FAO No. 3820 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 3820 of 2010 (O&M) (in MACT case No. 101 of 2008) Date of decision: 31.10.2011 1.FAO No.3820 of 2010 New India Assurance Co.Ltd. Appellant v. Roshini Devi and Others Respondents 2. FAO No.3821 of 2010 (in MACT case No. 109 of 2008) New India Assurance Co.Ltd. Appellant v. Kamla Devi Devi and Others Respondents 3. FAO No. 3822 of 2010 ( in MACT case No. 108 of 2008) New India Assurance Co.Ltd. Appellant v. Renu and Others Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr. Paul S.Saini, Advocate for the appellant Mr.Ashit Malik,Advocate for the respondents .... JITENDRA CHAUHAN, J. C.M.Nos. 16423-24, 16427-29 and 16430-32 of 2010 C.Ms are allowed. For the reasons mentioned in the applications, delay in filing the above appeals is condoned, subject to all just exceptions. FAO No. 3820 of 2010 (O&M) 2 Main Appeal FAO No. 3820 of 2010 This judgment of mine shall dispose of three appeals filed by the appellant-Insurance Company arising out of the common Award dated 3.2.2010 passed by the Motor Accident Claims Tribunal, Jind (for short the Tribunal). The claimants Smt.Roshini and others filed the claim petitions (MACT No. 101 of 27.11.2008); Smt.Kamla and others (MACT No. 109 of 7.11.2008) and Smt. Renu and others (MACT No. 108 of 7.11.2009) under section 163 of the Motor Vehicles Act, 1988 (hereinafter referred to as the MV Act) before the Ld. Tribunal for grant of compensation on account of the death of Ramesh Kumar, Sandeep and Manoj Kumar in an accident allegedly occurred on 20.9.2008. Brief facts of the case are that on 20.9.2008, the deceased Sandeep Kumar, Manoj Kumar, Ramesh Kumar and Sandeep Kumar son of Mukhtiar Singh were traveling in a car bearing registration No. HR-29J- 8442. They were coming from Meham to Village Lajwana Kalan, District Jind. The journey was started at 11.30 p.m. Ramesh Kumar was on the driving seat. When they reached near Village Devrar turn, the driver of the car lost control over the same, as a result the car plunged into a pond. However, door of the car opened up and Sandeep Kumar son of Mukhtiar Singh escaped. He raised alarm. The car was taken out of the pond. Ramesh Kumar, Sandeep son of Suraj Mal and Manoj Kumar were found dead as a result of the accident. On the statement of Sandeep Kumar son of Mukhtiar Singh, DDR No. 13 dated 21.9.2008 was recorded at P.S. Julana. It was stated that monthly income of deceased Sandeep Kumar was Rs. 3000/-p.m; that of Ramesh Kumar was Rs. 3200/- per month and of Manoj FAO No. 3820 of 2010 (O&M) 3 Kumar Rs. 3000/-p.m. The claimants being the dependents of the deceased, filed three separate claim petitions claiming compensation from Surinder son of Baldeva, owner of the car. Upon notice, respondent No.1, the owner of the car did not appear before the Tribunal and he was proceeded against ex-parte. Respondent No.2, The New India Assurance Company filed the written statement. It was pleaded that no such accident had taken place; the claim petitions were filed in collusion with the owner of the vehicle and the Insurance Policy being an Act policy does not cover the risk of passengers traveling in the car. It was alleged that the deceased were not traveling in the car at the time of accident and they had died due to drowning and no road side accident, as alleged by the claimants, has occurred. From the pleadings of the parties, the following issues ssues were framed:- 1. Whether Sandeep, Ramesh Kumar and Manoj Kumar lost their lives while traveling in Indica car No. HR-29J-8442 driven by Ramesh Kumar since deceased as alleged in the petition? OPP 2. If issue No. 1 is proved in affirmative, what amount of compensation the petitioners are entitled and from whom?OPP 3. Relief.” While deciding Issue No.1, the Ld. Tribunal, after appreciating the evidence produced on record, observed as under :- “8. This is a petition under section 163-A of the Motor Vehicle Act. In this petition rash and negligent driving of driver FAO No. 3820 of 2010 (O&M) 4 of offending vehicle is not required to be proved. The petitioners are required to prove only:- (i)That the accident took place by the use of motor vehicle; and (ii) death in this accident 9. Now in order to prove that the accident took place by the use of motor vehicle the petitioners have examined Sandeep Kumar son of Mukhtiar Singh purported to be an eye witness. He deposed that on 20.9.2008 he had gone to Rohtak for purchase of spare parts. On that day he and his friends Sandeep, Ramesh and Manoj started their journey from Meham for their village Lijwana at about 11.30 p.m on 20.9.2008. Ramesh Kumar was driving the car at norma speed. When they reached near the turn of Village Devrad, Ramesh Kumar lost control over the car and the car plunged into a pond. He fell down from the door which got opened due to suddern jerk and all the three persons namely Sandeep Kumar, Manoj Kumar and driver Ramesh Kumar died in the car. He raised alarm. Many persons reached at the spot and the car was pulled out from the pond with the help of tractors. In order to prove the involvement of the car being registration No. HR-29J-8442 the petitioners have examined ASI Om Parkash as PW5, who brought the original DDR register and proved Ex.P1 the copy of DDR No. 13 of 21.9.2008. A perusal of copy of DDR FAO No. 3820 of 2010 (O&M) 5 Ex.P1 reveals that the accident took place at about 11.45 p.m on 20.9.2008 and the DDR was lodged on 21.9.2008. DDR was lodged on the statement of Sandeep son of Mukhtiar Singh. From the DDR itself it is proved that the Sandeep, Manoj and Ramesh died due to involvement of car bearing registration No. HR-29J- 8442. 10. Moreover, the owner of the car did not step into the witness box to deny the involvement of car bearing No. HR-29J-8442 and lodging of false DDR. The argument of learned counsel for the respondent that the driver of the vehicle has been falsely implicated has no force. In case the accident had not taken place as alleged by the petitioners, the respondent No.1 being the driver and owner could have made a complaint to the police officers of the concerned police stations and in case they were not ready to hear them they could approach the higher authorities that they have been falsely implicated in a criminal case with regard to the accident. However, they did not do so and kept mum. Mere silence is sufficient to show that the alleged accident took place in the manner as alleged by the petitioner. Even the respondents did not bother to step into the witness box themselves. On this point, reliance is placed upon Sudama Devi and Others v. Kewal Ram and Others 2008 (2) RCR Civil 72 (P&H). To prove the FAO No. 3820 of 2010 (O&M) 6 false implication of the offending vehicle and respondent No.1, the respondent could have examined himself but the respondent did not bother to examine himself or any witness to rebut the claim of the petitioners. Thus, the involvement of vehicle bearing registration No. HR-29J-8442 stands proved. 11. In order to prove the death of Sandeep, Ramesh and Manoj in road side accident there are copies of PMRs. A perusal of PMRs Ex. PW6/B of Sandeep, Ex. PW6/C of Ramesh and Ex.PW6/D of Manoj reveal that they died in a road side accident. This fact corroborates the averment made in the petition. A perusal of the post mortem reports further reveals that the cause of death was due to asphyxia as a result of drowning. Thus, from the post mortem reports coupled with the statements of witnesses sit stands duly proved that Ramesh, Sandeep and Manoj died due to drowning as the car in which they were traveling plunged into a pond and this issue is decided in favour of the petitioners.” While deciding Issue No.2, the Ld. Tribunal applying the guidelines framed in Sarla Verma (Smt.) and Others v. Delhi Transport Corporation and Anr. 2009 (6) SCC 121 awarded compensation to the claimants in the following manner:- i) Rs. 2,67,000/- to all the claimants of MACT claim petition No. 101 of 2008; Smt. Roshni and others FAO No. 3820 of 2010 (O&M) 7 ii )Rs. 2,67,000/- to all the claimants of MACT claim petition No. 109 of 2008; Smt. Kamla and others iii ) Rs. 4,52,000/- to all the claimants of MACT claim petition No. 108 of 2008; Smt. Renu and others The Ld. Tribunal further observed that the respondent Nos. 1 & 2 are jointly and severally liable to pay the amount of compensation to the claimants. Aggrieved against the findings of the Ld. Tribunal, the Insurance Company has preferred these three separate appeals. Learned counsel for the appellant-Insurance Company submitted that the Insurance Company cannot be fastened with the liability to pay compensation to the respondents-claimants, as the alleged accident, had occurred due to the negligence of the driver-Ramesh Kumar. He further stated that the respondents-claimants have filed claim petitions under section 163-A of the MV Act in connivance with the owner of the car, with ill founded motive to get compensation from the Insurance Company for the insured vehicle, which was not at all involved in the accident. He submitted that had the alleged car been drowned in the pond and as per the assertions of the claimants, and had the same been taken out of the pond with the help of Tractor by the villagers, there must have been some evidence on record to show that the accident had occurred and the claimants must have joined and examined some independent witness. He further submitted that there is no evidence on record to show that the car was damaged in the accident and the deceased have received any injuries. In the post mortem reports of the deceased Ramesh Kumar, Manoj and Sandeep, the cause of death shown was “asphyxia”. The owner of the car did not choose to appear and was FAO No. 3820 of 2010 (O&M) 8 proceeded against ex-parte in order to avoid his liability. He further submitted that the insured has not claimed any damages for the car from the Insurance Company. He contended that the car was insured with the Insurance Company under an Act Policy which covers the risks to third parties only. In the policy, the occupants of the vehicles are not covered as no premium was charged or paid for personal accident insurance benefit to the owner-cum-driver of the vehicle. Therefore, the Insurance Company cannot be saddled with any liability for which no cover is obtained under the Policy. In support of his submissions, he placed reliance in “Ram Mehar v. Bimla Devi, 2010 ACJ 2769; “Divisional Controller, Chief Custodian Of Internal Insurance Fund v. K.C.Roopa, 2010 ACJ 438. He submitted that the legal heirs of Ramesh Kumar, who was driving the alleged vehicle at the time of alleged accident are not entitled to claim compensation from the Insurance Company as the Policy is an Act Policy, and it covers the risk of third parties only. There was no relationship of employee-employer between the insured and Ramesh Kumar. He submitted that the car belonged to Surinder who left it at the workshop of Sandeep Kumar for repairs. The said Sandeep Kumar further gave the car to Ramesh Kumar for driving from Meham to village Lajwana Kalan and the accident occurred on 20.9.2008. It was negligent on the part of Ramesh Kumar who lost control over the vehicle and the car drowned in the pond, as a result the three occupants ( including the driver) had died. He thus asserted that the legal heirs of Ramesh Kumar are not entitled to any compensation on account of negligent on the part of Ramesh Kumar and without the involvement of any other vehicle in the accident. In support of his submissions, he placed reliance on Ningamma and Anr. v. United India Insurance Co. Ltd. 2009 FAO No. 3820 of 2010 (O&M) 9 ACJ 2020; “ New India Insurance Co. Ltd. vs Sadanand Mukhi and Ors, 2009 ACJ 998”. Lastly the learned counsel submitted that the Insurance Company deserves to be absolved of the liability to pay compensation to the claimants. On the other hand, learned counsel for the respondents- claimants submitted that the Ld. Tribunal has rightly passed the Award dated 3.2.1210 and awarded compensation to the claimants in their respective claim petitions. The Ld. Tribunal has rightly held liable respondents No.1 and 2, owner and the Insurance Company to pay the amount of compensation. I have considered the submission of learned counsel for the parties and gone through the file. A perusal of the record shows that the claimants have pleaded in their claim petitions that the accident occurred on 20.9.2008 at 11.45 p.m. when Ramesh Kumar, alongwith Sandeep son of Mukhtiar Singh, Sandeep son of Suraj Mal and Manoj were returning from Meham to Village Lajwana Kalan. Ramesh Kumar was on the steering and he lost control over the vehicle which landed into the pond, as a result the three occupants of the car died due to drowning. Sandeep Kumar son of Mukhtiar Singh, who was also in the said car, escaped when door of the car opened up due to which he fell out of the car. He was an eye witness to the accident. It was the further case of the claimants that the car and occupants were taken out of the pond with the help of tractors and the villagers. The DDR was got recorded on the next day i.e on 21.9.2008 on the statement of Sandeep Kumar, who escaped in the alleged accident. The owner of the car and the Insurance Company were arrayed as respondents. FAO No. 3820 of 2010 (O&M) 10 There is no evidence on the record to rebut the version of the claimants except for the statement of Sandeep Kumar, who allegedly escaped in that accident. No independent witness from the village has been examined to prove that on 20.9.2008, the car with three occupants fell in the village pond and the villagers with the help of tractors took the car out of the pond . Only statement of ASI Om Parkash, Pw5 is on the record to show that the accident had occurred on the date, time and manner indicated above. Even the owner of the car, respondent No.1 abstained himself from court proceedings to avoid his liability to pay the compensation to the claimants. Otherwise, he would be the best witness to prove that actually the accident had occurred and three persons lost their lives and the car involved in the alleged accident belonged to him and he gave the car for repairs to Sandeep Kumar, who further gave it to Ramesh Kumar. He has not claimed any damages of the car involved in the alleged accident, when the vehicle was insured with the Insurance Company. The point to be determined in these appeals is whether the risk of the passengers traveling in the car is covered under an Act Policy ? To answer this preposition, this Court has gone through the Insurance Policy Ex/R-1. A perusal of the policy shows that the vehicle in question was insured under an Act Policy which covers the risk of the third parties. A premium of Rs. 825/- was paid by the Insured for covering the risk to third parties and no premium, whatsoever, was paid under the policy for covering any other risk. The occupants of the car were not covered under the terms and conditions of the policy being an Act Policy. As the additional premium to cover additional risk has not been paid, FAO No. 3820 of 2010 (O&M) 11 therefore, the insurance company can not be held liable to idemnify the award. Similar proposition has been settled by Hon'ble the Apex Court in New India Assurance Co.Ltd. v. Sadanand Mukhi and Others, 2009 ACJ 998. In paras 14 and 20, it was observed as under:- “14. It is not a case where even section 163-A of the Act was resorted to. Respondents filed an application under section 166 of the Act. Only an Act Policy was taken in respect of the motor vehicle. Submission of the learned counsel that being a two-wheeler, the vehicle was more prone to accident and, therefore, whosoever becomes victim of an accident arising out of the use thereof would come within the purview of the term 'a person' as provided for in section 147 of the Act, in out opinion, is not correct.” 20. In view of the aforementioned authoritative pronouncements, we have no hesitation to hold that insurance company was not liable. The impugned judgment, therefore, cannot be sustained. It is set aside accordingly. The appeal is allowed. No costs.” In view of the above, it can be said that the Insurance Company is not liable to pay the compensation to the claimants in the present case, as no additional premium was paid to the insurer of the vehicle to cover any additional risk. So far as question “whether the legal heirs of Ramesh Kumar, who was driving the car, are entitled to claim compensation from the Insurer of the said vehicle” is to be examined in the light of above settled law on this point. Once it is established that the FAO No. 3820 of 2010 (O&M) 12 person driving the vehicle after borrowing it from the other person met with an accident due to his own rash and negligent driving, his legal representative are not entitled to get compensation under section 163-A of the Act. As observed above, the car in question was given to Ramesh Kumar by Sandeep Kumar. It fell in the pond due to the fault of Ramesh Kumar, who was driving it rashly and negligently. In Ningamma and Anr. v. United India Insurance Co. Ltd. 2009 (4) Recent Apex Judgments, 164, Hon'ble the Apex Court in para 19 observed as under:- “19. We have already extracted Section 163-A of the MVA hereinbefore. A bare perusal of the said provision would make it explicitly clear that persons like the deceased in the present case would step into the shoes of the owner of the vehicle. In a case wherein the victim died or where he was permanently disabled due to an accident arising out of the aforesaid motor vehicle in that event the liability to make payment of the compensation is on the insurance company or the owner, as the case may be as provided under section 163-A. But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to pay the same is on him. This proposition is absolutely clear on a reading of Section 163-A of the MVA. Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under section 163-A of the MVA.” In view of the foregoing discussion, this Court is of the opinion FAO No. 3820 of 2010 (O&M) 13 that in the facts and circumstances of the case in hand, the Insurance Company is cannot be held liable to pay compensation to the claimants. Rajesh Kumar who was driving the car, died due to his own fault and negligence. He was the borrower of the vehicle in question, therefore, the Insurance Company is absolved of the liability as the policy being an Act policy. The observations of the Ld. Tribunal that all the respondents are jointly and severally liable to pay the amount of compensation to the claimants are set aside. The owner is held liable to pay the compensation to the claimants and the Insurance Company is absolved of its liability to pay the compensation to the claimants in the three claim petitions, referred to above. In view of the above, these appeals ( FAO Nos. 3820 to 3822 of 2010) are allowed. The Award of the Ld. Tribunal is modified to that extent. ( JITENDRA CHAUHAN) 31.10.2011 JUDGE MS