the vehicle irrespective of his negligence or otherwise. 16] This point has been discussed in the judgment 11 FIRST APPEAL NO.1550.07 of Supreme Court in the case of New India Assurance Company Ltd. Vs. Sadanand Mukhi and others reported in 2009 AIR SCW 1372. In that case the policy of the vehicle was purchased by its owner. His son while driving motorcycle met with an accident and died. The Supreme Court held that the provisions of section 147 of the Motor Vehicles Act did not cover the risk, in such situation because the deceased son 'would not come within purview of term person used under section 147'. The ratio of this judgment would squarely nullify the argument of the learned advocate appearing for the respondent Nos 1 and 2, when he asserted that the deceased was also covered by term “person used in section 147”. In view of this, the appeal deserves to be allowed. The Judgment and Award passed by the learned Member of the Motor Accident Claims Tribunal, Beed in Motor Accident Claim petition No. 143 of 2005, dated 11.07.2007 stands set aside. The claim Petition of the respondent Nos. 1 and 2 stands dismissed without costs. Sd/- (A.V. NIRGUDE, J.) MTK/ ok