High Court
Facts
{1} FA 3017.13.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 3017 OF 2013United India Insurance Co. Ltd.,through it’s Divisional Manager and authorizedrepresentative and signatory, Ahmednagar Divisional Office,Kisan Kranti Building, Ahmednagar,Dist. Ahmednagar... AppellantsVersus1. Smt. Suvarna Dadasaheb Pawar,Age 30 years, Occ. Nil.2.Master Aditya Dadasaheb Pawar,Age 9 years, Occ. Education,through Natural Guardian Res. No.1 – mother.3.Gopinath Dhondiba Pawar,Age 68 years, Occ. Labour,4.Yamunabai Gopinath PawarAge 60 years, Oc. Nil.Respondent Nos. 1 to 4 R/o. Murshatpur,Taluka Kopargaon, Dist. Ahmednagar... Respondents. (No. 1 to 4 : Ori. Claimants No.5 Ori. Opponent No.1.)Mr. A.B. Gatne, Advocate for the appellantMr. A.S. Gandhi, Adv. For respondent No.1.Respondent No.2 under guardianship of respondent No.1Respondent Nos. 3 and 4 served. CORAM : S.G. CHAPALGAONKAR, J. RESERVED ON : 18th APRIL, 2024.PRONOUNCED ON : 6th MAY, 2024. {2} FA 3017.13.odtJUDGMENT :-1.The appellant – original respondent No.2/insurer impugnsthe judgment and award dated 30.10.2012, passed by the MotorAccident Claims Tribunal, Kopargoan, in MACP No. 99 OF 2005. Byconsent of parties appeal is taken-up for final hearing. 2.Brief facts giving rise to the present appeal are narrated asunder :-Late Dadasaheb Pawar, borrowed motorcycle bearingregistration No. MH-15/ V-947 from his brother i.e. respondent No.1. Hewent to Khultabad alongwith his friends on said motorcycle. In returnjourney, he was riding the motorcycle and his two friends were pillionriders. Whilst, they were in the vicinity of village Murshadpur, a jeepbearing registration No. MH-16-e-5287 collided against the motorcycle.Dadasaheb and one of the pillion riders, suffered fatal injuries. On thereport given by Sachin i.e. Pawar-Brother of dadasaheb, FIR wasregistered against the jeep driver. The respondent Nos. 1 to 4 (original claimants) instituted the claimunder the provisions of Section 163-A of the Motor Vehicles Act 1988against the owner and insurer of the motorcycle seeking compensation ofRs. 3 Lakhs. It is contended that late Dadasaheb was an electricalwireman and running a shop in the name and style of Gajanan Electricalsat village Mohegaon. The claimants were dependent on his income. Theaccident occurred due to the involvement of the motorcycle in question,which was owned by respondent No.5 and insured with the appellant.The claim was contested by the appellant by filing the written statementcontending that the liability of insurance company is based on the terms
Legal Reasoning
{4} FA 3017.13.odt[I]Ram Khiladi and another Vs. United India Insurance (2020)2 SCC 550[ii]United India Insurance Company Vs. Tilak Singh(2006) 4 SCC 404[iii]Dr. T.V. Jose Vs. Chako T.M. AIR 2001 SC 3939{iv]New India Insurance Company Vs. Rama Gawas 2022 (1) All M.R. 608.6.Mr. Gandhi, learned advocate appearing for the respondentsclaimants submit that no specific defence has been raised in the writtenstatement as regards to the maintainability of claim and scope ofinsurance cover. By inviting attention of this Court to the copy of theinsurance policy, he contends that the compulsory PA. Cover for Owner –Driver for amount of Rs. 1 Lakh has been provided under the policy andfor that purpose premium of Rs. 50/- is charged. He would, therefore,submit that the insurer would be liable to pay compensation in terms ofextended insurance contract. Mr. Gandhi would further submit that in aclaim filed under Section 163-A of the Motor Vehicles Act the claimantsare neither required to plead negligence, nor can such defence beentertained. He would, therefore, urge to maintain the award passed bythe Tribunal.7.Having considered the submissions advanced by learnedadvocates appearing for respective parties and after going through therecord and proceedings, apparently, there is no dispute that lateDadasaheb lost his life owning to accidental injuries suffered by him. Theclaimants have specifically pleaded that the motorcycle was owned by the {5} FA 3017.13.odtbrother of the Dadasaheb-deceased, who had been to Khultabadalongwith his friends on said motorcycle. While he was riding themotorcycle in return journey, the offending jeep collided against themotorcycle. The claimants have further contended that deceased had hisown business in the name of Gajanan Electricals. The claimants havefurther relied upon the copy of the FIR (Exh.29). It depicts that on acomplaint given by Sachin Gopinath Pawar (i.e. real brother of lateDadasaheb, so also, owner of the motorcycle) offence has been registeredagainst the jeep driver. The contents of the FIR depicts in clear termsthat Dadasaheb had borrowed the vehicle of his brother for visiting thetemple at Khultabad and in return journey, the accident in question tookplace. Apparently, the vehicle was borrowed by late Dadasaheb for hisown use and pleasure from his brother. Unfortunately, he lost his lifebecause of the accident that occurred in return journey. The Insurancepolicy is placed at Exh.30. It is titled as motorcycle/scooter Liability OnlyPolicy. The schedule of premium depicts that the basic third partypremium of Rs. 160 has been charged. The compulsory PA for owner –driver for Rs. 1 Lakh is extended against premium of Rs. 50/-. There is nodispute as regards to the contents of the insurance policy.8.Turning to the written statement filed on behalf of theinsurer – appellant, no specific defence is raised barring contentions thatthere is breach of conditions of the policy and deceased himself wasresponsible for accident as he was riding the motorcycle. Anotherdefence of non-joinder of necessary party is put in service. In thisbackground, the issue that requires consideration in this appeal is :-“As to whether the claim under Section 163-A of the Motor VehiclesAct could have been maintained against the owner and insurer of {6} FA 3017.13.odtthe motorcycle that was borrowed by deceased Dadasaheb for hisown use, particularly, in reference to the terms and conditions ofinsurance policy – statutory provisions contained under Section147 of the Motor Vehicles Act ?”9.The issue is no more res-integra. The Supreme Court ofIndia, in case of Ramkhiladi (Supra) in very identical facts andcircumstances of the case had framed a question for determination,which states thus :-“The short question which is posed for consideration of this Courtis whether, in the facts and circumstances of the case and in a casewhere the driver, owner and the insurance company of anothervehicle involved in an accident and whose driver was negligent arenot joined as parties to the claim petition, meaning thereby that noclaim petition is filed against them and the claim petition is filedonly against the owner and the insurance company of anothervehicle which was driven by the deceased himself and the deceasedbeing in the shoes of the owner of the vehicle driven by himself,whether the insurance company of the vehicle driven by thedeceased himself would be liable to pay the compensation underSection 163A of the Act?; Whether the deceased not being a thirdparty to the vehicle No. RJ 02 SA 7811 being in the shoes of theowner can maintain the claim under Section 163A of the Act fromthe owner of the said vehicle? 10.While answering the aforesaid issue, the Supreme Court ofIndia observed in para. 9.5 thus :-“9.5.It is true that, in a claim under Section 163A of the Act,there is no need for the claimants to plead or establish thenegligence and/or that the death in respect of which the claimpetition is sought to be established was due to wrongful act,neglect or default of the owner of the vehicle concerned. It is alsotrue that the claim petition under Section 163A of the Act is basedon the principle of no fault liability. However, at the same time,the deceased has to be a third party and cannot maintain a claim {7} FA 3017.13.odtunder Section 163Aof the Act against the owner/insurer of thevehicle which is borrowed by him as he will be in the shoes of theowner and he cannot maintain a claim under Section 163A of theAct against the owner and insurer of the vehicle bearingregistration No. RJ 02 SA 7811. In the present case, the partiesare governed by the contract of insurance and under the contractof insurance the liability of the insurance company would be quathird party only. In the present case, as observed hereinabove, thedeceased cannot be said to be a third party with respect to theinsured vehicle bearing registration No. RJ 02 SA 7811. Therecannot be any dispute that the liability of the insurance companywould be as per the terms and conditions of the contract ofinsurance. As held by this Court in the case of Dhanraj (supra), aninsurance policy covers the liability incurred by the insured inrespect of death of or bodily injury to any person (including anowner of the goods or his authorized representative) carried inthe vehicle or damage to any property of a third party caused byor arising out of the use of the vehicle. In the said decision, it isfurther held by this Court that Section 147 does not require aninsurance company to assume risk for death or bodily injury tothe owner of the vehicle.”11.This court finds that observations of the Supreme court asindicated above, is a complete answer to the point under consideration inthe present case. The deceased was rider of the motorcycle which wasborrowed by him from his brother. He steps into the shoes of his brotherwhile riding the motorcycle and assumes character of owner while usingthe motorcycle for his pleasure purpose. While riding the motorcycle, hemet with the accident causing fatal injuries. Although, FIR alleges thatthe jeep collided against the motorcycle, claimants have not chosen toadd owner and insurer of the jeep as party to the claim petition. Theyprosecuted the claim only against the owner and insurer of themotorcycle. The scheme of statutory insurance under Section 147 of theMotor Vehicles Act does not require owner of vehicle to insure the risk ofthe rider of the motorcycle, except where such rider is employee of the {8} FA 3017.13.odtowner and in pursuance of such employment, he rides the motorcycle. Inthat case, the owner would be required to cover risk of his employee tothe extent of his liability prescribed under Employees compensation Act.However, in the present case, when the deceased had borrowed thevehicle for his own use from his brother, the statutory scheme does notrequire the owner to cover risk of such rider. Further, in case of death orinjury while riding the motorcycle, it would not be open for motorcyclerider/dependents of the deceased to maintain a claim under Section163A of the Motor Vehicles Act. The liability of the insurer woulddepend upon the terms of the contract. The parties to contract are atliberty to restrict the contract to meet the requirements of the statutoryprovisions under Section 147 of the Motor Vehicles Act or extend suchcontract on payment of additional premium.Although Mr. Gandhi, learned advocate for respondents/claimantsendeavors to point out inadequate pleadings in the written statement ofthe insurer, he could not persuade this court to assume liability of insurerin wake of crystallized legal position as discussed above. It is trite thatlaw need not be pleaded. If the liability of the insurer is based onstatutory provisions and such statutory provisions do not extend liabilitytowards rider of the two-wheeler, mere lacuna in the pleadings cannot bedragged to extend insurance cover beyond statutory scheme and grantbenefit in favour of the claimants. The liability of the insurer will have tobe fixed within the parameters of the statutory provisions, mandatingspecified insurance cover in tune with Section 147 of M.V. Act 1988 oradditional contract extending such cover. In present case, there is no dispute as regards to the contents of the {9} FA 3017.13.odtinsurance policy which predominantly appears to be liability only(statutory) policy. However, one additional head is secured to cover therisk of “Owner – Driver” to the extent of Rs. 1 Lakh by way of personalaccident benefit. Therefore, if it is assumed that late Dadasaheb steppedinto the shoes of owner of the vehicle while riding the motorcycle, thento the extent of insurance cover to “Owner-Driver” provided underinsurance policy of motorcycle, insurer would be under obligation to paycompensation and satisfy award.12.This Court as well as the Supreme Court of India in the caseof Ram khiladi (supra) based on very similar clauses of insurance policy,directed the insurer to release the amount of Rs. 1 Lakh commensurate tothe insurance cover for owner – driver under the PA benefit. Therefore,to that extent, the award of the Tribunal needs to be maintained, whileallowing the appeal filed by the insurer. Hence the following order :-O R D E R [I]First Appeal is partly allowed;[ii]The impugned judgment and award passed by Motor Accident Claims Tribunal, Kopargaon, in MACP No. 99 of 2005 dated 30thOctober, 2012 is hereby modified as under :-[a]Claim petition is partly allowed;[b]Opponent – Insurance company shall pay compensation ofRs. 1 Lakh to the claimant along with interest @ 9 % p.a. from the dateof filing the claim petition till realization of the whole amount ;[c]Opponent – insurer shall bear costs of the petition as well as
Arguments
{3} FA 3017.13.odtand conditions of the policy. The deceased himself was rider of themotorcycle. The owner and insurer of the offending vehicle i.e. jeep arenot added as party, hence claim is bad for non joinder of necessaryparties. They also alleged breach of conditions of policy for variousreasons.3.The Tribunal, after considering the submission and materialon record, allowed the claim petition and passed an award dated30.10.2012 for Rs. 4.21,650/- in favour of the claimants. holdingrespondents owner and insurer of motorcycle jointly and severally liableto pay compensation.4.Herd Mr Gatne, learned advocate appearing for theappellant. Mr. Gandhi learned advocate for the respondent claimants.5.Mr. Gatne learned advocate for the appellant insurer submitsthat late Dadasaheb was rider of the motorcycle at the time of accident.He is real brother of insured – owner of the motorcycle. The motorcycleis insured under “Third Party/liability only policy” that extendsinsurance cover in tune with statutory provisions contained underSection 147 of the Motor Vehicles Act . The risk of rider does not fallwithin the statutory cover. No premium is paid to cover the risk of therider who is not owner of the vehicle. In this backdrop, the claim underSection 163A of the Motor Vehicles Act can not be maintained against theowner and insurer of the vehicle. He would submit that the claimantshave chosen not to implead owner and insurer of jeep as party to thepetition. Therefore, the claim could not have been entertained againstthe appellant. In support of his contentions, he relied upon the followingjudgments :-
Decision
{10} FA 3017.13.odtthis appeal. The amount, if any, deposited by the appellant insurer berefunded after releasing the amount in favour of the claimants in termsof the modified award.[d]Appeal stands disposed of. [S.G. CHAPALGAONKAR] JUDGE grt/-