High Court of Judicature For Rajasthan · 2025

Judgment

1. Present appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 by the appellant-wife, assailing the award dated 11.08.2010 passed by the learned Motor Accident Claims Tribunal, Jaipur City, Jaipur.

Brief facts of the case are that on 22.05.2007 the appellant while driving Scooty bearing No.RJ-14-SB-2085 was returning from Khandelwal Institute to his house, suddenly the another motorcycle bearing No.RJ-23-SA-4499 being driven in a rash and [2025:RJ-JP:17876] (2 of 10) [CMA-2548/2010] negligent manner collided with the appellant's Scooty. As a result of that accident, appellant sustained injuries.

3. Claim petition has been filed before the learned Motor Accident Claims Tribunal under Section 163-A against the owners of motorcycle bearing No.RJ-23-SA-4499 and Scooty bearing No.RJ-14-SB-2085.

4. That the respondent No-1-Ravikant Sharma filed reply to the claim petition and denied the averments made therein and prayed for dismissal of the same.

5. That the respondent No-4-Insurance Company filed reply to the claim petition and denied the averments made therein and further submitted that since the appellant is the wife of the owner of the vehicle i.e. Gautam Tikku, therefore, she can't be termed to be a third party and as per the policy the injuries suffered by the appellant is not covered, therefore, the claim petition may be rejected qua the unserved respondent.

6. On the basis of the pleadings of the parties, the learned Motor Accident Claims Tribunal framed following issues:- "1- vk;k iz'uxr okgu la- vkj-ts- 23 ,l-,-&4499 ds pkyd foi{kh la[;k&01 ,oa LdwVh ua- vkj-ts-14&,l-ch- 2085 dks izkFkhZ;k ds }kjk fnukad 22-05-07 dks 6%00 ih-,e- ij [k.Msyoky bULVhV~;wV dk pkSjkgk ij mDr okgu dks pykdj dh nq?kZVuk esa vkbZ pksVksa ds ifj.kkeLo:i xqatu ds pksVsa vkbZ \ 2- vk;k mDr okgu pkyd mDr okgu Lokeh foi{kh la[;k&01 o 03 ds fu;kstu esa gksdj mlh ds fgrkFkZ ,oa ykHkkFkZ dk;Z dj jgk Fkk \ 3- vk;k foi{kh la[;k&04 chek dEiuh }kjk vius fyf[kr dFku dh izkjfEHkd vkifRr;ksa ,oa fo'ks"k dFku ds en~nsutj chek dEiuh vius nkf;Ro ls eqDr gks ldrh gS ugha rks bldk izHkko \ [2025:RJ-JP:17876] (3 of 10) [CMA-2548/2010] 4- vk;k nkosnkj vius nkos esa vafdr iz'uxr jkf'k ;k vU; dksbZ U;k; lEer jkf'k ik ldrh gS] gka rks dkSu&dkSu nkosnkj fdruh&fdruh jkf'k] fdl&fdl foi{kh ls ,oa fdl izdkj ls ik ldrh gS \"

7. In order to substantiate the averments of claim petition the claimant examined herself as AW-1.

8. On the contrary, respondent-Insurance Company examined NAW-1 Sanwar Mal Sharma and NAW-2 Trilokinath Saini.

9. The learned Motor Accidents Claims Tribunal, after hearing arguments of the respective parties, by its impugned award dated

11.08.2010 directed the respondent No.1 Ravikant Sharma, to pay compensation to the appellant to the tune of Rs.1,80,000/- along with interest @ 6% with effect from 27.07.2007, however, while deciding the findings on issue Nos.3 and 4, the learned Motor Accidents Claims Tribunal has exonerated the Insurance Company on the ground that injured was driving vehicle owned by her husband and as per the terms of policy, injuries of the appellant are not covered under the policy and, therefore, Insurance Company is not liable to pay compensation.

10. That present appeal has been filed by the claimant only to assail the findings on issue Nos. 3 and 4 and it has been contended by the learned counsel for the appellant-claimant that the learned Motor Accidents Claims Tribunal erred in exonerating the Insurance Company while holding that the injured was driving the vehicle owned by her husband. According to the learned counsel for the appellant-claimant, the Insurance Company ought not to have been exonerated as case of present claimant is covered under the word "third party". [2025:RJ-JP:17876] (4 of 10) [CMA-2548/2010]

11. Per contra, learned counsel for the respondent-Insurance Company refuted the said submissions and contended that the learned Motor Accidents Claims Tribunal had discussed the findings and evidence on record and after considering the facts and circumstances while relying upon the judgment passed by the Hon'ble Supreme Court in the case of Ningamma and Anr. Vs. United India Insurance Co. Ltd. [(2009) 3 T.A.C 13 (S.C.) rightly exonerated the Insurance Company.

12. Heard learned counsel for both the parties and perused the record.

13. From bare perusal of the record, it is revealed that the injured was driving the vehicle owned by her husband and the driving license of the injured is also not produced on record and as per the terms and conditions of the policy the risk of the appellant is not covered. Therefore, contentions so raised by the appellant- claimant that the Insurance Company is wrongly exonerated, lacks merit.

14. That the question that whether the appellant is entitled to claim compensation when she is driving the vehicle borrowed from the real owner has been considered by the Hon'ble Supreme Court in case of Ningamma (supra) in Para Nos.13, 16, 19 and 20 the Hon'ble Supreme Court held 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 [2025:RJ-JP:17876] (5 of 10) [CMA-2548/2010] Section 163-A of M.V.A 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 Sections 163-A and 166 of the M.V.A. 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 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. (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 deceased; or (d) 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: 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 [2025:RJ-JP:17876] (6 of 10) [CMA-2548/2010] the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.

16. The aforesaid decisions make it quite clear that the Parliament by introducing Section 163-A in the M.V.A. provided for payment of compensation on structured formula basis by mandating that the owner of a motor vehicle or the authorised insurer would be liable to pay compensation, as indicated in the Second Schedule in the case of death or permanent disablement due to accident arising out of the use of the motor vehicle, to the legal hires or the victim, as the case may be in a claim made under sub-section (1) of Section 163-A of the M.V.A. In order to prove a claim of this nature the claimant would 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 concerned.

19. We have already extracted Section 163-A of the M.V.A. 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 M.V.A. Accordingly, the legal representatives of the deceased who have stepped into [2025:RJ-JP:17876] (7 of 10) [CMA-2548/2010] the shoes of the owner of the motor vehicle could not have claimed compensation under Section 163-A of the M.V.A.

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 tompensation under Section 163-A of the M.V.A. 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 M.V.A. The said provision specifically provided 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 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 as 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 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 had 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 [2025:RJ-JP:17876] (8 of 10) [CMA-2548/2010] 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 M.V.A. 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; (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 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, or bodily injury to, any such employee- (a) engaged in driving the vehicle, or (b) if it is public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or (c) if its a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability. [2025:RJ-JP:17876] (9 of 10) [CMA-2548/2010] (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, limit of rupees six thousand: Provided that, any policy of insurance issued with any limited liability and in force, immediately before the commencement of 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. (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."

15. A bare perusal to the aforesaid judgment reveals that the learned Motor Accidents Claims Tribunal has not committed any illegality in exonerating the Insurance Company.

16. Apart from this a bare perusal to Ex.NA-1, it is evident that policy covers compulsory PA to owner-cum-driver, therefore, the Insurance Company is not entitled to pay any compensation.

17. It is also noteworthy to mention here that as per the GR 36 Personal Accident Cover on the motor policy, only specified nature of injuries are covered. The scope of the cover, Capital Sum Insured (CSI) and the annual premium payable under this section are as under:- [2025:RJ-JP:17876] (10 of 10) [CMA-2548/2010] TYPE OF VEHICLES CAPITAL SUM INSURED (Rs.) PREMIUM (Rs.) COVER Motorised Two Wheelers 1 Lakh 50/- i) 100% of CSI for Death, Loss of Two Limbs or sight of both eyes or one limb and sight of one eye. (ii) 50% of CSI for Loss of one Limb or sight of one eye. (iii) 100% Permanent Total Disablement from injuries other than named above.

18. Since in the case in hand, the appellant suffered fracture in leg which is not covered under the injuries specified hereinabove, thus, for the injuries suffered by the appellant, Insurance Company is not liable to pay compensation.

19. In view of above facts and circumstances, I am of the considered opinion that the findings of Issue Nos. 3 and 4 recorded under the impugned award whereby no liability has been fastened upon the Insurance Company, does not suffer from any legal infirmity or perversity, therefore, the present appeal fails and same is hereby dismissed.

20. Any other pending application(s), if any, stands disposed of. SOURAV /53 (MANEESH SHARMA),J