IN THE HIGH COURT OF JUDICATURE AT PATNA M.A. No.472 of 2002 GITA DEVI, WIFE OF SRI BISHWANATH PRASAD GUPTA RESIDENT OF MOHALLA-DALDALI BAZAR, P.O. CHAPRA, (H.O.), P.S. CHAPRA, TOWN/DIST-SARAN ----------- (Appellant) Versus THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD. SUDARSAN BUILDING, GROUND FLOOR, AT MUNICIPAL CHOWK, P.O. CHAPRA (H.O.) P.S.-CHAPRA, TOWN/DIST-SARAN ----------------------------- (Respondent) FOR APPELLANT MR. SHAILENDRA KUMAR ADV. MR. MUKESH PD. SINGH ADV. FOR RESPONDENT MR. ASHOK PRIYADARSHI ADV. with MA No.527 of 2002 BRANCH MANAGER NATIONAL INSURANCE COMPANY LTD. P.S. CHAPRA TOWN DISTRICT SARAN THROUGH ITS AUTHORIZED SIGNATORY SRI RITURAJ AMIN OFFICER, N.I.C. R.O. 4TH FLOOR SOVE BHAWAN, “R” BLOCK, PATNA, ------------------------------- (Appellant) Versus GEETA DEVI WIFE OF BISHWANATH PRASAD GUPTA, RESIDENT OF DALDALI BAZAR P.O. AND P.S. CHAPRA DISTRICT SARAN, (OWNER) -------------------------- (Respondent) FOR APPELLANT MR. ASHOK PRIYADARSHI ADV. FOR RESPONDENT MR. SHAILENDRA KUMAR ADV. MR. MUKESH PD. SINGH ADV. ----------- 17 25.01.2011 Heard learned counsel for the parties. 2. The two Miscellaneous Appeals are being heard together and disposed off by the common order, as both arises out of the same order dated 13th August, 2002, passed by Sri Amresh Kumar Lal, 6th Additional District & Sessions Judge-cum-Motor 2 Accident Claims Tribunal, Chapra, in M.A.C.T. Case No. 16 of 2001, by which the Tribunal has allowed the compensation to the tune of Rs. 3,75,000/- with interest at the rate of 9% per annam, from the date of the institution of the claim to the date of the realization of the amount with direction that the Insurance Company is liable to pay compensation. 3. The Miscellaneous Appeal no. 472 of 2002 filed by the claimant for enhancement of the claim regarding the death of deceased. 4. Whereas, the Miscellaneous Appeal 527 of 2002 filed by the National Insurance Company Limited, Challenging the order on the ground that the learned Claims Tribunal misdirected itself in entertaining the claim petition under Section 163A of the Motor Vehicles Act, 1988, when the deceased who was the owner while driving vehicle died due to rash and negligent driving of the vehicle by falling in the river, and further on the ground that the deceased has contributed the negligence. 5. From the perusal of the record it appears that the claimant, the mother of the deceased, filed Claim under Section 163A of the Motor Vehicles Act, 1988, 3 alleging that on 20.09.2000 at about 6:45 p.m. Manoranjan Prasad Gupta, who is the owner of the Suzuki motorcycle No. BR 0416345, having insured with National Insurance Company Limited, Chapra, while travelling on the motorcycle, met with the accident and died on the spot. The income of the deceased was Rs. 6,000/- per month. The claimant is the mother of the deceased. 6. The Insurance Company appeared and filed the written statement, stating therein that the claimant’s son met with an accident at road bridge on Patna-Chapra Road while he was driving the motorcycle with Dharm Prasad pillion rider. The said Road bridge was half portion opened for construction and other half left for traffic. The deceased could not noticed that the half portion open for construction straightway drived the motorcycle negligently on the opening portion of the bridge, by which fell along with vehicle in the river and both the persons on the motorcycle died. It is submitted that occurrence took place due to rash and negligence act of the driver, as mentioned in the First Information Report, and hence the accident took place due to rash 4 and negligence act of the driver of the vehicle, who was also owner and hence was not a third party to claim compensation. 7. However, before the Tribunal, objection was raised by the insurer that the claim was not maintainable, accident took place due to the fault of the deceased who was the driver-cum-owner of the vehicle and hence no claim established against the insurer as the insured is himself the driver. However, the Tribunal taking into consideration of 1997 (1) P.L.J.R. 827 (Oriental Insurance Company Ltd. Vrs. Most. Baidehi Devi and Ors.), allowed the claim of the claimant illegally and held that claim petition is maintainable. 8. The learned counsel for the appellant the Insurance Company in Miscellaneous Appeal No. 527 of 2002, has contended that in the Claim Petition, it has been admitted that the deceased was the owner, was driving the motorcycle at the time of the accident. Since the owner of the vehicle is not a third party, within the meaning of Section 147 of the Motor Vehicles Act, 1988, and hence is not entitled to claim compensation and hence the Application under Section 163 A of the 5 Motor Vehicles Act, 1988, is not maintainable. 9. The learned counsel for the claimant, however, contended that even if Application under Section 163A of the Motor Vehicles Act, 1988, is not made out, the application may be treated under Section 166 of the Motor Vehicles Act, 1988, as the policy condition covers the risk of owner. It has been asserted that the Insurance Company, in the written statement has not taken any plea that the policy does not cover the risk of owner. It has further been asserted that no issues were framed whether the death of owner was covered under the policy or not. Hence it has been contended that since no issue was framed whether policy covered the risk of the owner remaining to be decided. However, the insurance policy has not been brought on record. 10. Hence the question for consideration is whether the policy covered the risk of owner and further whether the heir of owner entitle to a claim under Section 163 of the Motor Vehicles Act and if not whether entitle to claim under Section 166 of the Motor Vehicles Act. 11. Hence taking in consideration the admitted 6 fact in the case that claim petition filed with regard to death of owner while driving the vehicle. The question for consideration is whether the heir of owner who are claimant are entitle to compensation. Now I proceed to consider first the various decision filed by the parties to desire the principle with regard to claim by heir of owner of motorcycle in case of death of owner of the vehicle. 12. However, decision reported in (2008) 5 S.C.C. 736 (Oriental Insurance Company Ltd. Vrs. Rajni Devi), issues arose regarding the liability in Act policy of the insurer with regard to the accident involving the owner of the motorcycle when the claimants were the heir of the deceased. It was held that liability under Section 163A of the Motor Vehicles Act, 1988, is on the owner of the vehicle as a person, and the claimant cannot be both a claimant as also the recipient and held that the heirs of a deceased who is also owner could not have maintained a claim under Section 163A of the Motor Vehicles act, 1988. However so far the first question is concerned the policy is required to be taken into consideration whether it cover the risk of owner. 13. The Supreme Court in decision reported in 7 (2007) 9 S.C.C. 263 (Oriental Insurance Company Ltd. Vrs. Jhuma Saha (Smt.) and Ors.), also considered the same issue. The fact was that deceased was the owner of the vehicle died while driving the vehicle. The question for consideration that since the deceased himself being negligent, the claim petition under Section 166 of the Motor Vehicles Act, 1988, would be maintainable and it was held that the liability on the Insurance Company is to the extent of indemnification of the insured against the injured third person or in respect of damages of the property. If the insured cannot be fastened with the liability under the Motor Vehicles Act, 1988, the question of insurer being liable to indemnify the insured does not arise. 14. Further reliance has been placed in decision reported in (2004) 8 S.C.C. 553 (Dhanraj Vrs. New India Assurance Company Ltd. and Anr.). In that case the policy was the act policy held that the premium under the heading and damage does not cover the injury to the person of the owner and held that owner of the vehicle can only claim provided a personal accident, insurance has been taken out and held in that facts and 8 circumstances of the case that there is no such insurance, the Hon’ble Supreme Court also considered the decisions reported in (2007) 3 S.C.C. 700 (National Insurance Company Ltd. Vrs. Laxmi Narain Dhut), 2008 (3) S.C.C. 193 (Prem Kumari and Ors. Vrs. Prahlad Dev and Ors.), 2008 (12) S.C.C. 338 (Honnamma and Ors. Vrs. Nanjundaiah and Ors.) and held that the said principle has been duly applied and on the basis held that the petition filed by the owner under Section 163A of the Motor Vehicles Act, 1988 is not maintainable. 15. However, in decision reported in 2008 (5) S.C.C. 736 (Oriental Insurance Company Ltd. Vrs. Rajni Devi and Ors.), the policy of insurance mentioned that the owner of the vehicle deposited an extra amount of Rs. 50/- covering his personal risk to the extent of Rs. 1,00,000/- and taking this fact into consideration that policy covered the risk of owner as extra premium has been paid held that according to the term of contract of insurance, the liability of the insurance was confined to Rs. 1,00000/-, covering the risk of owner placing reliance on the decision reported in 2007 (9) S.C.C. 263, (supra). In that case, the deceased was the owner of any 9 insured vehicle while he was driven the vehicle he dash the tree on a road and succumbed to injury and claim petition filed under Section 166 of the Motor Vehicles Act, 1988. The insurer resisted the claim on ground that owner is not entitled to get any compensation as the insurance policy is a third party in nature and only third party is entitled. The insurer and the insured is the first and second party, and person other than that will be third party, but the deceased was the owner and was driving the vehicle, met with the accident. However, the Tribunal held that the vehicle being insured and an additional premium having been paid the liability was covered by the insurance policy and in the appeal relying on the decision reported in 2002 (7) S.C.C. 456, (National Insurance Co. Ltd., Chandigarh Vrs. Nicolletta Rohtagi and Ors.), High Court held the appeal was not maintainable or was accepted and then the matter came up before the Hon’ble Supreme Court and the short question involved whether the impugned judgment sustainable in view of Section 147 of the Motor Vehicles Act, 1988, which confined to a third party claim only. There it has been held that liability of 10 the Insurance company is to the extent of indemnification of the insured against the respondent or any injured person of third party or in respect of the damage of property and thus if the insured cannot be fastened with the liability under the Provisions of Motor Vehicles Act, 1988, the question of insurer being liable to indemnify the insured does not arise. However, the Supreme Court held that if the additional premium was not paid in respect of risk of the death or bodily injury of the owner of the vehicle, Section 147 B of the Motor Vehicles Act, 1988, does not come to rescue and held that in the fact and circumstances of the case since no additional premium was paid to cover the risk of the owner the claim of the heir is not maintainable. 16. In decision reported in (2009) 13 S.C.C. 710 (Ningamma and Anr. Vrs. United India Insurance Company Ltd.), the deceased was driving the motorcycle by borrowing from its real owner and a claim under Section 163 A of the Motor Vehicles Act, 1988, was filed by the legal representative and the claim was granted by the Tribunal, the Insurance Company preferred an appeal before High Court on ground that 11 petition under Section 163A of the Motor Vehicles Act, 1988, is not maintainable, and the High Court allowed the appeal on ground that there was no tortfeasor involved. Before the Hon’ble Supreme Court the argument advanced on behalf of the claimant that High Court erred in setting aside the judgment and ignoring the jurisdiction to determine the just compensation and further that the High Court erroneously held that the Tribunal erred in law in not deciding the claim petition as one under Section 166 of the Motor Vehicles Act, 1988. On the other hand the respondent Insurance Company urged that High Court rightly set aside the judgment as a person is eligible for compensation for the loss caused due to the use of the motor vehicle, as provided under Section 163A of the Motor Vehicles Act, 1988, and the person who suffer the loss must be a third person. In the facts and circumstances of the case, the deceased or the appellant was not the third party, therefore, the judgment rendered by the High Court did not call for any interference and in view of the submission the question for consideration was whether the legal representative of the deceased who was driving 12 the vehicle after borrowing it from the real owner, met with an accident without involving any other vehicle would be entitled to compensation under Section 163A of the Motor Vehicles Act, 1988, or under any other provision of law and also whether insurer who issued the insurance policy could be bound to indemnify the deceased or his legal representative and after consideration Section 166 (3) and various decisions of the Supreme Court in 2004 (5) S.C.C. 385, (Deepal Girishbhai Soni and Ors. Vrs. United India Insurance Company Ltd., Baroda), (2007) 5 S.C.C. 428, (Oriental Insurance Company Ltd. Vrs. Meenavariyal and Ors.), (2003) 2 S.C.C. 223, (New India Assurance Company Ltd. Vrs. Asha Rani and Ors.), (1977) 2 S.C.C. 441 (Minu B. Mehta and Anr. Vrs. Balkrishna Ram Chandra Nayan and Anr.), held that in case where a victim died due to the accident arising out of the motor vehicle, in that event the liability to pay compensation is on the Insurance Company or the owner, as the case may be, as provided under Section 163A of the Motor Vehicles Act, 1988, but if it is proved that the driver is the owner of the motor vehicle, in that case the owner 13 could not himself be a recipient of the compensation has the liability to pay the same is on him and this proposition is absolutely clear on a reading of Section 163A of the Motor Vehicles Act, 1988. Accordingly, the legal representative of the deceased who have steped into the shoes of the owner of the motor vehicle could not have claimed compensation under Section 163 A of the Motor Vehicles Act, 1988. The Hon’ble Supreme Court has also further observed that the question remains, whether an application for demand of compensation would have been made by the legal representative of the deceased as provided in Section 166 of the Motor Vehicles Act, 1988. Then Section 166 of the Motor Vehicles Act, 1988, specifically provides that an application for compensation arising out of an accident of the nature specified in sub Section 1 of Section 165 of the Motor Vehicles Act, and when an application is made under Section 166 of the Motor Vehicles Act, 1988, the Tribunal is required to hold enquiry and then proceed to make an award and when such claim is made by the legal representative of the deceased it has to be proved that the deceased was not himself responsible for the accident by 14 his rash and negligence driving, and the deceased cover under the policy so as to make the Insurance Company liable to make the payment to the heirs of the deceased. It has further been held that Section 147 of the Motor Vehicles Act, 1988, provides that policy of insurance would also cover cases against any liability which may be incurred by the insurer in respect of death or fatal injury to any person including owner of the vehicle or his authorized representative carried in the vehicle or arising out of the use of the vehicle in public place, and further the Hon’ble Supreme Court held that such an issue was required to be considered by the High Court in the light of the facts and evidence adduced in the case as the issue as to whether the claim could be considered under the Provisions of Section 166 of the Motor Vehicles Act, 1988, and further take into consideration the decision reported in (2008) 5 S.C.C. 736, (supra), where is has been held that where compensation is claimed for the death of owner or another passenger of the vehicle the contract of Insurance Company being covered by contract, quo contract and the claim of the Insurance Company would depend upon the term thereupon and 15 further considered that Section 166 of the Motor Vehicles Act, 1988, speaks about it’s compensation and further held that Section 166 of the Motor Vehicles Act, 1988, deals with just compensation and when if in the pleading no specific claim was made under Section 166 of the Motor Vehicles Act, 1988, in this connection, it is relevant to mention here para 34 of the decision reported in (2009) 13 S.C.C. 710 (Ningamma and anr. Vrs. United India Insurance Company Ltd.) 34:- “Undoubtedly, Section 166 of the MVA deals with “just compensation” and even if in the pleadings no specific claim was made under Section 166 of the MVA, in our considered opinion a party should not be deprived from getting “just compensation” in case the claimant is able to make out a case under any provision of law. Needless to say, the MVA is beneficial and welfare legislation. In fact, the Court is duty-bound and entitled to award “just compensation” irrespective of the fact whether any plea in that behalf was raised by the claimant or not and Para 35:- “However whether or not the claimants would be governed by the terms and conditions of the insurance policy and whether or not 16 the provisions of Section 147 of the MVA would be applicable in the present case and also whether or not there was rash and negligent driving on the part of the deceased, are essential a matter of fact which was required to be considered and answered at least by the High Court. While entertaining the appeal, no effort was made by the High Court to deal with the aforesaid issues, and therefore, we are of the considered opinion that the present case should be remanded back to the High Court to give its decision on the aforesaid issue” and Para 36:- High Court was required to consider the aforesaid issues even if it found that the provision of Section 163-A of the MVA was not applicable, to the facts and circumstances of the present case. Since all the aforesaid issues are purely questions of fact, we do not propose to deal with these issues and we send the matter back to the High Court for dealing with the said issue and to render its decision in accordance with law. 17. Hence from the various decision of the Apex Court as cited and discussed above, the legal principle emerges that the heir of the owner of the motorcycle cannot maintain a claim under Section 163A 17 of the Motor Vehicles Act, if the policy is only an act policy, with regard of death of owner of the motorcycle in an accident while driving the vehicle. But if the policy in addition to act policy cover the risk of owner and for covering the risk of owner an additional premium is paid covering the risk of owner then the Tribunal is required to go into the question whether a claim is maintainable under Section 166 of the Motor Vehicles Act, 1988, as a just compensation is required to be paid and to go into the policy condition whether the policy cover the risk of the deceased and in case of owner whether the additional premium has been paid. 18. However, under the present facts and circumstances of the case, taking into consideration that the deceased was the owner and driver of the vehicle and hence he was not a third party and hence any claim under Section 163A of the Motor Vehicles Act, 1988, is not maintainable. The Tribunal held that since the deceased was driving the vehicle at the time of accident hence entitle to claim relying on decision reported in 1997 (1) P.L.J.R. 827 (supra), where claim given to a driver of motorcycle under Workman Compensation Act, which 18 apparently is not applicable and hence finding recorded by the Tribunal is not sustainable by law and hence is hereby set aside. 19. However, the question remains whether a claim under Section 166 of the Motor Vehicles Act, 1988, is maintainable or not. The further question whether policy covered the claim of the owner of the vehicle and whether extra premium paid for covering the risk of the owner. The question for consideration also whether the accident took place due to rash and negligence driving of the vehicle. However, the Tribunal did not go into these issues nor framed any issue either on policy condition or on negligence of driver but illegally held that the claim is under Section 163 A of the Motor Vehicles Act, 1988, and hence it is not required to go into the question, whether there was negligence on the part of the deceased. 20. However, as discussed above since the claim under Section 163A of the Motor Vehicles Act, 1988, is not maintainable to the deceased who was the owner of the vehicle and hence for maintaining the claim under Section 166 of the Motor Vehicles Act, 1988, it is 19 required to go into the question, whether accident took place due to rash and negligence driving of the vehicle by owner, and the further whether the deceased was covered under the policy, and hence the two issues whether the accident took place due to rash and negligence driving of the deceased and whether the deceased was covered under the policy. 21. Hence, the judgment and award of the Tribunal is hereby set aside and the case is remanded back to consider afresh after framing the issues whether occurrence took place due to negligence on the part of driver and whether policy covers the risk of owner. Both the appeals are accordingly disposed of. Safik (Gopal Prasad, J.)