FAO No.5657 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.5657 of 2009 ( in MACT No.92 of 2008) Date of decision: 26.11.2011 Oriental Insurance Company ....Appellant Versus Charanjit Kaur and another ...Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr.Vinod Chaudhri, Advocate for the appellant None for the respondents. ***** Jitendra Chauhan, J.(Oral) The present appeal is directed against the award dated 12.8.2009, passed by the learned Motor Accident Claims Tribunal, (Fast Track Court), Fatehgarh Sahib, whereby a sum of ` 4,65,000/- was awarded in favour of the LRs of the deceased Dharminder Singh. The brief facts giving rise to the case are that on 27.4.2008, Dharminder (since deceased) was coming from village Manakpur towards village Biromajri on a motorcycle bearing registration No.PB23-F-8608. When he came out from the bus stand, suddenly a dog came in front of his motorcycle and to save the dog, his motorcycle hit the wall of the shop. As a result of the collision with the wall, he suffered grievous and multiple FAO No.5657 of 2009 2 injuries. When he was being rushed to the hospital, he died on the way. In this regard a DDR No.12 dated 28.4.2008 was lodged under Section 174 of the Code of Criminal Procedure. The claimant-mother filed a claim petition under Section 163-A of the Motor Vehicles Act, which was allowed by the learned Tribunal and the Insurance Company was held liable to pay the entire amount of compensation. Learned counsel for the appellant contends that the claim under Section 163-A of the Motor Vehicles Act (for short 'the Act') is not meant to give the benefit to the tort feaser. The loss suffered by the second party in MACT claims must be a third party but in the present case, it is the mother, who came before the Tribunal to claim compensation against her husband. He further contends that the claim petition filed by the claimant- mother did not fall within the ambit of Section 163-A of the Act. It is further asserted that the claim is malafide, which is apart from the fact that earlier the claimant disclosed the income of the deceased as `8000/- per month and later on, it was reduced to ` 2000/- p.m. to bring the claim petition within the scope of Section 163-A of the Act. The claim petition was filed by the mother of the deceased in connivance with her husband to cause wrongful loss to the appellant. I have heard learned counsel for the appellant and perused the case file. From perusal of the case file, it is established that the deceased was the son of the claimant and respondent No.2, husband of the claimant. Earlier in the claim petition, the income of the deceased was disclosed to be `8000/- p.m., which was subsequently, reduced to `2000/- p.m. to change FAO No.5657 of 2009 3 the nature and complex of the claim petition, so as to bring the same within the ambit of Section 163-A of the Act. It is amply proved on record that the deceased was at fault and Section 163-A of the Act is not meant to extend the benefit to the tort feaser. The party, who suffered loss in the MACT claims must be the third party, whereas in the present case, the mother has filed the claim petition against her husband, who is the registered owner of the motorcycle. The Hon'ble Supreme Court in Ningamma and another vs. United India Insurance Co. Ltd. 2009 ACJ, 2020, held in paras No.13, 18, 19, 20, as under:- 13. In the light of the aforesaid submissions, the question that falls for our consideration is whether the legal representatives of a person, who was driving a motor vehicle, after borrowing it from the real owner meets with an accident without involving any other vehicle, would be entitled to compensation under Section 163-A of MVA or under any other provision(s) of law and also whether the insurer who issued the insurance policy would be bound to indemnify the deceased or his legal representative? Before dwelling further, it would be useful to discuss the relevant paras of Section 163-A and 166 of the MVA applicable in the present case. “163-A. Special provisions as to payment of compensation on structured formula basis.— (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument FAO No.5657 of 2009 4 having the force of law, the owner of the motor vehicle of the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. xx xx xx (2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.” 166. Application for compensation- (1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made- (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as FAO No.5657 of 2009 5 the case may be: Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application. Xx xx xx 18. In the case of Oriental Insurance Company Ltd. v. Rajni Devi and Others, (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 liability under section 163-A of the MVA is on the owner of the vehicle. So a person cannot be FAO No.5657 of 2009 6 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 authorised to drive the said vehicle by its owner, and therefore, he would step into the shoes of the owner of the motorbike. 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 FAO No.5657 of 2009 7 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. 20. When we apply the said principle into the facts of the present case we are of the view that the claimants were not entitled to claim compensation under Section 163-A of the MVA and to that extent the High Court was justified in coming to the conclusion that the said provision is not applicable to the facts and circumstances of the present case. However, the question remains as to whether an application for demand of compensation could have been made by the legal representatives of the deceased as provided in Section 166 of the MVA. The said provision specifically provides that an application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made by the person who has sustained the injury; or by the owner of the property; or where death has resulted from the accident, by all or any of the legal representatives of the deceased; or by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be. When an application of the aforesaid nature claiming compensation under the provisions of Section 166 is received, the Tribunal is required to hold an enquiry into the claim and then proceed to make an award which, however, would be subject to the provisions of Section 162, by determining the amount of FAO No.5657 of 2009 8 compensation, which is found to be just. Person or persons who made claim for compensation would thereafter be paid such amount. When such a claim is made by the legal representatives of the deceased, it has to be proved that the deceased was not himself responsible for the accident by his rash and negligent driving. It would also be necessary to prove that the deceased would be covered under the policy so as to make the insurance company liable to make the payment to the heirs. In this context reference could be made to relevant paras of Section 147 of the MVA which reads as follows:- 147. Requirements of policies and limits of liability- (1) In order to comply with the requirement of this Chapter, a policy of insurance must be a policy which- (a) is issued by a person who is an authorised insurer; or (b) insurer the person or classes of persons specified in the policy to the extent specified in sub-section (2)- (i) against any liability which may be incurred by him in respect of the death of or bodily [injury to any person, including owner of the goods or his authorised 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 a public place; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the FAO No.5657 of 2009 9 use of the vehicle in a public place: Provided that a policy shall not be required- (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen’s Compensation Act, 1923 (8 of 1923) in respect of his death of, or bodily injury to, any such employee- (a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or (c) if its is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability. Xx xx xx (2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:- (a) save as provided in clause (b), the amount of liability incurred; (b) in respect of damage to any property of a third party, a limit of rupees six thousand: Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of FAO No.5657 of 2009 10 this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier. Xx xx xx (5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.” The Hon'ble Supreme Court in para No.24 of the said judgment further held as under:- “There are indeed cases like New India Assurance Company Limited vs. Sadanand Mukhi and Others, (2009) 2 SCC 417, wherein, the son of the owner was driving the vehicle, who died in the accident, was not regarded as third party. In the said case the court held that neither Section 163-A nor Section 166 would be applicable.” Reverting back to the instant case, the claim petition was filed by the mother of the deceased against her husband, who is the owner of the motorcycle. Therefore, in view of the above cited law, Dharminder Singh deceased son- driver stepped into the shoes of the father and the impugned award dated 12.8.2009 is modified to the extent that the appellant- Oriental Insurance Company is not liable to pay the compensation. FAO No.5657 of 2009 11 Accordingly, the present appeal is allowed. This case is squarely covered by Ningamma and another's case (supra) and this court is reluctant to deviate from the principles laid down by the Hon'ble Supreme Court. The appellant is given recovery rights to recover the amount of compensation from respondent No.2, who is the owner of the alleged motorcycle, if the amount is already paid by the Insurance Company. 26.11.2011 (JITENDRA CHAUHAN) gsv JUDGE