RAMKHILADI & ANR.

THE UNITED INDIA INSURANCE COMPANY & ANR.

(Civil Appeal No. 9393 of 2019)

JANUARY 07, 2020

[ASHOK BHUSHAN AND M. R. SHAH, JJ.]

Motor Vehicles Act, 1988 - s. 163A - Claim under - Victim was travelling on a motorcycle and met an accident - Victim died - As per claimants, the accident occurred on account of rash and negligent driving of the driver of another motorcycle - Claim Petition u/s. 163A of the Act filed by the appellants against the owner of the vehicle on which victim/deceased was travelling and its insurance company - Neither the driver nor the owner or the insurance company of another motorcycle were joined as opponents in the claim petition - Tribunal held insurance company liable to pay compensation of Rs. 3,67,000/- u/s. 163A of the Act - The High Court set aside the Judgment and award passed by the Tribunal and dismissed the claim petition - On appeal, held: There was no specific finding whether the deceased-driver was in employment of the opponent-owner or not - Even otherwise, no evidence was led by the claimants to prove that the deceased-driver was in employment of the opponent-owner - Under the circumstances, the deceaseddriver cannot be said to be in employment of the opponent-owner and therefore, can be said to be permissible user and/or borrower of the motor vehicle - Applying the law laid down by the Supreme Court in the case of Ningamma v. United India Insurance Co. Ltd and as the deceased-driver had stepped into the shoes of the owner of the vehicle, as rightly held by the High Court the claim petition u/s. 163A of the Act against the owner and insurance company of the vehicle, borrowed by the deceased, shall not be maintainable - Further, liability of the insurance company would be as per the terms and conditions of the contract of insurance - And as per the contract of insurance, in case of personal accident the owner-driver is entitled to a sum of Rs. 1 lakh - Therefore, the deceased, who would be in the shoes of the owner shall be entitled to a sum of Rs. 1 lakh, as per the contract of insurance.

[2020] 1 S.C.R. 19

SUPREME COURT REPORTS


Partly allowing the appeal, the Court

HELD : 1. While answering the finding recorded by the Tribunal on Issue No. 2 i.e. whether the driver was driving the said vehicle being in the employment of vehicle owner opposite party No. 1 in his interest or with his permission/knowledge? it appears that, as such, the Tribunal has not at all answered the aforesaid issue. While answering Issue No. 2, there is no specific finding whether the deceased-driver was in employment of the opponent-owner or not. Even otherwise, no evidence is led by the claimants to prove that the deceased-driver was in employment of the opponent-owner. Despite the above, while answering Issue No. 4 there is some observation made by the Tribunal that the deceased-driver was in employment of the opponent-owner, which is not supported by any evidence on record. Under the circumstances, the deceased-driver cannot be said to be in employment of the opponent-owner and, therefore, he can be said to be permissible user and/or borrower of motor vehicle owned by the opponent-owner. With these findings, the main question posed for consideration of this Court referred to hereinabove is required to be considered. [Paras 2.1 and 5.3] [32-B-D]

2. An identical question came to be considered by this Court in the case of Ningamma, In that case, the deceased was driving a motorcycle which was borrowed from its real owner and met with an accident by dashing against a bullock cart i.e. without involving any other vehicle. The claim petition was filed under Section 163A of the Act by the legal representatives of the deceased against the real owner of the motorcycle which was being driven by the deceased. To that, this Court has observed and held that since the deceased has stepped into the shoes of the owner of the vehicle, Section 163A of the Act cannot apply wherein the owner of the vehicle himself is involved.

Consequently, it was held that the legal representatives of the deceased could not have claimed the compensation under Section 163A of the Act. Therefore, as such, in the present case, the claimants could have even claimed the compensation and/or filed the claim petition under Section 163A of the Act against the driver,

owner and insurance company of the offending vehicle i.e. another motorcycle being a third party with respect to the offending vehicle. However, no claim under Section 163A was filed against the driver, owner and/or insurance company of that offending motorcycle. It is an admitted position that the claim under Section 163A of the Act was only against the owner and the insurance company of the motorcycle which was borrowed by the deceased from the opponent-owner. Therefore, applying the law laid down by this Court in the case of Ningamma, and as the deceased has stepped into the shoes of the owner of the vehicle, which was borrowed, as rightly held by the High Court, the claim petition under Section 163A of the Act against the owner and insurance company of the said vehicle shall not be maintainable. [Para 5.4]

[32-E-H; 33-A-B]

3. It is true that, in a claim under Section 163A of the Act, there is no need for the claimants to plead or establish the negligence and/or that the death in respect of which the claim petition is sought to be established was due to wrongful act, neglect or default of the owner of the vehicle concerned. It is also true that the claim petition under Section 163A of the Act is based on the principle of no fault liability. However, at the same time, the deceased has to be a third party and cannot maintain a claim under Section 163A of the Act against the owner/insurer of the vehicle which is borrowed by him as he will be in the shoes of the owner and he cannot maintain a claim under Section 163A of the Act against the owner and insurer of the vehicle. In the present case, the parties are governed by the contract of insurance and under the contract of insurance the liability of the insurance company would be qua third party only. In the present case, the deceased cannot be said to be a third party with respect to the insured vehicle. There cannot be any dispute that the liability of the insurance company would be as per the terms and conditions of the contract of insurance. As held by this Court in the case of Dhanraj, an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorized 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.

RAMKHILADI v. THE UNITED INDIA INSURANCE COMPANY


In the said decision, it is further held by this Court that Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle. [Para 5.5]

[33-C-G]

4. In view of the above and for the reasons stated above, in the present case, as the claim under Section 163A of the Act was made only against the owner and insurance company of the vehicle which was being driven by the deceased himself as borrower of the vehicle from the owner of the vehicle and he would be in the shoes of the owner, the High Court has rightly observed and held that such a claim was not maintainable and the claimants ought to have joined and/or ought to have made the claim under Section 163A of the Act against the driver, owner and/or the insurance company of the another offending vehicle being a third party to the said vehicle. [Para 5.6] [33-H; 34-A-B]

Ningamma v. United India Insurance Co. Ltd. (2009) 13 SCC 710 : [2009] 8 SCR 683 - relied on.

Naveen Kumar v. Vijay Kumar (2018) 3 SCC 1 : [2018] 2 SCR 572 - held inapplicable.

Reshma Kumari v. Madan Mohan (2013) 9 SCC 65 : [2013] 2 SCR 706 ; Jitender Trivedi v. Kasam Daud

(2015) 4 SCC 237 : [2015] 2 SCR 120 ; New India Assurance Co. Ltd. v. Sadanand Mukhi (2009) 2 SCC 417 : [2008] 17 SCR 1313 ; Dhanraj v. New India Assurance Co. Ltd. (2004) 8 SCC 553 : [2004] 4 Suppl.

SCR 711 ; Oriental Insurance Co. Ltd. v. Rajni Devi

(2008) 5 SCC 736 : [2008] 6 SCR 822 ; National Insurance Co. Ltd. v. Ashalata Bhowmik (2018) 9 SCC 801 : [2018] 10 SCR 871 ; Oriental Insurance Co. Ltd.

v. Jhuma Saha (2007) 9 SCC 263 : [2007] 1 SCR 979 ; National Insurance Co. Ltd. v. Laxmi Narain Dhut

(2007) 3 SCC 700 : [2007] 3 SCR 579 ; Premkumari

v. Prahlad Dev (2008) 3 SCC 193 : [2008] 1 SCR 874 - referred to.

Case Law reference

[2013] 2 SCR 706 referred to Para 3.2

[2018] 2 SCR 572 held inapplicable Para 3.3

[2015] 2 SCR 120 referred to Para 3.7

[2009] 8 SCR 683 relied on Para 4.1

[2008] 17 SCR 1313 referred to Para 4.1

[2004] 4 Suppl. SCR 711 referred to Para 4.1

[2008] 6 SCR 822 referred to Para 4.2

[2018] 10 SCR 871 referred to Para 4.3

[2007] 1 SCR 979 referred to Para 5.8

[2007] 3 SCR 579 referred to Para 5.8

[2008] 1 SCR 874 referred to Para 5.8

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9393 of 2019.

From the Judgment and Order dated 10.05.2018 of the High Court of Judicature for Rajasthan, Jaipur Bench, Jaipur in S.B. Civil Misc.

Appeal No. 2614 of 2009.

Abhishek Gupta, Adv. for the Appellants.

Amit Kumar Singh, Mrs. K. Enatoli Sema, Gaurav Prakash, Akshay Sharma, Advs. for the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned Judgment and Order dated 10.05.2018 passed by the High Court of Judicature for Rajasthan at Jaipur in SBCMA No. 2614 of 2009, by which the High Court has allowed the said appeal preferred by the respondent-insurance company by quashing and setting aside the Judgment and Award passed by the learned Motor Accident Claims Tribunal and consequently has dismissed the claim petition preferred by the original claimants, the original claimants have preferred the present appeal.

RAMKHILADI v. THE UNITED INDIA INSURANCE COMPANY


2. The facts leading to the present appeal in nutshell are as under:

2.1 That in a vehicular accident which occurred on 02.10.2006, one Chotelal alias Shivram died. The deceased was travelling on motorcycle bearing registration No. RJ 02 SA 7811. At this stage, it is required to be noted that, even as per the claimants, the accident occurred on account of rash and negligent driving of the driver of another motorcycle bearing registration No. RJ 29 2M 9223. That the appellants herein filed a claim petition before the Motor Accident Claims Tribunal, Laxmangarh (Alwar), Rajasthan (hereinafter referred to as the learned Tribunal) under Section 163A of the Motor Vehicles Act (hereinafter referred to as the Act). At this stage, it is required to be noted that the claim petition was preferred only against the owner of the motorcycle bearing registration No. RJ 02 SA 7811 and its insurance company. Neither the driver nor the owner or the insurance company of the vehicle bearing registration No. RJ 29 2M 9223 were joined as opponents in the claim petition. Therefore, as such, no claim petition was filed against the driver, owner and the insurance company of the vehicle involved in the accident i.e. motorcycle bearing registration No. RJ 29 2M 9223. That an objection was raised by the respondent-insurance company-insurer of motorcycle bearing registration No. RJ 02 SA 7811 that as according to the claimants and even so stated in the FIR, the driver of the motorcycle bearing registration No. RJ 29 2M 9223 was rash and negligent and the claimants have not filed the claim petition against the owner of the said vehicle, the claim petition is required to be dismissed against the insurance company of the motorcycle bearing registration No. RJ 02 SA 7811. The learned Tribunal framed the following issues:

Whether accident was caused on 02.10.2006 by driver Chhotelal alias Shivram driving Motorcycle RJ 02 SA 7811 vehicle in question in rash and negligent manner?

Whether the driver was driving the said vehicle being in the employment of vehicle owner opposite party No. 1 Bhagwan Sahay in his interest or with his permission/ knowledge?

Consequent to occurring death of Chhotelal alias Shivram

(driver) in the alleged accident, how much valid amount and in what manner, the applicants are entitled to get and from which opposite parties?

Whether the objections raised in the preliminary/specific statements are significant, if yes then its effect?

Relief?

2.2 On appreciation of evidence, the learned Tribunal answered Issue Nos. 1 and 2 in favour of the claimants and held that the death of the deceased Chotelal alias Shivram had occurred from the motorcycle involved in the accident and the said motorcycle was insured with the respondent-insurance company, the insurance company is liable to pay the compensation under Section 163A of the Act. Consequently, by the Judgment and Award dated 24.02.2009, the learned Tribunal partly allowed the said claim petition and awarded a total sum of Rs.3,67,000/ -as compensation along with the interest @ 6% per annum from the date of filing of the claim petition till the date of the actual payment

2.3 Feeling aggrieved and dissatisfied with the Judgment and Award passed by the learned Tribunal holding the insurance company of the motorcycle bearing registration No. RJ 02 SA 7811 liable to pay the compensation, the respondent-insurance company-insurer of motorcycle bearing registration No. RJ 02 SA 7811 preferred an appeal before the High Court. That, by the impugned Judgment and Order, the High Court has allowed the said appeal and has quashed and set aside the Judgment and Award passed by the learned Tribunal and consequently has dismissed the claim petition on the ground that even as per the informant Vikram Singh, who lodged the FIR, the accident had occurred on account of rash and negligent driving by the driver of motorcycle bearing registration No. RJ 29 2M 9223, however, the claimants have not filed the claim petition against the owner of the said vehicle and in fact, the claim petition should have been filed by the claimants against the owner of vehicle bearing No. RJ 29 2M 9223 to seek compensation.

2.4 Feeling aggrieved and dissatisfied with the impugned Judgment and Order passed by the High Court, the original claimants have preferred the present appeal.

3. Shri Abhishek Gupta, learned advocate appearing on behalf of the appellants-original claimants has vehemently submitted that the High Court has materially erred in dismissing the claim petition solely on the ground that the claimants have not filed the claim petition against the owner of the motorcycle bearing registration No. RJ 29 2M 9223.

RAMKHILADI v. THE UNITED INDIA INSURANCE COMPANY

[M. R. SHAH, J.]


3.1 It is submitted by the learned advocate appearing on behalf of the appellants-original claimants that, as such, the High Court has not properly appreciated the fact that the claim petition preferred by the original claimants was under Section 163A of the Act and, therefore, when the claim petition was preferred under Section 163A of the Act, there is no need for the claimants to plead or establish that the death in respect of which the claim petition has been made was due to any wrongful act or neglect or default of owner of vehicle concerned.

3.2 It is further submitted by the learned advocate appearing on behalf of the appellants-original claimants that the claim petition filed by the original claimants was based on the principle of no-fault liability. It is submitted that the claimants could have elected to file the claim petition either under Section 166 read with Section 140 of the Act against the owner/insurer of offending vehicle i.e. RJ 29 2M 9223 on the basis of the fault liability or under Section 163A either against the owner/insurer of the vehicle being driven by the deceased at the time of accident i.e.

RJ 02 SA 7811 or against the owner/insurer of offending vehicle i.e. RJ 29 2M 9223 on the basis of no-fault liability. It is submitted by the learned advocate appearing on behalf of the appellants-original claimants that, as such, the deceased was not the owner of the vehicle bearing registration No. RJ 02 SA 7811 and in fact and as observed by the learned Tribunal, he was in employment of owner of the vehicle No. RJ 02 SA 7811 and therefore a third party. It is submitted that having elected to prefer the claim under Section 163A of the Act on the principle of nofault liability against the owner/insurer of the vehicle being driver by the deceased at the time of the accident i.e. RJ 02 SA 7811, the claim was perfectly just and maintainable and the learned Tribunal made no error in allowing the same. In support of the above, the learned advocate appearing on behalf of the original claimants has heavily relied upon the decision of this Court in the case of Reshma Kumari v. Madan Mohan

(2013) 9 SCC 65.

3.3 Learned counsel appearing on behalf of the original claimants has further submitted that Section 163A of the Act has to be interpreted in keeping with the intention of the Legislature and the social perspective it seeks to achieve. It is a provision which is beneficial in nature and it has been enacted as a measure of social security. It is submitted that Section 163A of the Act commences with a "non-obstante" clause.

Liability to pay the compensation is on "owner of the motor vehicle" or

"the authorized insurer". It is submitted that the word "owner" has been defined under Section 2(30) to mean "a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase, agreement or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement." It is submitted that having regard to the said definition of "owner", this Court in Naveen Kumar v. Vijay Kumar (2018) 3 SCC 1 has held the registered owner of the vehicle as per the registering authority liable in respect of the offending vehicle despite sale/purchase of vehicle by him. It is submitted that, in paragraph 6, it is held that the person in whose name the motor vehicle stands registered is the owner of the vehicle for the purpose of the Act.

3.4 It is further submitted by the learned counsel appearing on behalf of the appellants-original claimants that for claiming the compensation under Section 163A of the Act, the claimants are only required to prove that the death or permanent disablement is as a result of the accident arising out of the use of motor vehicle and it will cover those who are themselves driving a vehicle, the passengers and also pedestrians. It is submitted that in an application under Section 163A of the Act, fault of the owner of the vehicle or vehicles concerned or of any other person need not be established.

3.5 It is further submitted by the learned counsel appearing on behalf of the appellants-original claimants that, therefore, as the present claim premised on the no-fault liability under Section 163A of the Act by the legal heirs of the deceased, the same was maintainable against the owner and insurer of the motor vehicle which was being driven by him, more particularly, when the deceased was not the owner of the vehicle and that respondent No. 2 was the registered owner of the concerned vehicle and, therefore, the insurance company cannot be absolved from its liability to pay the compensation as awarded by the learned Tribunal.

3.6 Making the above submissions, it is prayed to allow the present appeal and quash and set aside the impugned Judgment and Order passed by the High Court and to restore the Judgment and Award passed by the learned Tribunal holding the owner of the vehicle bearing registration No. RJ 02 SA 7811 and the insurer of the said vehicle to pay the compensation.

RAMKHILADI v. THE UNITED INDIA INSURANCE COMPANY

[M. R. SHAH, J.]


3.7 It is further submitted by the learned counsel appearing on behalf of the appellants-original claimants that, as such, the amount of compensation awarded by the learned Tribunal i.e. Rs.3,67,000/- should be enhanced to Rs.5,00,000/- with interest as awarded by the learned Tribunal in light of the fact that the 2nd Schedule to the Motor Vehicle Act has been amended with effect from 22.05.2018 and a fixed compensation of Rs.5,00,000/- has been specified in the case of death.

It is submitted that this Court has enhanced the compensation even in those cases wherein no appeal for enhancement has been preferred against the order of the Tribunal. In support thereof, the learned counsel appearing on behalf of the original claimants has relied upon the decision of this Court in the case of Jitender Trivedi v. Kasam Daud (2015) 4

SCC 237.

4. The present appeal is vehemently opposed by Shri Amit Kumar Singh, learned advocate appearing on behalf of the respondent-insurance company.

4.1 It is submitted by the learned advocate appearing on behalf of the respondent-insurance company that, in the present case, the deceased borrowed the motorcycle bearing registration No. RJ 02 SA 7811 from the registered owner Bhagwan Sahay. It is submitted that another motorcycle bearing registration No. RJ 29 2M 9223 which was driven in a rash and negligent manner came and hit the motorcycle on which the deceased was travelling. It is submitted that the FIR was lodged against the owner of motorcycle bearing registration No. RJ 29 2M 9223. It is thus clear that the insured vehicle on which the deceased was travelling i.e. RJ 02 SA 7811 was not negligent. It is submitted that, in the present case, the claimants of the deceased filed an application under Section 163A of the Act and sought compensation only from the owner of the insured vehicle i.e. RJ 02 SA 7811. It is submitted that the learned Tribunal without any evidence on record has concluded that the deceased was working under the employment of the registered owner. It is submitted that, therefore, in the facts and circumstances of the case, the High Court has rightly allowed the appeal preferred by the insurer by observing that the claimants ought to have filed the claim petition against the owner of the vehicle bearing registration No. RJ 29 2M 9223. In support of impugned Judgment and Order passed by the High Court, learned advocate appearing on behalf of the insurance company has made the following submissions:

(i) That the deceased was not a third party with respect to the insured vehicle. He was a third party with respect to the motorcycle bearing registration No. RJ 29 2M 9223;

(ii) That the claimants when failed to claim the compensation from the owner of the motorcycle bearing registration No. RJ 29 2M 9223, cannot be permitted, as the driver of the said motorcycle, to claim compensation from the owner of the vehicle bearing registration No. RJ

02 SA 7811;

(iii) That under the Motor Vehicles Act, only the third party claims are payable;

(iv) That in the present case, the deceased was not a third party given that he had borrowed the vehicle from the registered owner Shri Bhagwan Sahay Meena;

(v) That in the case of Ningamma v. United India Insurance Co. Ltd. (2009) 13 SCC 710 and New India Assurance Co. Ltd. V.

Sadanand Mukhi (2009) 2 SCC 417, this Court has held that the owner of the vehicle or his legal representatives or the borrower of the vehicle cannot raise a claim for an accident in which there was no negligence on the part of the insured vehicle. It is submitted that in the aforesaid decisions, this Court has held that the borrower of the vehicle steps into the shoes of the owner and, therefore, the borrower of the vehicle or his legal representatives are not entitled to compensation from the insurer under the Act. It is submitted that the deceased in the present case has stepped into the shoes of the owner and therefore not entitled to any third party compensation from the insured vehicle; and

(vi) That in the case of Dhanraj v. New India Assurance Co.

Ltd. (2004) 8 SCC 553 it is held by this Court that an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorized 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. It is further held that Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle.

4.2 It is further submitted by the learned advocate appearing on behalf of the insurance company that in the present case the contract of insurance specifically provides that in case of personal accident the owner

RAMKHILADI v. THE UNITED INDIA INSURANCE COMPANY

[M. R. SHAH, J.]


cum driver is only entitled to a sum of Rs.1 Lakh. It is submitted that therefore the deceased who had stepped into the shoes of the owner at the most may be entitled to a sum of Rs.1 Lakh only. It is submitted that in the case of Oriental Insurance Co. Ltd. V. Rajni Devi (2008) 5 SCC 736 when the 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 insurance company would depend upon the terms thereof. It is submitted that, in the said decision, this Court did not accept the view taken by the Tribunal that while determining the amount of compensation, the only factor which would be relevant would be merely the use of the motor vehicle. It is submitted that, in the aforesaid decision, in paragraph 11, it is further observed by this Court that the liability under Section 163A of the Act is on the owner of the vehicle as a person cannot be both, a claimant as also a recipient.

4.3 Relying upon the decision of this Court, in the case of National Insurance Co. Ltd. V. Ashalata Bhowmik (2018) 9 SCC 801, it is submitted that the parties shall be governed by the terms and conditions of the contract of insurance. It is submitted that, therefore, at the most, the claimants may be entitled to Rs. 1 lakh only, the deceased being in the shoes of the owner.

4.4 Now, so far as the submission on behalf of the appellantsoriginal claimants that there is an amendment to the 2nd Schedule, and a fixed compensation of Rs.5 lakhs has been specified in the case of death and, therefore, the claimants shall be entitled to Rs.5 lakhs, it is vehemently submitted by the learned advocate appearing on behalf of the insurance company that the said amendment shall not be applicable retrospectively.

It is submitted that, in the present case, the accident had taken place in the year 2006 and even the Judgment and Award was passed by the learned Tribunal in the year 2009, and the impugned Judgment and Order has been passed by the High Court on 18.02.2018, i.e. prior to the amendment in the 2nd Schedule.

4.5 Making the above submissions, it is prayed to dismiss the present appeal and/or partly allow the appeal to the extent of Rs.1 Lakh as per the terms and conditions of the contract of insurance.

5. Heard learned counsel appearing on behalf of the respective parties at length. We have also perused and considered the Judgment

and Award passed by the learned Tribunal as well as the impugned Judgment and Order passed by the High Court and the evidence on record. The short question which is posed for consideration of this Court is whether, in the facts and circumstances of the case and in a case where the driver, owner and the insurance company of another vehicle involved in an accident and whose driver was negligent are not joined as parties to the claim petition, meaning thereby that no claim petition is filed against them and the claim petition is filed only against the owner and the insurance company of another vehicle which was driven by the deceased himself and the deceased being in the shoes of the owner of the vehicle driven by himself, whether the insurance company of the vehicle driven by the deceased himself would be liable to pay the compensation under Section 163A of the Act?; Whether the deceased not being a third party to the vehicle No. RJ 02 SA 7811 being in the shoes of the owner can maintain the claim under Section 163A of the Act from the owner of the said vehicle?

5.1 The learned Tribunal held that even in absence of the driver, owner and the insurance company of another vehicle involved in an accident and whose driver was solely negligent, the application under Section 163A of the Act would be maintainable against the owner and the insurance company of the vehicle which was driven by the deceased himself, firstly on the ground that the deceased was in employment of the owner of the vehicle which was driven by him and secondly, in an application under Section 163A of the Act, the negligence is not required to be established and proved and it is enough to establish and prove that the deceased has died in a vehicular accident and while driving a vehicle.

The High Court has not agreed with the same and by the impugned Judgment and Order has held that as the claimants have not filed the claim petition against the owner of another vehicle whose driver was in fact negligent, even as per the claimants and the claim petition should have been filed by the claimants against the owner of another vehicle to seek the compensation, the application under Section 163A of the Act against the insurance company of the vehicle driven by the deceased himself is liable to be dismissed.

5.2 While answering the aforesaid question involved in the present case, first of all, the findings recorded by the learned Tribunal on Issue No. 2 is required to be dealt with and considered. The learned Tribunal framed Issue No. 2 to the effect whether the deceased-driver was driving

RAMKHILADI v. THE UNITED INDIA INSURANCE COMPANY

[M. R. SHAH, J.]


the vehicle-motor cycle bearing registration No. RJ 02 SA 7811 being in employment of the vehicle owner-opposite party-Bhagwan Sahay in his interest or with his permission/knowledge?

5.3 While answering the finding recorded by the learned Tribunal on Issue No. 2, it appears that, as such, the learned Tribunal has not at all answered the aforesaid issue. While answering Issue No. 2, there is no specific finding whether the deceased-driver was in employment of the opponent-owner Bhagwan Sahay or not. Even otherwise, no evidence is led by the claimants to prove that the deceased-driver was in employment of the opponent-owner Bhagwan Sahay. Despite the above, while answering Issue No. 4 there is some observation made by the learned Tribunal that the deceased-driver was in employment of the opponent-owner Bhagwan Sahay, which is not supported by any evidence on record. Under the circumstances, the deceased-driver cannot be said to be in employment of the opponent-owner Bhagwan Sahay and, therefore, he can be said to be permissible user and/or borrower of motor vehicle owned by the opponent-owner Bhagwan Sahay. With these findings, the main question posed for consideration of this Court referred to hereinabove is required to be considered.

5.4 An identical question came to be considered by this Court in the case of Ningamma (supra). In that case, the deceased was driving a motorcycle which was borrowed from its real owner and met with an accident by dashing against a bullock cart i.e. without involving any other vehicle. The claim petition was filed under Section 163A of the Act by the legal representatives of the deceased against the real owner of the motorcycle which was being driven by the deceased. To that, this Court has observed and held that since the deceased has stepped into the shoes of the owner of the vehicle, Section 163A of the Act cannot apply wherein the owner of the vehicle himself is involved. Consequently, it was held that the legal representatives of the deceased could not have claimed the compensation under Section 163A of the Act. Therefore, as such, in the present case, the claimants could have even claimed the compensation and/or filed the claim petition under Section 163A of the Act against the driver, owner and insurance company of the offending vehicle i.e. motorcycle bearing registration No. RJ 29 2M 9223, being a third party with respect to the offending vehicle. However, no claim under Section 163A was filed against the driver, owner and/or insurance company of the motorcycle bearing registration No. RJ 29 2M 9223. It

is an admitted position that the claim under Section 163A of the Act was only against the owner and the insurance company of the motorcycle bearing registration No. RJ 02 SA 7811 which was borrowed by the deceased from the opponent-owner Bhagwan Sahay. Therefore, applying the law laid down by this Court in the case of Ningamma (supra), and as the deceased has stepped into the shoes of the owner of the vehicle bearing registration No. RJ 02 SA 7811, as rightly held by the High Court, the claim petition under Section 163A of the Act against the owner and insurance company of the vehicle bearing registration No. RJ 02 SA 7811 shall not be maintainable.

5.5 It is true that, in a claim under Section 163A of the Act, there is no need for the claimants to plead or establish the negligence and/or that the death in respect of which the claim petition is sought to be established was due to wrongful act, neglect or default of the owner of the vehicle concerned. It is also true that the claim petition under Section 163A of the Act is based on the principle of no fault liability. However, at the same time, the deceased has to be a third party and cannot maintain a claim under Section 163A of the Act against the owner/insurer of the vehicle which is borrowed by him as he will be in the shoes of the owner and he cannot maintain a claim under Section 163A of the Act against the owner and insurer of the vehicle bearing registration No. RJ 02 SA

7811. In the present case, the parties are governed by the contract of insurance and under the contract of insurance the liability of the insurance company would be qua third party only. In the present case, as observed hereinabove, the deceased cannot be said to be a third party with respect to the insured vehicle bearing registration No. RJ 02 SA 7811. There cannot be any dispute that the liability of the insurance company would be as per the terms and conditions of the contract of insurance. As held by this Court in the case of Dhanraj (supra), an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorized 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 the said decision, it is further held by this Court that Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle.

5.6 In view of the above and for the reasons stated above, in the present case, as the claim under Section 163A of the Act was made only

RAMKHILADI v. THE UNITED INDIA INSURANCE COMPANY

[M. R. SHAH, J.]


against the owner and insurance company of the vehicle which was being driven by the deceased himself as borrower of the vehicle from the owner of the vehicle and he would be in the shoes of the owner, the High Court has rightly observed and held that such a claim was not maintainable and the claimants ought to have joined and/or ought to have made the claim under Section 163A of the Act against the driver, owner and/or the insurance company of the offending vehicle i.e. RJ 29 2M 9223 being a third party to the said vehicle.

5.7 Now, so far as the reliance placed upon by the learned Advocate for the claimants on the decision of this Court in the case of Naveen Kumar (supra), on considering the issue involved in that decision, we are of the opinion that the said decision shall not be applicable to the facts of the case on hand and/or the same shall not be of any assistance to the claimants. In that case, the issue was as to who could be said to be the registered owner of the vehicle and the liability of the owner who sold the vehicle, but his name continued to be as the owner with the registering authority. To that, it was held that the person in whose name the motor vehicle stands registered is the owner of the vehicle for the purpose of the Act.

5.8 However, at the same time, even as per the contract of insurance, in case of personal accident the owner-driver is entitled to a sum of Rs.1 lakh. Therefore, the deceased, as observed hereinabove, who would be in the shoes of the owner shall be entitled to a sum of Rs.1 lakh, even as per the contract of insurance. However, it is the case on behalf of the original claimants that there is an amendment to the 2nd Schedule and a fixed amount of Rs.5 lakh has been specified in case of death and therefore the claimants shall be entitled to Rs.5 lakh.

The same cannot be accepted. In the present case, the accident took place in the year 2006 and even the Judgment and Award was passed by the learned Tribunal in the year 2009, and the impugned Judgment and Order has been passed by the High Court in 10.05.2018, i.e. much prior to the amendment in the 2nd Schedule. In the facts and circumstance of the present case, the claimants shall not be entitled to the benefit of the amendment to the 2nd Schedule. At the same time, as observed hereinabove, the claimants shall be entitled to Rs.1 lakh as per the terms of the contract of insurance, the driver being in the shoes of the owner of the vehicle.

5.9 Now, so far as the submission made on behalf of the claimants that in a claim under Section 163A of the Act mere use of the vehicle is enough and despite the compensation claimed by the heirs of the owner of the motorcycle which was involved in the accident resulting in his death, the claim under Section 163A of the Act would be maintainable is concerned, in view of the decision of this Court in Rajni Devi (supra), the aforesaid cannot be accepted. In Rajni Devi (supra), it has been specifically observed and held that the provisions of Section 163A of the Act cannot be said to have any application with regard to an accident wherein the owner of the motor vehicle himself is involved. After considering the decisions of this Court in the cases of Oriental Insurance Co. Ltd. V. Jhuma Saha (2007) 9 SCC 263; Dhanraj (supra); National Insurance Co. Ltd. V. Laxmi Narain Dhut (2007) 3 SCC 700 and Premkumari v. Prahlad Dev (2008) 3 SCC 193, it is ultimately concluded by this Court that the liability under Section 163A of the Act is on the owner of the vehicle as a person cannot be both, a claimant as also a recipient and, therefore, the heirs of the owner could not have maintained the claim in terms of Section 163A of the Act. It is further observed that, for the said purpose, only the terms of the contract of insurance could be taken recourse to. In the recent decision of this Court in the case of Ashalata Bhowmik (supra), it is specifically held by this Court that the parties shall be governed by the terms and conditions of the contract of insurance. Therefore, as per the contract of insurance, the insurance company shall be liable to pay the compensation to a third party and not to the owner, except to the extent of Rs.1 lakh as observed hereinabove.

6. In view of the above and for the reasons stated above, the present appeal is partly allowed to the aforesaid extent and it is observed and held that the original claimants shall be entitled to a sum of Rs.1 lakh only with interest @ 7.5 per cent per annum from the date of the claim petition till realization. In the facts and circumstance of the present case, there shall be no order as to costs.

Ankit Gyan Appeal partly allowed.

RAMKHILADI v. THE UNITED INDIA INSURANCE COMPANY

[M. R. SHAH, J.]