High Court
Facts
{1} FA 78.12 (1).odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 78 OF 2012The New India Assurance Company Ltd.,a Subsidiary of the General Insurance Corporation of India and a companyincorporated under the Companies Acthaving one of it’s Divisional Office atAdalat Road, Aurangabadthrough its Manager (Legal Hub) &Authorized Signatory... APPELLANTVERSUS1. Kaushallyabai W/o. Sahebrao Chavan, Age 45 years, Occ. Household, R/o. Mothiali, Khultabad, Tq. Khultabad, Dist. Aurangabad.2. Trimbak S/o. Sahebrao Chavan, Age 33 years, Occ. Service, R/o. As above no.1.3. Ganesh S/o. Sahebrao Chavan, Age 28 years, Occ. Service, R/o.. as above no.1.4. Sitabai W/o. Dadarao Bahadure, Age major, Occ. Owner, R/o. Mothiali, Khultabad, Tq. Khultabad, Dist. Aurangabad... RESPONDENTS.Mr. A.B. Kadethankar, Advocate for the appellant,Mr. S.R. Pande, Advocate for respondent Nos. 1 to 3.Respondent No.4 served. {2} FA 78.12 (1).odt CORAM : S.G. CHAPALGAONKAR, J. RESERVED ON : 13TH FEBRUARY, 2024PRONOUNCED ON : 21st FEBRUARY, 2024. JUDGMENT :-The appellant/Original respondent No.2-Insurer approachesthis Court under section 173 of the Motor Vehicles Act 1988, therebyimpugning the judgment and award Dated 16.8.2011 passed by theMotor Accidents Claim Tribunal, Ahmednagar in MACP No. 420 of 2009by which the claim for compensation filed by the respondent Nos.1 to 3herein has been allowed holding the appellant jointly and severally liableto pay compensation of Rs.2,10,200/- along with interest at the rate of9% p.a.2.For the sake of convenience, the parties are hereinafterreferred as per their original status.3.The respondent Nos. 1 to 3/Claimants had approached theTribunal invoking the provisions of section 163-A of the Motor VehiclesAct raising a claim for compensation of Rs. 4,00,000 from owner andinsurer of the vehicle bearing No. MH-20/AW 3956 alleging that On 16thMarch 2008, Sahebrao was proceeding on motorcycle bearingregistration No. MH-20/AW 3956 owned by respondent No.4 Sitabai.He reached near the village Mamnapur. An unknown motor vehicledashed his motorcycle. Resultantly, Sahebrao suffered fatal injuries.According to the claimants, Sahebrao was aged about 48 years at the
Legal Reasoning
{4} FA 78.12 (1).odtwritten statement filed by the insurance company; nor they haverecorded any evidence to depict that the risk of the motorcycle rider wasnot covered. He would submit that the policy beingcomprehensive/Package in nature would cover the risk of the rider of themotorcycle. Consequently Insurer cannot avoid its liability.8.Having considered the submissions advanced, apparently, thedispute in this appeal revolves around the scope of insurance cover underthe insurance policy of the motorcycle in question. A copy of theinsurance policy is placed on record at Exhibit 34 of the Tribunal whichdepict that it is a motorcycle/Scooter Policy (B) Package. The schedule ofpremium depict that the basic premium of 458 has been charged for₹own damage cover of the vehicle and 300 has been charged for third₹party cover. Apparently, the risk of the Owner-Driver or Rider of themotorcycle is not extended by accepting any premium on that count.9. At this stage reference can be given to the law laid down bythe Supreme Court of India in the matter of Ningamma Vs. United IndiaAssurance Co. Ltd. (2009) 13 SCC 710 as well as New India AssuranceCo. Ltd. vs. Sadanand Mukhi (2009)2 SCC 417. In both the aforesaidjudgments, it is held that the owner of the vehicle or his legalrepresentatives has no right to claim compensation from own insurerunder scheme of Act. Further, borrower of the vehicle steps into the shoesof the owner therefore borrower or his legal representatives are notentitled to claim compensation from the insurer under the scheme of theAct. Applying the aforesaid ratio in the facts of the present case, whenthe deceased had borrowed the motorcycle owned by respondent No.4for his own use, and while riding the said motorcycle the accidentoccurred, it will have to be presumed that the deceased had stepped intothe shoes of the owner. {5} FA 78.12 (1).odt10.Apparently, in the present case, looking to the terms of theinsurance policy at Exh.34, no premium is charged even in respect of theowner-driver. The Supreme Court of India in the case of OrientalInsurance Company Ltd. Vs. Rajani Devi (2008) 5 SCC 736 observed thatthe contract of insurance being governed by the contract qua contract,the claim would be dependent upon the terms thereof. Therefore, inabsence of any larger insurance coverage extending the benefit to therider of the motorcycle, the insurer cannot be made liable. Similar viewis reiterated in the case of National Insurance Company Vs. AshalataBhaumik reported (2018) 9 SCC 801. However, in that case, since therewas wider contract to cover the risk of owner-driver to the extent ofRs. 1 Lakh and finding that deceased being in the shoes of the owner,limited compensation to the extent of Rs. 1 Lakh was awarded.11.Pertinently, in the present case, the deceased had borrowedvehicle from respondent No.4 for his own use. While riding on themotorcycle he suffered injuries. Although, the present claim is filed underSection 163-A of the Motor Vehicles Act, since the deceased while ridingthe motor cycle, stepped into the shoes of the owner of the vehicle, hisclaim against owner and insurer of the motorcycle itself was notmaintainable. Reference can be made to the law laid down by the ApexCourt in the matter of Ram Khiladi and another Vs. The United IndiaInsurance Company and another (2020) 1 SCR 19. Similarly, this Courtin the case of New India Assurance Company Vs. Rama Vishwas Gavas (2022) ACJ 2723, observed in para No. 9 as under :-“9. In the instant case, the tribunal, it seems, was not alive tothe distinction between the contractual liability and thestatutory liability of the insurer qua the third party. Thetribunal was swayed by the fact that the application wasmade under Section 163-A of the MV Act, 1988. {6} FA 78.12 (1).odtUndoubtedly, if an application is made under the specialprovisions contained in Section 163-A of the Act, theclaimant shall not be required to plead or establish that thedeath or permanent disablement was due to any wrongful actor default of the owner of the vehicle or any other person.This, however, does not imply that the insurer is liable to paycompensation in cases where, it is neither statutorily liablenor has contractually undertaken the risk.”11.Taking the overall survey of the legal position emergingfrom the aforesaid pronouncements of the Supreme Court of India aswell as this Court, it is apparent that the claim filed by respondent Nos. 1to 3 itself was not maintainable. Further, the appellant/insurer has noliability in law to pay compensation. In the result, the appeal succeeds :Hence, the following order :: O R D E R :[A] The first appeal is allowed.[b] The judgment and award passed by the Motor Accidents ClaimTribunal, Aurangabad in MACP No. 420 of 2009 is hereby quashed and set aside to the extent of the appellant.[c]Amount if any deposited by the appellant/Insurer be refunded.No orders as to cost. [S.G. CHAPALGAONKAR] JUDGE grt/-
Arguments
{3} FA 78.12 (1).odttime of his death and he use to earn 3000 per month. ₹4.The claimants were dependent upon his income. Therespondents being owner and insurer of the motorcycle, liable to paycompensation to them. The claim was contested by the presentappellant/insurer by filing written statement at Exhibit 13 on the groundthat claim is not maintainable against the insurer of the motorcycle. If theunknown vehicle had given dash to the motorcycle of the deceased,claimants have no cause of action against the insurer of the Motorcycle.5.The Tribunal, after framing the issues, recorded evidence ofthe parties. The claimant No.1 deposed at Exhibit 19 and relied uponPolice papers, insurance policy and registration certificate of themotorcycle etc. The present appellant/insurer placed on recordinsurance policy at Exhibit 34. The Tribunal, after hearing the parties,allowed the claim petition and passed an award directing the owner andinsurer to jointly and severally pay Rs. 2,10,200/- to the claimants,alongwith interest at the rate of 9% per annum.6.Mr A.B. Kadethankar learned counsel for the appellant/insurer submits that admittedly the deceased was rider of the motorcyclethat was owned by Respondent No. 4 and insured with the appellantunder the package policy. However, the risk of motorcycle rider isneither covered under the statutory scheme under the Motor vehicles Actnor any additional contract extends such cover. The deceased was a“Gratuitous Driver”. He had borrowed the motorcycle for his own usefrom the insured/owner the vehicle. Resultantly, the appellant/Insurercould not have been held liable to pay the compensation.7.Per Contra, Mr Pandey learned advocate appearing for theClaimants vehemently submits that there are no specific pleadings in the