2016(1) ALL MR 393
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

R. K. DESHPANDE, J.

The Oriental Insurance Company Ltd. Vs. Smt. Jaibunbi w/o. Gulambeg & Ors.

First Appeal No. 473 of 2003

26th November, 2015.

Petitioner Counsel: Shri. D.N. KUKDAY

(A) Motor Vehicles Act (1988), S.166 - Claim petition u/S.166 - Maintainability - Deceased died due to his own rash and negligent driving - No other vehicle was involved - Deceased was not a paid driver, he had borrowed the vehicle on friendly terms - In such a case, he steps into shoes of owner - Policy in question does not cover the risk of owner himself - Hence, claim petition at the instance of dependents of deceased, not maintainable. (2007) 9 SCC 263 Ref. to. (Para 9)

(B) Motor Vehicles Act (1988), S.147 - Insurer's liability - Principles relating to.

Following are the principles:

(a) Under Section 166 of the Motor Vehicles Act, the negligence on the part of the driver of the offending vehicle is required to be proved resulting in an injury being caused to a third person, which will attract the liability of the insurance company to indemnify the owner of the vehicle.

(b) Where the insured i.e. an owner of the vehicle has no liability to a third party or the owner is not the tort- feasor, the insurance company has also no liability.

(c) If the deceased himself is to be blamed for the accident without involving the motor vehicle other than the one which he was driving, there is no liability of the insurance company to indemnify such risk unless it is covered by the terms of the contractual policy.

(d) The question as to maintainability of an application under Section 166 of the Motor Vehicles Act to enforce the contractual liability in respect of the owner of the vehicle would depend upon the facts and circumstances of each case, and there cannot be any straight jacket formula, to hold that the claim is required to be tried in the different forum. [Para 8]

Cases Cited:
Dhanraj Vs. New India Assurance Co. Ltd. and another, 2004(5) ALL MR 1195 (S.C.)=(2004) 8 SCC 553 [Para 5]
Oriental Insurance Co. Ltd. Vs. Jhuma Saha (Smt.) and others, 2007 ALL SCR 906=2007 (9) SCC 263 [Para 6]
United India Insurance Co. Ltd. Vs. Davinder Singh, 2008(1) ALL MR 463 (S.C.)=(2007) 8 SCC 698 [Para 7]


JUDGMENT

JUDGMENT :- In the Claim Petition No.575 of 2002 filed under Section 166 of the Motor Vehicles Act, the Motor Accident Claims Tribunal at Nagpur has passed an award on 27.03.2003, in favour of the dependents of the deceased namely Nazir Beg, for a compensation of Rs.3,25,150/with 9% interest from the date of filing of the petition and further at the rate of 12% per annum from the date of award till its realization, for failure to deposit the amount within a period of 45 days. The owner of the vehicle and the Insurance Company both are held liable jointly and severally, to pay the amount of compensation. The Tribunal has held that the deceased was working as a driver on the vehicle i.e. Tata Sumo bearing registration No.MH-31 H-5869 owned by the respondent No.2 and he died on 06.12.1997, as a result of the vehicle turning turtle. The Tribunal has held that the dependents of the deceased are entitled for compensation even though the deceased died because of his own negligence resulting in occurring of an accident. This appeal is by the Insurance Company only and not by the owner of the vehicle.

2. Shri Kukday, the learned counsel appearing for the appellant - insurance company has urged that the claim under Section 166 of the Motor Vehicles Act, at the instance of the dependents of the deceased driver of the insured vehicle dying because of his own rash and negligent driving, is not covered. He further submits that the Tribunal has committed an error in holding that the deceased was employed as a driver by the respondent No.3, the owner of the vehicle in question i.e. Tata Sumo bearing registration No.MH-31 H-5869.He further submits that the deceased was a friend of the son of the respondent No.3 and his risk was not covered by the policy in question relied upon by the claimants. He further submits that there is no evidence on record to show that the deceased was a paid driver and was getting monthly salary of Rs.2000/- as has been fixed by the Tribunal. He has further urged that the Tribunal has committed an error in granting penal interest at the rate of 12% per annum from the date of petition till its realization upon failure of the appellant to deposit the amount of compensation within a period of 45 days from the date of judgment.

3. None appears for the respondents and on the basis of the submissions made the following points fall for the determination in this matter:

Sr. No. Points Findings
1. Whether the Tribunal has committed an error in holding that the deceased Nazir Beg was employed by the respondent No.3 the owner of the vehicle i.e. Tata Sumo bearing registration No.MH-31 H-5869 ? Yes
2. Whether the Tribunal committed an error in holding that the deceased was getting monthly salary of Rs.2000/-? Yes
3. Whether in the facts and circumstances of this case the claim petition under Section 166 at the instance of the dependents of the deceased was maintainable for compensation on account of death of the deceased caused due to his own rash and negligent driving ? No
4. Whether the Tribunal committed an error in awarding penal interest at the rate of 12% per annum from the date of filing of the petition till its realization, upon failure to deposit the amount of compensation within a period of 45 days from the date of judgment ? Does not survive, in view of findings on earlier points

4. As to point Nos. [i] and [ii]: The burden of proof to establish the fact of employment of the deceased with the respondent No.3 on monthly salary of Rs.2000/- lies upon the claimants. The claimants have specifically averred in paragraph 22 of the claim petition that on 06.12.1997 at about 12:00 p.m. (which is the date and time of the accident). The deceased was in the employment of the owner of the vehicle to ply the said Tata Sumo bearing registration No.MH-31 H-5869 on monthly salary of Rs.2000/- and was driving the vehicle under the authority and permission of the owner. The owner has filed written statement and has denied his averment. The Insurance Company also denied this fact by filing written statement. The mother of the deceased entered the witness box and has stated that the deceased was a driver of the vehicle and was getting monthly salary of Rs.2000/from the owner. Except this, there is no other evidence placed on record to show that the deceased was employed as driver on the Tata Sumo bearing No.MH-31 H-5869, owned by the respondent No.3. This witness has stated in her cross-examination, at the instance of the Insurance Company and also of the owner of the vehicle that the son of the owner was a friend of the deceased and she has not produced any document showing her son's employment with the owner of the vehicle. The fact that the deceased was driving vehicle in question at the time of an accident is not disputed. There is no document produced showing monthly salary of the deceased, if he was employed. The respondent No.3, the owner of the vehicle has not entered the witness box to depose. In the light of these pleadings and evidence on record, the Tribunal has committed an error in relying upon the sole testimony of the complainant which is not corroborated or supported by any documentary or oral evidence brought on record, to hold that the deceased was employed as a driver by the owner on monthly salary of Rs.2000/- on the vehicle Tata Sumo No.MH-31 H-5869. The finding to that effect recorded by the Tribunal cannot therefore, be sustained. The findings on point Nos. [i] and [ii] are therefore, answered in the affirmative.

5. As to point No. [iii]: Shri Kukday, the learned counsel appearing for the appellant has relied upon several decisions of the Apex Court for the proposition that claim petition under Section 166 of the Motor Vehicles Act, at the instance of the dependents of the deceased driver of the insured vehicle dying because of his own rash and negligent driving, is not covered. In the judgment of the Apex Court in the case of Dhanraj v. New India Assurance Co. Ltd. and another reported in (2004) 8 SCC 553 : [2004(5) ALL MR 1195 (S.C.)], the question considered by the Apex Court was, whether a comprehensive policy would cover the risk of injury to the owner of the vehicle also. On facts it was held that it has not been shown that the policy covered any risk for injury to the owner himself. In paragraphs 8 and 9 of the judgment, it has been held are as under:

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.

9. In the case of Oriental Insurance Co. Ltd. v. 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.

It is thus, apparent that where the comprehensive 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 person 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. 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 the property. Where the insured i.e. an owner of the vehicle has no liability to a third party the insurance company has no liability also.

6. The Apex Court in its decision in the case of Oriental Insurance Co. Ltd. v. Jhuma Saha (Smt.) and others reported in 2007 (9) SCC 263 : [2007 ALL SCR 906], was considering a question whether the deceased himself being negligent, the claim petition under Section 166 of the Motor Vehicles Act, would be maintainable. Paragraphs 10 and 11 of the said decision being relevant are reproduced below:

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.

11. Liability of the insurer 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 of 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.

It is thus, apparent from the aforesaid decision that if the deceased himself is to be blamed for the accident without involving the motor vehicle other than the one which he was driving, there is no liability of the owner of the vehicle who is not a tort-feasor and consequently, the insurance company also cannot be held liable.

7. In the decision of the Apex Court in the case of United India Insurance Co. Ltd. vs. Davinder Singh reported in (2007) 8 SCC 698 : [2008(1) ALL MR 463 (S.C.)], it has been held in paragraphs 10 and 16 are as under:

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 borne in mind as regards the statutory liability of the insurer visavis 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.

16. Different considerations would arise in a case of this nature, as the Consumer Forum established under the Consumer Protection Act, 1986 was concerned only with a question as to whether there was deficiency of service on the part of the appellant or not. A right on the part of the insurance company not to pay the amount of insurance would depend upon the facts and circumstances of each case. It in certain situation may be bound to pay the claim made by the third party; if the same is filed before a forum created under the Motor Vehicles Act. But defence may be held to be justified before a different forum where the question raised is required to be considered in a different manner.

The statutory liability of an Insurance Company is held to be restricted to the damage caused to a third party, as a result of rash and negligent driving of an insured vehicle. The 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, but 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 right on the part of the insurance company not to pay the amount of insurance would depend upon the facts and circumstances of each case. It in certain situation, may be bound to pay the claim made by the third party; in the forum created under the Motor Vehicles Act. But it may justify its defence before a different forum where the question raised is required to be considered in a different manner. Under Section 166 of the Motor Vehicles Act, the negligence on the part of the driver of the offending vehicle is required to be proved resulting in an injury being caused to a third person.

8. On the basis of the ratio of the aforesaid decisions the following principles can be laid down:

(a) Under Section 166 of the Motor Vehicles Act, the negligence on the part of the driver of the offending vehicle is required to be proved resulting in an injury being caused to a third person, which will attract the liability of the insurance company to indemnify the owner of the vehicle.

(b) Where the insured i.e. an owner of the vehicle has no liability to a third party or the owner is not the tort feasor, the insurance company has also no liability.

(c) If the deceased himself is to be blamed for the accident without involving the motor vehicle other than the one which he was driving, there is no liability of the insurance company to indemnify such risk unless it is covered by the terms of the contractual policy.

(d) The question as to maintainability of an application under Section 166 of the Motor Vehicles Act to enforce the contractual liability in respect of the owner of the vehicle would depend upon the facts and circumstances of each case, and there cannot be any straight jacket formula, to hold that the claim is required to be tried in the different forum.

9. In the present case, the driver of Tata Sumo has died because of his own negligence without involvement of any other vehicle. He cannot therefore, said to be a third party whose risk is covered under the statutory or an Act policy, I have gone through the policy in question, which is comprehensive in nature and covers the liability of the paid Driver/Workman No.1. I have already recorded the finding that the Tribunal has committed an error in holding that the deceased was employed as a driver on the vehicle in question by the respondent No.3. There is no finding recorded by the Tribunal that the deceased was a paid driver or workman The undisputed fact is that the deceased himself was driving the vehicle in question. In such a situation, the deceased steps into the shoes of the owner of the vehicle. The policy in question does not cover the risk of the owner and of an unpaid driver. It covers the risk of the paid driver only. The deceased was a friend of the son of the owner and had borrowed the vehicle in question. In the facts and circumstances of this case, the claim petition under Section 166, at the instance of the dependents of the deceased against the Insurance Company was not maintainable.

10. In view of the findings recorded on point Nos. [i], [ii] and [iii], the point for determination at serial No. [iv] does not survive.

11. In the result, the appeal is allowed. The judgment and order dated 27.03.2003 passed by the Motor Accident Claims Tribunal at Nagpur in Claim Petition No.575 of 2002 is quashed and set aside to the extent it holds the Insurance Company liable to pay compensation jointly and severally along with the owner of the vehicle. The claim petition is dismissed against the Insurance Company only. Since the appeal is not by the owner of the vehicle, the Award passed by the Tribunal against the owner is not touched. If the appellant has deposited the amount, the same shall be permitted to be withdrawn by the appellant along with interest if any accrued thereon.

Ordered accordingly.