THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) MACApp. 51 of 2011

Transcription

1 THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) MACApp. 51 of 2011 NATIONAL INSURANCE CO. LTD. SHYAM RAI MAHANTA AND ORS. -Versus-..Appellant...Respondents BEFORE HON BLE MR. JUSTICE KALYAN RAI SURANA Advocates for the Petitioners Advocates for the Respondents : Mr. S.S. Sarma, Sr. Adv. : S.S. Sarangi, Mr. G. Jalan, : Mr. F. Khan, Ms. L. Sarma. : Ms. D.D. Roy, Ms. A.G. Choudhury : Mr. R. Goswami, Ms. C. Patgiri. Date of hearing and order : JUDGMENT AND ORDER (Oral) Heard Mr. S.S. Sarma, learned Senior counsel assisted by Ms. M. Mozumdar, learned counsel for the appellant as well as Ms. D.D. Roy, learned counsel appearing for the respondent No. 1 and 2/claimants. None appears on call for the respondent No. 3, although notice was duly served. 2. This appeal under Section 173 of the MV Act, 1988, is preferred against the judgment and award dated , passed by the learned Member, M.A.C. Tribunal, Kamrup (M), Guwahati in MAC Case No. 2544/2005, awarding compensation of Rs.1,62,000/- together with 6% interest from the date of filing of the claim petition till realization. MACApp. 51/2011 Page 1 of 15

2 3. The facts of the case is that the respondent No. 3 herein is the owner of the motorcycle bearing registration No. AS-01/V While riding the said motorcycle from Ganeshguri to Chandmari in Guwahati, the rider, namely, Dhrubajyoti Mahanta, met with an accident. As a result of the accident, he had sustained grievous injury and he had died. Claiming a compensation of Rs.6,75,000/-, i.e. the claimants, respondents No. 1 and 2 herein, who are the parents of the deceased projected that the deceased was 20 years of age and was self employed, having a monthly income of Rs.3,000/-. It was stated that the motorcycle was duly insured with the appellant herein. The appellant appeared in the case and filed their written statement. The respondent No. 3 did not contest the case and proceeded ex-parte against him. On the basis of the pleading, the learned Tribunal framed the following issues for adjudication: (i) Whether the victim Dhrubajyoti Mahanta died in the alleged accident dated , arising out of the use of motor vehicle No. AS-01/V-2561? (ii) Whether the present claim petition by the legal representatives of the deceased Dhurubajyoti Mahanta is maintainable? (iii) Whether the claimants are entitled for compensation as claimed for? If so, from whom it may recoverable and to what extent? 4. In support of the claim petition, the respondent No. 2, namely, Smt. Dalimi Mahanta, gave her evidence as PW.1. The following documents were exhibited, viz., Accident Information Report (Ext.1), Post Mortem Report (Ext.2), Income Certificate (Ext.3) and Driving Licence (Ext.4). In defence, the appellant adduced evidence of one Smt. Daisy Goswami, As DW.1, who was then working as an Assistant Manager and posted at Guwahati Divisional Office. The said witness had proved the policy of insurance as Ext.A. It was the specific statement by the DW.1 in paragraph 6 and 7 of the evidence on affidavit to the effect that as per the policy, the insurer was not liable for the injury received by the person MACApp. 51/2011 Page 2 of 15

3 driving the vehicle and as he was not a third party and that the policy issued under Section 147 of the Motor Vehicles Act, do not cover the injury of the person due to whose fault the accident occurred. The learned Tribunal by the impugned judgment by holding that as there was no evidence of the deceased had borrowed the vehicle, the case was distinguishable from the ratio laid down by the Hon ble Supreme Court in the case of Ningamma and another Vs. United India Insurance Co. Ltd., (2009) 13 SCC 710. Therefore, relying on the case of United India Insurance Co. Ltd. Vs. H. Lalhmingliana, 2006 (2) GLT 538, held that the respondents No. 1 and 2/claimants was entitled to compensation. Accepting the national income of the deceased as provided in the schedule appended to the M.V. Act, 1988 and after deducting one third on account of personal expenses, the annual dependency was computed at Rs.10,000/- and the compensation was assessed under: Loss of dependency Rs.10,000/- X 16 = Rs.1,60,000/- Funeral expenses Rs.2,000/- Total Rs.1,62,000/- The said award was to carry 6% per annum. 5. The learned Senior counsel for the appellant had relied on the case of Ningamma and anr. (supra) and it is submitted that without assigning any reason, the ratio of the case of Ningamma and anr. (supra) was not accepted merely on the ground that the deceased was not the borrower of the vehicle and that the case of Lalhmingliana (supra) was wrongly referred to because as per the facts of the said case, the claimant at the relevant time was employed as a driver of the taxi in question. It is further submitted that on facts, as the present case, the rider of the vehicle was not the paid driver of the vehicle, the ratio of the case of Lalhmingliana (supra) was not applicable. It is submitted that as the facts of the case is squarely covered by the case of Ningamma and anr. (supra), the impugned judgment was liable to be interfered with. MACApp. 51/2011 Page 3 of 15

4 6. Per-contra, the learned counsel for the respondent had placed reliance on the decision of this Court rendered in the case of United India Insurance Co. Ltd. vs. Musstt. Sakila Begum and 2 Ors. in MAC Appeal. No. 88/2013 decided on It is submitted that his Court had held that as there was no evidence as to whether the deceased was the borrower of the vehicle, the ratio of the case of Ningamma and anr. (supra) was not applicable. It is submitted that it was the onus was on the appellant to prove that the deceased was a borrower of the vehicle. It is submitted that on facts the case of Musstt. Sakila Begum (supra) squarely covered the present case in hand and therefore, as per the ratio laid down by this Court in the case of Musstt. Sakila Begum (supra), the appeal is deserved to be dismissed. 7. Having heard the learned counsel for the parties and on perusal of material available on record, only question determined by this Court is whether the ratio of the case of Musstt. Sakila Begum (supra) can be applied in the case in hand. 8. It must be mentioned that, this Court in the case of United India Insurance Co. Ltd. Vs. Anjali Kalita and Ors. in MAC Appeal. No. 149/2012 decided on had an occasion to deal with the similar facts. In the said case, one Hitesh Kalita was proceeding from Guwahati to Nalbari. The motorcycle bearing registration No. AS/01/T-0276, which he was riding had met with an accident, resulting the death of the said rider. This Court was confronted with the issue whether rider of the motorcycle had stepped into the shoes of the owner. By relying on the on several case laws including the case of Ningamma and anr. (supra), it was held as follows: 12. Having considered the rival arguments made by the learned counsel for both sides and on perusal of the materials available on record, this Court deems it relevant to refer to a few paragraphs of the judgment cited by the learned counsel for the appellant: (i) Prabha Devi and Ors. (supra): MACApp. 51/2011 Page 4 of 15

5 8. We have perused the judgment of this Court in the case of Dhanraj Supra. In that case, the appellant who was the insurer was travelling in the insured vehicle, which met with an accident. In the accident, the appellant as well as the other passengers received injuries. A number of claim petitions came to be filed. The appellant who was the insurer also filed a claim petition. The MACT held the driver of the Jeep responsible for the accident. In all the claim petitions filed by the other passengers, MACT directed that the appellant (the owner) as well as the driver and the Insurance Company were liable to pay compensation. Furthermore, in the claim petition filed by the appellant, the MACT directed the driver and the Insurance Company to pay compensation to the appellant. The aforesaid finding of the MACT was upheld by the High Court in the appeal filed by the Insurance Company. The Insurance Company was, in appeal before this Court challenging the judgment of the High Court awarding compensation to the owner of the insured vehicle. Taking into consideration the provision contained in Section 147 of the Act, this Court observed as follows :- 8. Thus, 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 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. Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle. MACApp. 51/2011 Page 5 of 15

6 9.In the case of Oriental Insurance Co. Ltd. versus Sunita Rathi it has been held that the liability of an insurance company is only for the purpose of indemnifying the insured against liabilities incurred towards a third person or in respect of damages to property. Thus, where the insured i.e. an owner of the vehicle has no liability to a third party the insurance company has no liability also. 10.In this case, it has not been shown that the policy covered any risk for injury to the owner himself. We are unable to accept the contention that the premium of Rs.4989 paid under the heading Own damage, the words premium on vehicle and non-electrical accessories appear. It is thus clear that this premium is towards damage to the vehicle and not for injury to the person of the owner. An owner of a vehicle can only claim provided a personal accident insurance has been taken out. In this case there is no such insurance. 9. In view of the aforesaid ratio of law, the claim made by the respondents could not have been allowed. Consequently, Civil Appeal No. 479 of 2007 is allowed. The impugned Award as well as the impugned judgment of the High Court are set aside. (ii) Ningamma and another (supra): 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 MACApp. 51/2011 Page 6 of 15

7 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 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 subsection (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 MACApp. 51/2011 Page 7 of 15

8 (iii) 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 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. Sadanand Mukhi and Ors. (supra): 3. The admitted fact of the matter is as under :- First respondent was owner of a motor cycle. He got the said vehicle insured with the appellant company; the policy being valid for the period and On 8th September, 2000 Tasu Mukhi, son of the insured, while driving the motor cycle met with an accident and died. The accident allegedly took place as a stray dog came in front of the vehicle. A First Information Report was also lodged. Respondents herein filed a claim petition. Amongst them, first respondent, who is the owner of the insured vehicle, was the applicant. xxxxxxxxxx 15. Contract of insurance of a motor vehicle is governed by the provisions of the Insurance Act. The terms of the policy as also the quantum of the premium payable for insuring the vehicle in question depends not only upon the carrying capacity of the MACApp. 51/2011 Page 8 of 15

9 vehicle but also on the purpose for which the same was being used and the extent of the risk covered thereby. By taking an `act policy', the owner of a vehicle fulfils his statutory obligation as contained in Section 147 of the Act. The liability of the insurer is either statutory or contractual. If it is contractual its liability extends to the risk covered by the policy of insurance. If additional risks are sought to be covered, additional premium has to be paid. If the contention of the learned counsel is to be accepted, then to a large extent, the provisions of the Insurance Act become otiose. By reason of such an interpretation the insurer would be liable to cover risk of not only a third party but also others who would not otherwise come within the purview thereof. It is one thing to say that the life is uncertain and the same is required to be covered, but it is another thing to say that we must read a statute so as to grant relief to a person not contemplated by the Act. It is not for the court, unless a statute is found to be unconstitutional, to consider the rationality thereof. Even otherwise the provisions of the Act read with the provisions of the Insurance Act appear to be wholly rational. 16. Only because driving of a motor vehicle may cause accident involving loss of life and property not only of a third party but also the owner of the vehicle and the insured vehicle itself, different provisions have been made in the Insurance Act as also the Act laying down different types of insurance policies. The amount of premium required to be paid for each of MACApp. 51/2011 Page 9 of 15

10 (iv) the policy is governed by the Insurance Act. A statutory regulatory authority fixes the norms and the guidelines. The said principle was reiterated in United India Insurance Co. Ltd. v. Davinder Singh, [ (2007) 8 SCC 698 ] holding :- 10. It is, thus, axiomatic that whereas an insurance company may be held to be liable to indemnify the owner for the purpose of meeting the object and purport of the provisions of the Motor Vehicles Act, the same may not be necessary in a case where an insurance company may refuse to compensate the owner of the vehicle towards his own loss. A distinction must be borne in mind as regards the statutory liability of the insurer vis-`-vis the purport and object sought to be achieved by a beneficent legislation before a forum constituted under the Motor Vehicles Act and enforcement of a contract qua contract before a Consumer Forum." Rajni Devi & Ors. (supra): 7. It is now a well settled principle of law that in a case where third party is involved, the liability of the insurance company would be unlimited. 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 insurance company would depend upon the terms thereof. The Tribunal, in our opinion, therefore, was not correct in taking the view that while determining the amount MACApp. 51/2011 Page 10 of 15

11 (v) of compensation, the only factor which would be relevant would be merely the use of the motor vehicle. xxxxxxxxx 11. The liability under Section 163-A of the Act is on the owner of the vehicle as a person cannot be both, a claimant as also a receipient. The heirs of Janakraj could not have maintained a claim in terms of Section 163-A of the Act. For the said purpose only the terms of the contract of insurance could be taken recourse to. Dhanraj (supra): 8. Thus, 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. Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle. 9. In the case of Oriental Insurance Co. Ltd. Vs. Sunita Rathi it has been held that the liability of an insurance company is only for the purpose of indemnifying the insured against liabilities incurred towards a third person or in respect of damages to property. Thus, where the insured i.e. an owner of the vehicle has no liability to a third party the insurance company has no liability also. 13. In the present case in hand, it is seen that learned Tribunal had highlighted the relevant finding of the case of Ningamma and another (supra) in paragraph 9 of the judgment. But interpreted the said ratio to hold that the MACApp. 51/2011 Page 11 of 15

12 there was nothing to show that he deceased has bound the vehicle at the relevant time and the actual owner and therefore, did not apply the ratio of the case of Ningamma and another (supra), the said finding, in the opinion of this Court is not sustainable, firstly because it was never the case of the respondent No. 3, who is the owner of the vehicle that his deceased brother was unauthorizedly driving the vehicle. When the respondent No. 3 did not contest the claim petition, it was not open for the learned Tribunal to take a hypothetical view that the driver cannot be said to borrow the vehicle. If the victim/deceased did not borrow the vehicle, he would be unauthorized driver and would not be entitled to any compensation from the appellant. The aforesaid opinion of this Court is tested in a different way by taking an example that if a thief while stealing and driving away a vehicle, he meets with an accident, whether the such an unauthorized driver who was illegally stealing the vehicle can maintain a claim for compensation from the insurer. The answer would obviously be no because the unauthorized driver cannot fall to the category of driving the vehicle authorizedly within policy condition of the package policy for a motorcycle, where premium is paid only for the compulsory personal accident to the owner/driver. The policy contains that clause for limitation as to use which does not cover the case where the victim who was unauthorizedly driving the motorcycle can claim coverage of a valid insurance policy in favour of the owner of the vehicle. Therefore, by following the case of Ningamma and another (supra), this Court has no hesitation to hold that the deceased, who was driving the motorcycle at the relevant time stepped into the shoes of the owner and the legal MACApp. 51/2011 Page 12 of 15

13 representatives of the deceased, one of whom is also the owner of the vehicle, could not have claimed compensation under Section 163A of the MV Act. In the case of Sadanand Mukhi (supra), the son of the insured was driving the vehicle and the Hon ble Apex Court had in clear terms held that it had no hesitation to hold that the insurance company was not liable and therefore, the appeal was allowed. 9. In view of above, it appears that while deciding the case of Musstt. Sakila Begum (supra), which was decided later in point of time, the earlier order of this Court was not placed before the Hon ble Bench, deciding the case of Musstt. Sakila Begum (supra). Therefore, this Court is required to follow the judgment rendered prior at point of time. As a result, this appeal stands allowed by holding that in the present case in hand, the primary onus to prove the status of the deceased, who was riding the motorcycle must be on the claimant. It is the duty of the claimant to establish as to what was the status of the person who was riding the vehicle i.e. whether it was by way of borrowing, by hiring or by unauthrorizedly riding of the vehicle. The burden to prove, according to this Court, always is on the claimant. Only if evidence to prove a particular fact is tendered, the onus of disproving it shifts on the insurer and that any if party takes a specific plea, then it would be their burden of proving it. The insurer cannot have knowledge of the fact that in what capacity the deceased was driving the motorcycle and there being no contract between the insurer and the deceased, it is impossible to shift the onus on the insurer to prove the status of the rider as borrower of the vehicle involved in the accident. 10. Under the circumstances, this Court is inclined to hold that unless the claimant proves the status of the rider/victim, the question of disproving the said point will not be on the insurer. The very fact that the deceased was riding the vehicle, in the absence of any ejhar before the police that the vehicle was stolen, it must be presumed that the rider was driving the motorcycle with the consent MACApp. 51/2011 Page 13 of 15

14 of the owner. Once with the consent one is riding the vehicle, there can be no escape that such person can only be a borrower, otherwise the person who is driving the vehicle would be an unauthorized driver, which is nobody case. Therefore, this Court is inclined to follow the judgment passed in the earlier decision in the case of Anjali Kalita (supra), which is prior in point of time to that of Musstt. Sakila Begum (supra). No other judgment has been placed before this Court to show that the ratio decided in the case of Musstt. Sakila Begum (supra), was being followed earlier also or to show that the judgment in the case of Anjali Kalita (supra) was per-incurium. Therefore, following the ratio of Ningamma and anr. (supra), this Court is of the view that the deceased in this case falls within the shoes of the owner. Therefore, the finding recorded by the learned Tribunal on issue No. 2 and 3 are found to be not sustainable in light of the ratio laid down in the case of Ningamma and anr. (supra). 11. Therefore, this appeal is allowed. Accordingly, the impugned judgment and award dated passed by the learned Member, M.A.C. Tribunal, Kamrup (M), Guwahati in MAC Case No. 2544/2005 is hereby set aside. 12. The parties are left to bear their own cost. 13. Let the LCR be returned forthwith. 14. At this stage, the learned counsel for the respondents No. 1 and 2 submits that the insurance policy had a personal accident coverage. If that be so, liberty is granted to the respondents No. 1 and 2 to approach the appellant/authorities by filing an application to that effect. On receipt of such application, the appellant/authorities may decide the said claim in accordance with law. MACApp. 51/2011 Page 14 of 15

15 15. The appellant is entitled to refund of the awarded sum or the statutory deposit, if any, lying with the Registry of this Court. JUDGE Mkumar MACApp. 51/2011 Page 15 of 15