1. Feeling aggrieved by the judgment and decree dated 09.12.2004 in O.P. No.1285 of 2001 passed by the III Motor Accidents Claims Tribunal, Warangal (for short ‘the Tribunal’), the appellant - Insurer - M/s. New India Insurance Company Limited preferred the present appeal challenging the liability as well as quantum of compensation awarded by the Tribunal.
2. Vide the aforesaid judgment, the Tribunal has awarded an amount of Rs.3,31,000/- (Rupees three lakhs and thirty one thousand only) towards compensation with proportionate costs and interest at 9% per annum thereon from the date of petition till the date of realization. The Tribunal directed the appellant - Insurer to deposit the compensation amount.
3. Heard Mr. P. Harinath Gupta, learned counsel for the appellant and Mr. A. Ravinder, learned counsel for respondent Nos.1 and 2. However, the appeal against respondent Nos.3 to 6 was dismissed for default by order, dated 27.04.2016.
4. It is the specific contention of the learned counsel for the appellant that as per Exs.A1 - FIR, A5 - charge sheet and deposition of PW.2, an eye-witness, on 21.02.2001 at about 10.30 a.m., deceased - Sangeraboina Ravi was proceeding on Hero Honda Motorcycle bearing registration No.AP 36G 4907 as pillion, driven by respondent No.1 belonging to respondent No.2 towards Annaram village. When they reached near Nakkalapalli village, a jeep was coming from opposite direction. In order to avoid accident, respondent No.1 took diversion in a negligent manner and dashed a Telephone Pole. Due to which, both of them fell down. The deceased died on the spot while respondent No.1 sustained injuries.
5. By referring the said facts supported by Exs.A1 - FIR and A5 - charge sheet and also the evidence of PW.2, the learned counsel for the appellant - Insurer would contend that the deceased died due to the negligence of the rider of the motorcycle and, therefore, the claimants being legal representatives of the deceased cannot invoke the provisions of the Motor Vehicles Act, 1988 (for short ‘the Act’). He would further contend that the deceased was not a third party as per the provisions of the Act and the claimants are not entitled for the compensation under the contract of Insurer. He would also contend that the Tribunal without appreciating the contention of the appellant that the deceased was not a third party and that the claimants are not entitled for compensation, has awarded the compensation as mentioned supra directing the appellant herein to deposit the same.
6. In support of above contentions, the learned counsel for the appellant has relied upon the principle held by the Hon’ble Supreme Court in New India Assurance Co. Ltd. v. Sadanad Mukhi (2009 ACJ 998), Dhanraj v. New India Assurance Co. Ltd. (2004) 8 SCC 553) and United India Insurance Co. Ltd., v. Sunanda (2007 ACJ 1715) and contends that in all the said decisions, the deceased died or person injured in the accident due to his own fault and that the legal heirs/injured are not entitled for compensation under the provisions of the Act.
7. The learned counsel for the appellant - Insurer would also contend that as per Ex.B2 - insurance policy and Ex.A6 - cover note, there is no coverage to the risk of owner/driver and pillion of the vehicle involved in the accident. According to him, the claimants did not produce contra evidence to disprove the contention of the Insurer. The Tribunal without appreciating Ex.B2 - insurance policy and Ex.A6 - cover note, held that the driver-victim of the crime vehicle is responsible for causing accident and that there is no need for proof of negligence under Section 163-A of the Act, the owner is vicariously liable to pay the compensation. It is also held by the Tribunal that respondent No.6 herein, owner, has insured the crime vehicle with the appellant - Insurer vide Exs.A6 - cover note and Ex.B2 – insurance policy and, therefore, the appellant is bound to indemnify the liability. According to him, in order to utilize the benefit under Section 163-A of the Act, beneficiary should not be the owner or rider of the crime vehicle and, therefore, fixing liability on the appellant by the Tribunal is erroneous for the reason that when accident had occurred due to own negligence, provision of Section 163-A would not be applicable.
8. Supporting the impugned order, the learned counsel for the contesting respondents - claimants would contend that the Tribunal upon consideration of the entire evidence on record, more particularly, Ex.A6 - cover note and Ex.B2 - insurance policy, gave a finding fixing the liability on the appellant and there is no error in it that warrants interference by this Court in the present appeal.
9. The learned counsel for the respondents by referring to various provisions of the India Motor Tariff including Personal Accident Cover under Motor Policy, Compulsory Personal Accident Cover for Owner - Driver, Optional Personal Accident Cover for persons other than Owner - Driver etc., would contend that policy is to be issued only in the standard forms given in Section 6 of the India Motor Tariff. He would also refer to ‘extra benefits’ mentioned in the said India Motor Tariff. The learned counsel for the respondents would also refer to the standard form for private car, package policy and personal accident to unnamed hirer and unnamed pillion passengers. The learned counsel for the respondents has also referred a Circular No. MOT / GEN / 10, dated 02.06.1986 issued by the Tariff Advisory Committee, Bombay and would contend that in the meeting of the said Committee, it was decided that the Standard Motor Cycle Comprehensive Policy should cover liability to pillion passengers treating them as occupants in the Motor Cycle and Provide indemnity to such persons who are not carried for hire or reward.
10. With the above said contentions, the learned counsel for the respondents would contend that it is the mistake of the appellant - Insurer in not collecting the premium from the deceased covering risk of owner-driver as per the said India Motor Tariff which is mandatory and, therefore, the claimants being legal heirs of the deceased shall not be deprived of compensation for no fault of them. He would further contend that M.V. Act is a beneficial legislation and, therefore, benefits should be given to the victims/claimants, legal heirs of the deceased. With the said contentions, the learned counsel for the respondents would contend that the Tribunal, on the analysis of the entire evidence, both oral and documentary, has rightly awarded the compensation fixing liability on the Insurer.
11. On perusal of the entire record including evidence, both oral and documentary, the claimants, to prove the accident, examined PW.1 - claimant No.1 and PW.2, an eye-witness to the accident. They have also filed Exs.A1 - FIR, A5 - charge sheet, A4 – Motor Vehicles Inspector’s Report. PW.1, father of the deceased, deposed about the accident occurred on 21.02.2001. According to him, the deceased was pillion rider. However, he has narrated the manner of the accident. Admittedly, he is not an eye witness. PW.2 - eye-witness deposed that on 21.02.2001 at about 10.30 a.m., when he was proceeding from his village bus stop towards his agricultural fields, at that particular point of time, one Hero Honda Motorcycle came in a rash and negligent manner with high speed, went on wrong side and dashed to a telephone pole due to which, the rider and pillion rider of the vehicle fell down on the road and received injuries. Immediately, he went to the spot, found the pillion rider of the Hero Honda died, whereas, rider of the vehicle received head injuries and other injuries. On his enquiry, the rider of the vehicle informed him that the deceased is Sangeraboina Ravi and he has informed the accident to the father of the deceased. He has also deposed that on receipt of complaint from the father of the deceased, police registered a case. According to him, the accident had occurred only due to rash and negligent driving of the driver of the Hero Honda Motorcycle. During cross-examination, PW.2 has admitted that the police examined him. He has further admitted that the accident had occurred on the left side of the road; at the time of accident, no jeep was coming in opposite direction and the jeep came after the accident. He gave evidence in the criminal case. He has further admitted during cross-examination that the rider of the Hero Honda Motorcycle was injured and he gave phone number to him.
12. As per Ex.A1 - FIR, the deceased was pillion, whereas in Ex.A5 - charge sheet, the police stated that their investigation reveals that on 21.02.2001 at about 9.00 hours, the accused and the deceased left the house, collected the Hero Honda Motorcycle bearing registration No.AP 36G 4907 from owner of the vehicle to go to Annaram village and left for Annaram village on the said Hero Honda Motorcycle driven by the accused. At about 10.30 hours, they reached near Nakkalapalli village, as a jeep was coming from opposite direction, the accused with an intention to avoid the accident, took diversion in a negligent manner and dashed against a telephone pole. Due to which, both of them fell down and the deceased died on the spot while the accused received injuries. LW.4 - Usilla Uppalaiah, PW.2 herein, who witnessed the accident, rushed to the spot. The police filed charge sheet and the same was taken on file vide C.C. No.327 of 2001 and the III Additional Judicial Magistrate of First Class, Warangal, after conducting trial and on consideration of entire material, vide Ex.B.5 - judgment dated 17.01.2004 acquitted the accused i.e., Erla Naresh, respondent No.5 herein. In the said judgment, there is a finding that PW.3, an eye-witness, played a vital role in deciding the guilt of the accused, but PW.3 therein (PW.2 herein) though stated as to the manner of the accident, could not say as to who drove the crime vehicle. There is further finding in Ex.B5 - judgment in C.C. No.327 of 2001 that PW.2 herein, eye-witness, in his chief examination itself clearly deposed that he does not know the person who drove the crime vehicle, he has clearly denied his statement given to the police as mentioned in Ex.B4. The accused therein was acquitted on the ground that the prosecution failed to prove the guilt of the accused beyond reasonable doubt.
13. Relying on Ex.B5 - judgment, the Tribunal gave a finding that PW.2 happened to be a double tongued person having given two views. By referring the documents including Ex.B1, B5 and deposition of PW.2, the Tribunal held that the deceased was a rider of the crime vehicle and he himself was negligent in driving the crime vehicle.
14. On the analysis of the entire evidence, both oral and documentary and as discussed above, the deceased died due to the negligence of respondent No.5 herein, rider of the Hero Honda Motorcycle bearing registration No.AP 36G 4907. There is no involvement of any third party. The Tribunal relying on Ex.B5 - judgment in C.C. No.327 of 2001 gave a finding that the deceased was rider of the crime vehicle and he himself was negligent in driving the crime vehicle. Even if the said finding is accepted, the deceased died due to his own negligence and there is no involvement of third party.
15. In view of the above, the question that falls for consideration by this Court is:
Whether the deceased is a third party and whether the legal heirs of the deceased - claimants are entitled to the compensation as held by the Tribunal?
16. In view of the rival submissions in the manner stated above, it is relevant to extract certain provisions of the Act.
“165. Claims Tribunals.- (1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both.
Explanation.— For the removal of doubts, it is hereby declared that the expression “claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles” includes claims for compensation under section 140 and section 163A.
(2) A Claims Tribunal shall consist of such number of members as the State Government may think fit to appoint and where it consists of two or more members, one of them shall be appointed as the Chairman thereof.
(3) A person shall not be qualified for appointment as a member of a Claims Tribunal unless he—
(a) is, or has been, a Judge of a High Court, or
(b) is, or has been a District Judge, or
(c) is qualified for appointment as a High Court Judge or as a District Judge or as a District Judge
(4) Where two or more Claims Tribunals are constituted for any area, the State Government, may by general or special order, regulate the distribution of business among them.”
17. It is also relevant to extract Section 166 of the Act deals with ‘application for compensation’, which is as under:
“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 the deceased; or
(d) by any agent duly authorized 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 the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.
(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:
Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.
(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act.”
18. It is also relevant to extract Section 146 of the Act deals with ‘necessity for insurance against third party which is as under:
“146. Necessity for insurance against third party risk-
(1) No person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that person, as the case may be, a policy of insurance complying with the requirement of this Chapter.
1 [Provided that in the case of a vehicle carrying, or meant to carry, dangerous or hazardous goods, there shall also be a policy of insurance under the Public Liability Insurance Act, 1991 (6 of 1991)].
Explanation--A person driving a motor vehicle merely as a paid employee, while there is in force in relation to the use of the vehicle no such policy as is required by this sub-section not be deemed to act in contravention of the sub-section unless he knows or has reason to believe that there is no believe that there is no such policy in force.
(2) Sub-section (1) shall not apply to any vehicle owned by the Central Government or a State Government and used for Government purposes unconnected with any commercial enterprise.
(3) The appropriate Government may, by order, exempt from the operation of sub-section (1) any vehicle owned by any of the following authorities, namely--
(a) the Central Government or a State Government, if the vehicle issued for Government purposes connected with any commercial enterprise;
(b) any local authority;
(c) any State transport undertaking.
Provided that no such order shall be made in relation to any such authority unless a fund has been established and is maintained by that authority in accordance with the rules made in that behalf under this Act for meeting any liability person in its employment may incur to third parties.
Explanation--For the purposes of this sub-section," appropriate Government" means the Central Government or a State Government, as the case may be, and--
(i) in relation to any corporation or company owned by the Central Government or any State Government, means the Central Government or that State Government;
(ii) in relation to any corporation or company owned by the central Government and one or more State Government, means the Central Government;
(iii) in relation to any other State transport undertaking or any local authority, means that Government which has control over that undertaking or authority.”
19. Section 147 of the Act deals with ‘requirements of policies and limits of liability’ which is extracted as under:
“147. Requirements of policies and limits of liability--
(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which--
(a) is issued by a person who is an authorized insurer; and
(b) insures 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 1[injury to any person, including 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 a public place;
(ii) against the death of or bodily injury to any passenger of a public service 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 our of the 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 the death, or bodily injury to, any such employee--
(a) engaged in driving the vehicle, or
(b) if it is public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a good carriage, being in the vehicle, or
(ii) to cover any contractual liability.
Explanation-For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any of a third party shall be deemed to have been caused by or to have arisen out of the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.
(2) Subject to the provision to sub-section (10, a policy of insurance referred to in sub-section (1) shall cover any liability incurred in respect of any accident, upto 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 if 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.
(3) A policy shall be of no effect for the purposes of this Chapter unless and until there issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases.
(4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe.
(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.”
20. As per Section 165 of the Act, the State Government will constitute the Motor Claims Accidents Tribunal by way of a Notification in the Official Gazette for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising or both. Section 166 of the Act deals with application for compensation and as per Clause (c), an application has to be made where death has resulted from the accident, by all or any of the legal representatives of the deceased. Section 146 of the Act deals with necessity for insurance against third party risk, whereas, Section 147 deals with requirements of policies and limits of liability.
21. The Hon’ble Apex Court in National Insurance Company Limited v. Ashalata Bhowmik (2018) 9 SCC 801) held that the deceased himself was the owner-cum-driver of the offending vehicle, he was not a third party within the meaning of Motor Vehicles Act. The accident had occurred due to negligence of the deceased and, therefore, the application filed by the legal heirs of the deceased under the provisions of M.V. Act claiming compensation is not maintainable. In the present case also, the deceased died due to his own negligence and there was no involvement of third party. The deceased was not a third party within the meaning of the Motor Vehicles Act. In another case in Dhanraj2, the Hon’ble Apex Court held that insurance policy under Section 147 of the Act does not require an Insurance Company to assume risk for death or bodily injury to the owner of the vehicle and that such an insurance policy is only to indemnify the insured against liabilities incurred towards a third person or in respect of damages to property, and that an owner of a vehicle can only claim a payout in respect of bodily injury to himself provided he is specifically covered by the policy in question.
22. In another case, in New India Assurance Company Limited v. Prabha Devi (2013) 14 SCC 719), the Apex Court held that the statutory liability of Insurer under the Act is only for indemnifying insured against third party or in respect of damages to property, but cannot be extended to insured. In Oriental Insurance Company Limited v. Jhuma Saha (SMT) (2007) 9 SCC 263), the Apex court held that when no additional premium paid by owner of the vehicle so as to cover any risk for death or bodily injury to the owner and that the owner himself was driving the vehicle which due to his negligence dashed with a tree on the roadside as a result of which he died, claim petitio
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n under the provisions of the Act is not maintainable. It was further held that Sections 147 (1) (b) of the Act covers only third party risk. The same principle was also held in Sadanad Mukhi (supra). 23. In view of the above said principle and also as discussed supra, the accident had occurred due to the negligence of the deceased himself and there is no third party involvement. Thus, the claim filed by the legal representatives of the deceased under the provisions of the Act is not maintainable. 24. The contention of the claimants with regard to the provisions of India Motor Tariff, Circular dated 02.06.1986 issued by the Tariff Advisory Committee and that it is the mistake of the Insurance company in not collecting the premium for the deceased etc., the claimants cannot raise the said contentions in the application filed under Sections 166 and 163A of the M.V. Act. If at all, the claimants are having any grievance, they have to approach the appropriate forum but not under the provisions of M.V. Act. In view of the same, the said contention of the claimants cannot be accepted. 25. On perusal of the claim petition, it is mentioned that it was filed under Section 166 and 163A of the M.V. Act read with Rule 455 of the Motor Vehicles Rules, 1989. The Tribunal by referring a memo dated 03.04.2004 filed by the claimants giving option to the Tribunal to decide the claim either under Section 166 of the Act or under Section 163A of the M.V. Act, and accordingly, the Tribunal has decided the claim under Section 163A of the Act. But, as discussed supra, the deceased died due to his own negligence and fault, he is not a third party as per the provisions of the Act and, therefore, the legal heirs of the deceased cannot maintain an application under the provisions of the Act. Thus, the finding of the Tribunal in deciding the claim petition under Section 163A of the Act is unsustainable. 26. On perusal of Ex.B2 - policy and Ex.A6 - cover note, there is no extra premium collected for the risk of the owner or rider including pillion. It is only covered for third parties. Therefore, viewed from any angle, the claim petition filed by the legal heirs of the deceased is not maintainable in view of the fact that there is no third party involvement in the accident. Thus, the impugned judgment and decree dated 09.12.2004 in O.P. No.1285 of 2001 passed by the Tribunal awarding compensation of Rs.3,31,000/- to the claimants are hereby set aside. 27. In view of the above discussion, the appeal filed by the appellant - Insurer is allowed. However, there shall be no order as to costs. As a sequel, Miscellaneous Applications, if any, pending in the appeal shall stand closed.