Heard Mr. R. Goswami, learned counsel for the appellant as well as Mr. K. Das, learned counsel for the respondents.
2. This is an appeal directed towards MACT Case No. 1220/2007, passed by the learned Motor Accident Claims Tribunal, Kamrup, Guwahati on 21.09.2010.
Brief facts of the case is that on 17.12.2006, Siraj Uddin was proceeding towards Kamrup by riding a motorbike bearing Registration No. AS01-Z-048 (Motorbike). While he was trying to give side to another vehicle, he met with an accident and was grievously injured. He succumbed to his injuries. The victim had borrowed the motorbike of Md. Nur Uddin, who was the registered owner which was covered under package policy with the United India Insurance Company Ltd. The claimants filed the petition under Section 163-A of the Motor Vehicles Act, 1988 (M.V. Act) and the learned Tribunal decided the claim petition in favour of the claimant by awarding a sum of Rs. 2,49,000/- as compensation to be borne by the appellant. The learned Tribunal discussed the position of law as to who is the owner of the motor vehicle under the M.V. Act as provided in Section 2(30) of the M.V. Act and opined that a registered owner has a wide connotation. The vehicle can be in the possession and control of someone who is not the owner but he may be construed as an owner and liable. Thus, the ownership of the vehicle under the M.V. Act has a wider implication. Referring to the case of Ningamma & another vs. United India Insurance Company Ltd, (2009) 13 SCC 710 where it has been ruled by the Division Bench that the borrower of a vehicle steps into the shoes of the owner and he would be liable for compensation to the 3rd party, however, he would not be covered as he steps into the shoes of the owner of the vehicle in an accident caused by himself. A person could not be both the claimant and the receiver. This ratio is passed on the principle that the person who borrowed the vehicle has total possession of the vehicle and also control of the vehicle in the accident. However, in the absence of these 2 (two) elements, he would not step into the shoes of the real owner. Learned Tribunal opined that in the instant case, there is a difference in the case of Ningamma (supra) where the victim had borrowed the vehicle from the real owner for going from Ilkal to his native place. There was proof that the victim had borrowed the said motorbike from the owner. However, in the instant case at hand, it is not placed on records or proved that the deceased/claimant had borrowed the vehicle from the owner, hence, the factual matrix of Ningamma's (supra) case is not applicable in the instant case. Therefore, the learned Tribunal opined that the victim was entitled to compensation as a 3rd party. Discussing further, reliance has been placed on United India Insurance Company Ltd. Vs. H. Lalhmingliana, (2006) 2 GauLT 538 where it was observed that in short, "even when the victim himself was responsible for the accident, he can, as an injured or his legal representative, when the victim dies as a result of the accident maintain an application for compensation under Section 163-A and compensation cannot be refused by the Tribunal on the ground that victim himself was responsible for the injuries suffered by him or the death which he met with". The present petition being filed under Section 163-A, it was the opinion of the learned Tribunal that there is no requirement for proof of negligence from any quarter and the Tribunal could not refuse compensation as such. This being the basis of the finding of the learned Tribunal, the award, as mentioned above was granted. Mr. K. Das, learned counsel for the claimant/respondent argues that the findings of the learned Tribunal should not be interfered with, the findings being appropriate.
3. Learned counsel for the appellant, Mr. R. Goswami, has contended that the decision arrived at is in total contradiction to the principles of Torts laid down in the M.V. Act. For a liability under the M.V. Act, all liability must flow from the provision of Section 147 of the M.V. Act which provides as follows:-
"Section 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 authorised 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 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 the death of, or bodily injury to, any such employee--
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried 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 property 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 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, a 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.
(3) A policy shall be of no effect for the purposes of this Chapter unless and until there is 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 prescribed particulars of 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."
On reading of Section 147 of the M.V. Act it is clear that the category of liabilities which are enumerated as against the insurance is clearly spelled out and anything that is not covered within the purview of Section 147 of the M.V. Act creating tortious liability cannot be indemnified. The learned counsel has relied upon the under mentioned cases to support his argument:-
1. Ningamma & another vs. United India Insurance Company Ltd., (2009) 13 SCC 710
2. New India Assurance Company Limited vs. Sadanand Mukhi and Ors, (2009) ACJ 998SC
3. National Insurance Company Limited vs. Kanika Choudhury, (2006) 2 GauLT 261
4. Saheblal Chandra vs. Bodal Chandra (Chattisgarh), (2008) ACJ 1340
5. HDFC CHUB General Insurance Co. Ltd. vs. Shanti Devi Rajbalsingh Thakur (Bombay), (2008) ACJ 1280
6. Oriental Insurance vs. Meena Variyal & Ors,2007 ACJ 1285 (SC). The impugned judgment has failed the test of all the above judgments by the Hon'ble Apex Court and hence, it is not in accordance with the provisions of the M.V. Act.
4. Learned counsel has further argued that the principles underlining the law of Torts is that there has to be a tortious liability created in terms of Section 147 of the M.V. Act, the offending party is to be made liable. In the instant case, the victim has no one to blame. He has, by his own negligence suffered injury and his negligence cannot be settled upon another 3rd party. The deceased borrowed vehicle from the real owner and by his own negligence, without the involvement of any other vehicle caused his own death. The parameter of this situation has been fairly covered in New India Assurance Company Ltd. vs. Sadanand Mukhi & Ors., (2009) ACJ 998 (SC). In the instant case, the question arose as to whether the son of the owner of the vehicle can be treated as a 3rd party. The Hon'ble Apex Court held that the son of the insured does not fall within the meaning of 3rd party under the Act. The other case relied upon is Ningamma (supra) wherein, the facts, which is similar to the instant case has been fairly covered and the position of law is well settled in this matter and there is necessity for further discussion.
5. The issue that the bike had comprehensive policy was raised by the learned counsel for the respondent that the claimant is entitled to atleast personal accident claim liability, however, it has been objected by the learned counsel for the appellant that the matter was never raised at the initial stage/trial stage and it would be against the norms of pleading to raise the issue at this stage. On this issue reference was made to the Hon'ble Division Bench as to whether the Motor Accident Claims Tribunal or this Court could give directions under such contract between the insured and the insurer. However, the Hon'ble Division Bench opined that the matter was not in issue and did not think it appropriate to decide the issue. The matter remains unresolved.
6. On assessing the arguments forwarded by the parties, I am of the view that in the case of myriad of decisions rendered by the Apex Court, the position of law is clear that a person who borrows the vehicle from the real owner and makes accident without involvement of any other vehicle could not be treated as a 3rd party. The facts of the circumstances does not fall within the meaning of Section 147 of the M.V. Act which covers the nature of Torts that is recognizable for compensation. The law of Torts does not deal with a liability where a person causes injury to his own self. It deals with liability when a person causes civil injury to others or vice versa. In Oriental Insurance Company Limited Vs. Jhuma Saha, (2004) 8 SCC 553 , the Apex Court, has held as follows :-
"10. The deceased was the owner of the vehicle for the reasons stated in the claim petition or otherwise, he himself was to be blamed for the accident. The accident did not involve motor vehicle other than the one which he was driving. The question which arises for consideration is that the deceased himself being negligent, the claim petition under Section 166 of the Motor Vehicles Act, 1988 would be maintainable. Liability of the Insurance Company is to the extent of indemnification of the insured against the respondent or an injured person, a third person or in respect of damages for property. Thus, if the insured cannot be fastened with any liability under the provisions of the Motor Vehicles Act, the question of the insurer being liable to indemnify the insured, therefore, does not arise."
In Oriental Insurance Company Limited Vs. Rajni Devi, (2008) 5 SCC 736 , the Apex Court has held that "Section 163A of the M.V.Act cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved. Taking the interpretation further, it has been held that a person cannot be both, a claimant as also a recipient, with respect to the claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163A of the M.V.Act."
For the same reason accident arising out of one's own negligence is only covered under "Personal Accident" by paying extra premium, such cases are not justifiable in the Claims Tribunal which has to be settled between the insurer and insured.
Thus, injuries arising out of one's own negligence stands on a different footing and it is not a tortious liability in the strict sense. The p
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osition of the claimant is neither way beneficial for his claim :- (1) if the claimant has hired or taken the bike with the consent of the owner, he steps into the shoes of the owner and he cannot claim compensation; (2) if he has taken the bike without the consent of the owner, then he would be classified as a thief, and the Court cannot legalize theft by awarding him compensation. Thus situated, no right accrues upon the claimant whichever way the matter is considered. It has been clearly illustrated that the Apex Court has been consistent on the issue in all the above cases. There cannot be any new interpretations referred on the issue. From the above discussions, there is no hesitation to conclude that when a person borrows a motor car/motorbike from the real owner and meets with an accident due to his own negligence without involvement of any other motor vehicle or bike, the victim cannot be considered as a 3rd party within the meaning of Section 147 of the M.V. Act. This position is the same with respect to victims who meets with an accident without the consent of the real owner. Having considered these aspects, I am of the view that the order dated 21.069.2010, passed by the learned Motor Accident Claims Tribunal, Kamrup in MACT Case No. 1220/2007 cannot stand the test of law. Accordingly, the impugned order is set aside. Claimants are at liberty to settle the contractual agreement before the insurance company. Statutory deposit be refunded. Appeal is allowed.