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IN THE HIGH COURT OF , BENCH

DATED THIS THE 18 TH DAY OF JUNE, 2014

BEFORE

THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY

MISCELLANEOUS FIRST APPEAL NO.30568/2008 (MV)

BETWEEN:

The Branch Manager ICICI Lombard General Insurance Company Limited , now by Manager Legal ICICI Lombard, GIC Limited, II Floor Bellad & Company, Gokul Road, … APPELLANT

(Shri C. S. Kalburgi and Smt Saroja S. Patil, Advocates)

AND:

1. Rajshekhar S/o. Chandarshekhar Masuti Aged 52 years, Occupation: Business R/o. Bijapur, now R/o. Tq: Akkalkot, Dist:

2. Shobha Rajshekhar Masuti Age: 25 years, Occupation: Household 2

R/o. Bijapur, now R/o. Maindargi Tq: Akkalkot, Dist: Solapur

3. Mallinath Rajshekhar Masuti Age: 22 years, Occupation: Business R/o. Bijaupr, now R/o. Maindargi Tq: Akkalkot, Dist: Solapur

4. Sunita Rajshekhar Masuti Age: 20 years, Occupation: Household R/o. Bijapur, now R/o. Maindargi Tq: Akkalkot, Dist: Solapur

5. Jyoti Rajshekhar Masuti Age: 18 years, Occupation: Student Represented by Petitioner No.1 R/o. Bijapur, now R/o. Maindargi Tq: Akkalkot, Dist: Solapur

6. Dharmanna Shivanna Koli Age: 47 years, Occupation: Owner of Motor cycle Bearing No.MH-13-AE-5745 R/o A/p Maindargi Taluk: Akkalkot Dist: Sholapur. … RESPONDENTS

(Shri D. P. Ambekar, Advocate for Respondent Nos.1 and 2, Respondent Nos.3 to 6 are served)

This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act, 1988 against the Judgement and Award dated 24.07.2008 passed in MVC No. 141/2008 on the 3

file of the Member MACT-VI, Bijapur partly allowing the claim petition for compensation of Rs.3,69,500/- with interest at 6% per annum from the date of petition till payment.

This appeal coming on for Hearing this day, the Court delivered the following:

JUDGMENT

Heard the learned counsel for the appellant and the learned counsel for the respondents. The appellant is said to be the Insurance Company which has insured a two wheeler under, what is known as a package policy, which is also considered as a comprehensive policy. The respondents are said to be claimants who had claimed compensation before the Motor accident Claims Tribunal in the following circumstances:

It is the case of the respondents that on 09.10.2005 respondent No.1 and his wife Mangala were proceeding on a motor cycle bearing No.MH-13/AE-5745 from Akkalkot towards Solapur and when they were 3 kilometers away from

Akkalkot, it is stated that the motor cycle skidded and as a 4

result of the same, Mangala who was riding pillion, had fallen off the motor cycle and sustained grievous injuries to her head.

Though she was immediately rushed to a hospital and she was under treatment for 15 days, she succumbed to the injuries on

23.10.2005. It is in this background that the husband of

Mangala who was also said to be the rider of the motor cycle which had met with the accident and who is respondent No.1 herein along with his major children, had preferred a claim petition invoking Section 163A of the Motor Vehicles Act,

1988 (Hereinafter referred to as the ‘MV Act’) seeking compensation. Though the same was contested by the appellant herein, the Tribunal has awarded a compensation of

Rs.3,69,500/-. It is that, which is under challenge in the present appeal.

2. The learned counsel for the appellant would submit that the rider of the vehicle was not the owner of the vehicle and was not the insured. However, if the rider had borrowed the 5

insured vehicle from the owner, he had stepped into the shoes of the owner and could not be the claimant if the accident had been caused on account of his own negligence or the rider having lost control over the vehicle and the pillion rider in respect of whose death the compensation was sought to be claimed, if had joined the rider at her own risk, her death cannot be characterized as the death caused to a third party as she would not be a third party in so far as the contract of insurance between the insured and the Insurance Company is concerned.

As the pillion rider also steps into the shoes of the owner in riding the vehicle, albeit as a pillion rider, the liability invoked in terms of Section 163A of the MV Act notwithstanding that the negligence or otherwise of the persons involved was not relevant, the fact remains that it would require the involvement of the owner and a victim. In the present case on hand, if the rider had stepped into the shoes of the owner and has caused accident resulting in the death of a pillion rider, the pillion rider also is deemed to have stepped into the shoes of the owner as a 6

rider of the vehicle. Hence, on the principle that a tortfeasor also cannot be the claimant would equally apply in respect of any claim set up on the basis of the death of a pillion rider and hence would submit that the award of compensation on the footing that the deceased was a third party and the award having been made would be contrary to law and the contract. It is however conceded that there was an additional premium of

Rs.50/- collected to cover the risk of the owner rider and the limit of liability in view of such collection of premium was however restricted to Rs.1,00,000/- and further though it was always the stand of the Insurance Company that the coverage in such cases do not extend to the pillion rider, which has been subsequently clarified by the Insurance Regulatory and

Development Authority as per Circular dated 16.11.2009 drawing attention to an earlier circular dated 02.06.1986 to the effect that the coverage would extent to a pillion rider in respect of a package policy pertaining to a two wheeler and therefore the learned counsel would concede that in terms of Section 7

163A of the MV Act in terms of the contract of Insurance, the liability in respect of the death of the pillion rider, notwithstanding that she cannot be considered as a third party would be limited to Rs.1,00,000/- and would not dispute the liability of the appellant to that extent. Hence, the learned counsel would submit that the question, whether a person who has borrowed the vehicle from the insured and is either injured or is dead on account of an accident involving the vehicle could claim compensation or such a claim could be raised by the legal representatives of a deceased victim has been answered in

Ningamma and Another vs.United Indian Insurance Company

Limited (2009 AIR SCW 4916) to the effect that such a person cannot be considered as a third party and therefore the Tribunal was not justified in proceeding on the basis that the claim was in respect of the death of a third party having been caused in an accident involving the insured vehicle and accordingly seeks that there be a modification of the judgment and award. 8

3. While the learned counsel for the respondents-claimants would submit that the general principle as to the tortfeasor or a criminal not being permitted to take advantage of his own wrong in claiming compensation could not extend to an accident and in the present case on hand the accident having occurred not on account of a deliberate act on the part of the claimant, the benefit of compensation cannot be denied to the claimants. Further, in so far as the reliance sought to be placed on the judgment of Ningamma’s case rendered by the Apex

Court it is pointed out that in the said judgment there is no reference to the nature of the insurance policy that was involved and therefore the opinion expressed that a person who has borrowed the vehicle from the insured vehicle owner stepping into the shoes of the owner and not being enabled to characterize himself as a third party, cannot be applied to the present case on hand when the admitted circumstance was that there was accident coverage to the owner rider by collection of an additional premium of Rs.50/- and the contention that the 9

liability should be restricted to Rs.1,00,000/- is without reference to any specific provision under the Indian Motor

Tariff. The reliance sought to be placed on an endorsement

GR-36 would not be applicable to two wheelers. On the other hand, IMT-16 which is in respect of private cars and motorized two wheelers prescribes a table where the scale of compensation for death is at 100% and coupled with the circular which has been relied upon by the learned counsel for the appellant for such coverage in respect of the owner rider would extend to the pillion rider as well and therefore the scale of compensation would be 100% and hence it cannot be denied that the claimants were entitled to lay claim for compensation.

Attention is also drawn to a recent decision of the Apex Court in the case of National Insurance Company Vs. Sinita and others (2012 ACJ 1) with regard to an identical contention that a person who was riding a two wheeler was not the owner of the insured vehicle, held therein that it was necessary for the

Insurance Company to establish the relationship between the 10

rider and the owner, to demonstrate that he was not an employee or an agent of the owner in order that the person could be treated as a third party, would also indicate that any rider of the vehicle need not necessarily step into the shoes of the owner and the same analogy would extend to a pillion rider and hence the contention that the rider or a pillion rider cannot be considered as a third party is an argument which is not infalliable with reference to Ningamma’s case for the reasons already stated and hence seeks to justify the judgment and award.

4. The learned counsel for the appellant would however, point out that there is a note appended to GR-36 as well as the table indicating the capital sum insured and with reference to

IMT-16. It is pointed out that the proviso under IMT-16 refers to the compensation that shall be payable under Item Nos.1 to 4 of the table appended to IMT-16 and the scale of compensation in so far as death is concerned, is restricted to a sum to be 11

indicated therein. Though in the proviso to IMT-16 the amount is not mentioned and is found to be blank, GR-36 would indicate that if a premium of Rs.50/- is collected, the capital sum insured in so far as the motorized two wheelers is concerned, is Rs.1,00,000/-. Hence, an additional premium of

Rs.50/- has been collected as seen in the certificate of insurance, the capital sum insured in respect of death of a pillion rider or the owner would be Rs.1,00,000/-and hence the appellant does not deny that the claim to the extent of

Rs.1,00,000/- was maintainable irrespective of whether it was the owner or a pillion rider who was dead. He would submit that a general principle has been laid down in Ningamma’s case and the policy of insurance would not have any bearing thereon, namely, that in order for a person to claim as a third party he may not be the owner of the vehicle or a person who has borrowed the vehicle from the owner. This proposition does not get diluted depending on the nature of the policy. However, as in the present case, the liability may be attracted to the extent 12

of the contractual obligation and that obligation is not denied by the appellant to the extent of Rs.1,00,000/-. Further, the reference to Sinita’s case is out of context, as it is seen that the

Sinita’s case does not refer to Ningamma’s case and a question is addressed for which the answer was to be found in

Ningamma’s case. Hence, the same would not be relevant for the purposes of this case and therefore seeks that the appeal be allowed as prayed for.

5. In the above facts and circumstances, in the usual course, without reference to the contractual obligations, if respondent

No.1 was the rider of the vehicle and if his wife was riding pillion and on account of the vehicle having skidded, if his wife had fallen off the motor cycle, whether the claim for compensation could be laid by the rider himself claiming as a legal representative of the deceased pillion rider is concerned, there would be no hesitation in holding that such a claim would not be sustained and if it was to be contended that the major 13

children of the deceased having been deprived of their mother’s society by virtue of the accident, if a claim for compensation could be laid, would also be answered in the negative, for their claim would be defeated on account of their own father having caused the accident in which their mother had died and the relationship being so intermingled, cannot be dissected to find a ground for claim of compensation by a family member. The argument that the general principle as to a tortfeasor not being enabled to claim compensation in respect of his own act being diluted if it was an accident and that a person who has been involved in the accident would not be a tortfeasor or a criminal and therefore he ought to be placed on a separate pedestal, also does not merit consideration. There is no such distinguishing feature to draw the line between a deliberate act and an accident.

6. In so far as the second aspect, as to whether a rider who was not the owner of the insured vehicle and claim himself to 14

be a third party in laying claim for compensation by virtue of injury sustained or whether his legal representatives could lay claim for compensation on the ground that the rider was not the owner of the vehicle and was a third party in so far as the contract of insurance was concerned, and hence could yet claim compensation has been clearly answered in Ningamma’s case.

That has not been over ruled or diluted in Sinita’s case. The question incidentally considered in Sinita’s case would not be a question if attention had been drawn to Ningamma’s case. This

Court would follow Ningamma’s case in holding that it cannot be said that a rider who was not the owner of the insured vehicle or a pillion rider accompanying such a rider could claim as third parties in laying a claim for compensation under the

MV Act. Section 163A of the MV Act clearly contemplates that the owner and the victim are two distinct persons. If the borrower of the vehicle steps into the shoes of the owner and so also the pillion rider, then the claimant and the owner become one which is not a circumstance which can be countenanced in 15

addressing a claim for compensation. Therefore, in the present case on hand, de hors the contractual liability, the claim for compensation was wholely misplaced and could not have been entertained. The liability however in so far as owner rider or the pillion rider is concerned, is admitted to the extent that there is an additional premium collected towards the risk of the owner rider and extending to the pillion rider. It is only under this contractual obligation that the insurer would be liable to the extent of Rs.1,00,000/- as demonstrated by the learned counsel for the appellant. Therefore, the Tribunal was not justified in granting compensation in the manner in which it has addressed the claim having regard to the limit of liability as rightly pointed out by the learned counsel for the appellant.

Accordingly, the judgment and award of the Tribunal stands modified to hold that the claimants were entitled to only

Rs.1,00,000/- with interest at 6% from the date of claim petition till the date of payment. 16

The amount in deposit be remitted to the Tribunal for the benefit of the respondents-claimants to the extent of

Rs.1,00,000/-.

Sd/- JUDGE swk