RAMKHILADI & ANR. versus THE UNITED INDIA INSURANCE COMPANY & ANR.

[2020] 1 S.C.R. 19

RAMKHILADI & ANR.

THE UNITED INDIA INSURANCE COMPANY & ANR.

(Civil Appeal No. 9393 of 2019)

JANUARY 07, 2020

[ASHOK BHUSHAN AND M. R. SHAH, JJ.]

Motor Vehicles Act, 1988 – s. 163A – Claim under – Victimwas travelling on motorcycle and met an accident – Victim died –As per claimants, the accident occurred on account of rash andnegligent driving of the driver of another motorcycle – Claim Petitionu/s. 163A of the Act filed by the appellants against the owner of thevehicle on which victim/deceased was travelling and its insurancecompany – Neither the driver nor the owner or the insurancecompany of another motorcycle were joined as opponents in theclaim petition – Tribunal held insurance company liable to paycompensation of Rs. 3,67,000/- u/s. 163A of the Act – The HighCourt set aside the Judgment and award passed by the Tribunaland dismissed the claim petition – On appeal, held: There was nospecific finding whether the deceased-driver was in employment ofthe opponent-owner or not – Even otherwise, no evidence was ledby the claimants to prove that the deceased-driver was in employmentof the opponent-owner – Under the circumstances, the deceased-driver cannot be said to be in employment of the opponent-ownerand therefore, can be said to be permissible user and/or borrowerof the motor vehicle – Applying the law laid down by the SupremeCourt in the case of Ningamma v. United India Insurance Co. Ltdand as the deceased-driver had stepped into the shoes of the ownerof the vehicle, as rightly held by the High Court the claim petitionu/s. 163A of the Act against the owner and insurance company ofthe vehicle, borrowed by the deceased, shall not be maintainable –Further, liability of the insurance company would be as per theterms and conditions of the contract of insurance – And as per thecontract of insurance, in case of personal accident the owner-driveris entitled to sum of Rs. 1 lakh – Therefore, the deceased, whowould be in the shoes of the owner shall be entitled to sum of Rs.1 lakh, as per the contract of insurance.

20SUPREME COURT REPORTS

APartly allowing the appeal, the Court

HELD : 1. While answering the finding recorded by theTribunal on Issue No. 2 i.e. whether the driver was driving thesaid vehicle being in the employment of vehicle owner oppositeparty No. 1 in his interest or with his permission/knowledge? itBappears that, as such, the Tribunal has not at all answered theaforesaid issue. While answering Issue No. 2, there is no specificfinding whether the deceased-driver was in employment of theopponent-owner or not. Even otherwise, no evidence is led bythe claimants to prove that the deceased-driver was inemployment of the opponent-owner. Despite the above, whileCanswering Issue No. 4 there is some observation made by theTribunal that the deceased-driver was in employment of theopponent-owner, which is not supported by any evidence onrecord. Under the circumstances, the deceased-driver cannotbe said to be in employment of the opponent-owner and,Dtherefore, he can be said to be permissible user and/or borrowerof motor vehicle owned by the opponent-owner. With thesefindings, the main question posed for consideration of this Courtreferred to hereinabove is required to be considered. [Paras 2.1and 5.3] [32-B-D]E2. An identical question came to be considered by this Courtin the case of Ningamma, In that case, the deceased was drivinga motorcycle which was borrowed from its real owner and metwith an accident by dashing against bullock cart i.e. withoutinvolving any other vehicle. The claim petition was filed underSection 163A of the Act by the legal representatives of theFdeceased against the real owner of the motorcycle which wasbeing driven by the deceased. To that, this Court has observedand held that since the deceased has stepped into the shoes ofthe owner of the vehicle, Section 163A of the Act cannot applywherein the owner of the vehicle himself is involved.GConsequently, it was held that the legal representatives of thedeceased could not have claimed the compensation under Section163A of the Act. Therefore, as such, in the present case, theclaimants could have even claimed the compensation and/or filedthe claim petition under Section 163A of the Act against the driver,

owner and insurance company of the offending vehicle i.e. anothermotorcycle being third party with respect to the offendingvehicle. However, no claim under Section 163A was filed againstthe driver, owner and/or insurance company of that offendingmotorcycle. It is an admitted position that the claim under Section163A of the Act was only against the owner and the insurancecompany of the motorcycle which was borrowed by the deceasedfrom the opponent-owner. Therefore, applying the law laid downby this Court in the case of Ningamma, and as the deceased hasstepped into the shoes of the owner of the vehicle, which wasborrowed, as rightly held by the High Court, the claim petitionunder Section 163A of the Act against the owner and insurancecompany of the said vehicle shall not be maintainable. [Para 5.4][32-E-H; 33-A-B]

3. It is true that, in claim under Section 163A of the Act,there is no need for the claimants to plead or establish thenegligence and/or that the death in respect of which the claimpetition is sought to be established was due to wrongful act,neglect or default of the owner of the vehicle concerned. It isalso true that the claim petition under Section 163A of the Act isbased on the principle of no fault liability. However, at the sametime, the deceased has to be third party and cannot maintain aclaim under Section 163A of the Act against the owner/insurer ofthe vehicle which is borrowed by him as he will be in the shoes ofthe owner and he cannot maintain claim under Section 163A ofthe Act against the owner and insurer of the vehicle. In thepresent case, the parties are governed by the contract ofinsurance and under the contract of insurance the liability of theinsurance company would be qua third party only. In the presentcase, the deceased cannot be said to be third party with respectto the insured vehicle. There cannot be any dispute that theliability of the insurance company would be as per the terms andconditions of the contract of insurance. As held by this Court inthe case of Dhanraj, an insurance policy covers the liabilityincurred by the insured in respect of death of or bodily injury toany person (including an owner of the goods or his authorizedrepresentative) carried in the vehicle or damage to any propertyof third partycaused by or arising out of the use of the vehicle.

22SUPREME COURT REPORTS

AIn the said decision, it is further held by this Court that Section147 does not require an insurance company to assume risk fordeath or bodily injury to the owner of the vehicle. [Para 5.5][33-C-G]

4. In view of the above and for the reasons stated above, inBthe present case, as the claim under Section 163A of the Act wasmade only against the owner and insurance company of the vehiclewhich was being driven by the deceased himself as borrower ofthe vehicle from the owner of the vehicle and he would be in theshoes of the owner, the High Court has rightly observed andheld that such claim was not maintainable and the claimantsCought to have joined and/or ought to have made the claim underSection 163A of the Act against the driver, owner and/or theinsurance company of the another offending vehicle being thirdparty to the said vehicle. [Para 5.6] [33-H; 34-A-B]

Ningamma v. United India Insurance Co. Ltd. (2009)D13 SCC 710 : [2009] 8 SCR 683 – relied on.

Naveen Kumar v. Vijay Kumar (2018) 3 SCC 1 : [2018]2 SCR 572 – held inapplicable.

Reshma Kumari v. Madan Mohan (2013) 9 SCC 65 :E[2013] 2 SCR 706 ; Jitender Trivedi v. Kasam Daud(2015) 4 SCC 237 : [2015] 2 SCR 120 ; New IndiaAssurance Co. Ltd. v. Sadanand Mukhi (2009) 2 SCC417 : [2008] 17 SCR 1313 ; Dhanraj v. New IndiaAssurance Co. Ltd. (2004) 8 SCC 553 : [2004] 4 Suppl.SCR 711 ; Oriental Insurance Co. Ltd. v. Rajni DeviF(2008) 5 SCC 736 : [2008] 6 SCR 822 ; NationalInsurance Co. Ltd. v. Ashalata Bhowmik (2018) 9 SCC801 : [2018] 10 SCR 871 ; Oriental Insurance Co. Ltd.v. Jhuma Saha (2007) 9 SCC 263 : [2007] 1 SCR 979 ; National Insurance Co. Ltd. v. Laxmi Narain DhutG(2007) 3 SCC 700 : [2007] 3 SCR 579 ; Premkumariv. Prahlad Dev (2008) 3 SCC 193 : [2008] 1 SCR 874– referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9393of 2019.

From the Judgment and Order dated 10.05.2018 of the High Courtof Judicature for Rajasthan, Jaipur Bench, Jaipur in S.B. Civil Misc.Appeal No. 2614 of 2009.

Abhishek Gupta, Adv. for the Appellants.

Amit Kumar Singh, Mrs. K. Enatoli Sema, Gaurav Prakash,Akshay Sharma, Advs. for the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned Judgmentand Order dated 10.05.2018 passed by the High Court of Judicature forRajasthan at Jaipur in SBCMA No. 2614 of 2009, by which the HighCourt has allowed the said appeal preferred by the respondent-insurancecompany by quashing and setting aside the Judgment and Award passedby the learned Motor Accident Claims Tribunal and consequently hasdismissed the claim petition preferred by the original claimants, the originalclaimants have preferred the present appeal.

24SUPREME COURT REPORTS

A2. The facts leading to the present appeal in nutshell are as under:2.1 That in vehicular accident which occurred on 02.10.2006,one Chotelal alias Shivram died. The deceased was travelling onmotorcycle bearing registration No. RJ 02 SA 7811. At this stage, it isrequired to be noted that, even as per the claimants, the accident occurredBon account of rash and negligent driving of the driver of anothermotorcycle bearing registration No. RJ 29 2M 9223. That the appellantsherein filed claim petition before the Motor Accident Claims Tribunal,Laxmangarh (Alwar), Rajasthan (hereinafter referred to as the learnedTribunal) under Section 163A of the Motor Vehicles Act (hereinafterreferred to as the Act). At this stage, it is required to be noted that theCclaim petition was preferred only against the owner of the motorcyclebearing registration No. RJ 02 SA 7811 and its insurance company. Neitherthe driver nor the owner or the insurance company of the vehicle bearingregistration No. RJ 29 2M 9223 were joined as opponents in the claimpetition. Therefore, as such, no claim petition was filed against the driver,Downer and the insurance company of the vehicle involved in the accidenti.e. motorcycle bearing registration No. RJ 29 2M 9223. That an objectionwas raised by the respondent-insurance company-insurer of motorcyclebearing registration No. RJ 02 SA 7811 that as according to the claimantsand even so stated in the FIR, the driver of the motorcycle bearingregistration No. RJ 29 2M 9223 was rash and negligent and the claimantsEhave not filed the claim petition against the owner of the said vehicle, theclaim petition is required to be dismissed against the insurance companyof the motorcycle bearing registration No. RJ 02 SA 7811. The learnedTribunal framed the following issues:

1.Whether accident was caused on 02.10.2006 by driverFChhotelal alias Shivram driving Motorcycle RJ 02 SA7811 vehicle in question in rash and negligent manner?

2.Whether the driver was driving the said vehicle being inthe employment of vehicle owner opposite party No. 1Bhagwan Sahay in his interest or with his permission/Gknowledge?

3.Consequent to occurring death of Chhotelal alias Shivram(driver) in the alleged accident, how much valid amountand in what manner, the applicants are entitled to getand from which opposite parties?

4.Whether the objections raised in the preliminary/specificstatements are significant, if yes then its effect?

5.Relief?

2.2 On appreciation of evidence, the learned Tribunal answeredIssue Nos. 1 and 2 in favour of the claimants and held that the death ofthe deceased Chotelal alias Shivram had occurred from the motorcycleinvolved in the accident and the said motorcycle was insured with therespondent-insurance company, the insurance company is liable to paythe compensation under Section 163A of the Act. Consequently, by theJudgment and Award dated 24.02.2009, the learned Tribunal partlyallowed the said claim petition and awarded total sum of Rs.3,67,000/-as compensation along with the interest @ 6% per annum from thedate of filing of the claim petition till the date of the actual payment2.3 Feeling aggrieved and dissatisfied with the Judgment and Awardpassed by the learned Tribunal holding the insurance company of themotorcycle bearing registration No. RJ 02 SA 7811 liable to pay thecompensation, the respondent-insurance company-insurer of motorcyclebearing registration No. RJ 02 SA 7811 preferred an appeal before theHigh Court. That, by the impugned Judgment and Order, the High Courthas allowed the said appeal and has quashed and set aside the Judgmentand Award passed by the learned Tribunal and consequently has dismissedthe claim petition on the ground that even as per the informant VikramSingh, who lodged the FIR, the accident had occurred on account ofrash and negligent driving by the driver of motorcycle bearing registrationNo. RJ 29 2M 9223, however, the claimants have not filed the claimpetition against the owner of the said vehicle and in fact, the claim petitionshould have been filed by the claimants against the owner of vehiclebearing No. RJ 29 2M 9223 to seek compensation.

2.4 Feeling aggrieved and dissatisfied with the impugned Judgmentand Order passed by the High Court, the original claimants have preferredthe present appeal.

3. Shri Abhishek Gupta, learned advocate appearing on behalf ofthe appellants-original claimants has vehemently submitted that the HighCourt has materially erred in dismissing the claim petition solely on theground that the claimants have not filed the claim petition against theowner of the motorcycle bearing registration No. RJ 29 2M 9223.

A3.1 It is submitted by the learned advocate appearing on behalf ofthe appellants-original claimants that, as such, the High Court has notproperly appreciated the fact that the claim petition preferred by theoriginal claimants was under Section 163A of the Act and, therefore,when the claim petition was preferred under Section 163A of the Act,there is no need for the claimants to plead or establish that the death inBrespect of which the claim petition has been made was due to anywrongful act or neglect or default of owner of vehicle concerned.

3.2 It is further submitted by the learned advocate appearing onbehalf of the appellants-original claimants that the claim petition filed bythe original claimants was based on the principle of no-fault liability. ItCis submitted that the claimants could have elected to file the claim petitioneither under Section 166 read with Section 140 of the Act against theowner/insurer of offending vehicle i.e. RJ 29 2M 9223 on the basis ofthe fault liability or under Section 163A either against the owner/insurerof the vehicle being driven by the deceased at the time of accident i.e.DRJ 02 SA 7811 or against the owner/insurer of offending vehicle i.e. RJ29 2M 9223 on the basis of no-fault liability. It is submitted by thelearned advocate appearing on behalf of the appellants-original claimantsthat, as such, the deceased was not the owner of the vehicle bearingregistration No. RJ 02 SA 7811 and in fact and as observed by thelearned Tribunal, he was in employment of owner of the vehicle No. RJE02 SA 7811 and therefore third party. It is submitted that having electedto prefer the claim under Section 163A of the Act on the principle of no-fault liability against the owner/insurer of the vehicle being driver by thedeceased at the time of the accident i.e. RJ 02 SA 7811, the claim wasperfectly just and maintainable and the learned Tribunal made no errorFin allowing the same. In support of the above, the learned advocateappearing on behalf of the original claimants has heavily relied upon thedecision of this Court in the case of Reshma Kumari v. Madan Mohan(2013) 9 SCC 65.3.3 Learned counsel appearing on behalf of the original claimantsGhas further submitted that Section 163A of the Act has to be interpretedin keeping with the intention of the Legislature and the social perspectiveit seeks to achieve. It is provision which is beneficial in nature and ithas been enacted as measure of social security. It is submitted thatSection 163A of the Act commences with “non-obstante” clause.Liability to pay the compensation is on “owner of the motor vehicle” orH

“the authorized insurer”. It is submitted that the word “owner” hasbeen defined under Section 2(30) to mean “a person in whose name amotor vehicle stands registered, and where such person is minor, theguardian of such minor, and in relation to motor vehicle which is thesubject of hire-purchase, agreement or an agreement of lease or anagreement of hypothecation, the person in possession of the vehicle underthat agreement.” It is submitted that having regard to the said definitionof “owner”, this Court in Naveen Kumar v. Vijay Kumar (2018) 3SCC 1 has held the registered owner of the vehicle as per the registeringauthority liable in respect of the offending vehicle despite sale/purchaseof vehicle by him. It is submitted that, in paragraph 6, it is held that theperson in whose name the motor vehicle stands registered is the ownerof the vehicle for the purpose of the Act.

3.4 It is further submitted by the learned counsel appearing onbehalf of the appellants-original claimants that for claiming thecompensation under Section 163A of the Act, the claimants are onlyrequired to prove that the death or permanent disablement is as resultof the accident arising out of the use of motor vehicle and it will coverthose who are themselves driving vehicle, the passengers and alsopedestrians. It is submitted that in an application under Section 163A ofthe Act, fault of the owner of the vehicle or vehicles concerned or ofany other person need not be established.

3.5 It is further submitted by the learned counsel appearing onbehalf of the appellants-original claimants that, therefore, as the presentclaim premised on the no-fault liability under Section 163A of the Act bythe legal heirs of the deceased, the same was maintainable against theowner and insurer of the motor vehicle which was being driven by him,more particularly, when the deceased was not the owner of the vehicleand that respondent No. 2 was the registered owner of the concernedvehicle and, therefore, the insurance company cannot be absolved fromits liability to pay the compensation as awarded by the learned Tribunal.

3.6 Making the above submissions, it is prayed to allow the presentappeal and quash and set aside the impugned Judgment and Order passedby the High Court and to restore the Judgment and Award passed by thelearned Tribunal holding the owner of the vehicle bearing registrationNo. RJ 02 SA 7811 and the insurer of the said vehicle to pay thecompensation.

A3.7 It is further submitted by the learned counsel appearing onbehalf of the appellants-original claimants that, as such, the amount ofcompensation awarded by the learned Tribunal i.e. Rs.3,67,000/- shouldbe enhanced to Rs.5,00,000/- with interest as awarded by the learnedTribunal in light of the fact that the 2[nd] Schedule to the Motor VehicleAct has been amended with effect from 22.05.2018 and fixedBcompensation of Rs.5,00,000/- has been specified in the case of death.It is submitted that this Court has enhanced the compensation even inthose cases wherein no appeal for enhancement has been preferredagainst the order of the Tribunal. In support thereof, the learned counselappearing on behalf of the original claimants has relied upon the decisionCof this Court in the case of Jitender Trivedi v. Kasam Daud (2015) 4SCC 237.

4. The present appeal is vehemently opposed by Shri Amit KumarSingh, learned advocate appearing on behalf of the respondent-insurancecompany.

4.1 It is submitted by the learned advocate appearing on behalf ofthe respondent-insurance company that, in the present case, the deceasedborrowed the motorcycle bearing registration No. RJ 02 SA 7811 fromthe registered owner Bhagwan Sahay. It is submitted that anothermotorcycle bearing registration No. RJ 29 2M 9223 which was driven inEa rash and negligent manner came and hit the motorcycle on which thedeceased was travelling. It is submitted that the FIR was lodged againstthe owner of motorcycle bearing registration No. RJ 29 2M 9223. It isthus clear that the insured vehicle on which the deceased was travellingi.e. RJ 02 SA 7811 was not negligent. It is submitted that, in the presentcase, the claimants of the deceased filed an application under SectionF163A of the Act and sought compensation only from the owner of theinsured vehicle i.e. RJ 02 SA 7811. It is submitted that the learned Tribunalwithout any evidence on record has concluded that the deceased wasworking under the employment of the registered owner. It is submittedthat, therefore, in the facts and circumstances of the case, the HighGCourt has rightly allowed the appeal preferred by the insurer by observingthat the claimants ought to have filed the claim petition against the ownerof the vehicle bearing registration No. RJ 29 2M 9223. In support ofimpugned Judgment and Order passed by the High Court, learnedadvocate appearing on behalf of the insurance company has made thefollowing submissions:H

(i) That the deceased was not third party with respect to theinsured vehicle. He was third party with respect to the motorcyclebearing registration No. RJ 29 2M 9223;

(ii) That the claimants when failed to claim the compensation fromthe owner of the motorcycle bearing registration No. RJ 29 2M 9223,cannot be permitted, as the driver of the said motorcycle, to claimcompensation from the owner of the vehicle bearing registration No. RJ02 SA 7811;

(iii) That under the Motor Vehicles Act, only the third party claimsare payable;

(iv) That in the present case, the deceased was not third partygiven that he had borrowed the vehicle from the registered owner ShriBhagwan Sahay Meena;

(v) That in the case of Ningamma v. United India InsuranceCo. Ltd. (2009) 13 SCC 710 and New India Assurance Co. Ltd. V.Sadanand Mukhi (2009) 2 SCC 417, this Court has held that the ownerof the vehicle or his legal representatives or the borrower of the vehiclecannot raise claim for an accident in which there was no negligenceon the part of the insured vehicle. It is submitted that in the aforesaiddecisions, this Court has held that the borrower of the vehicle steps intothe shoes of the owner and, therefore, the borrower of the vehicle or hislegal representatives are not entitled to compensation from the insurerunder the Act. It is submitted that the deceased in the present case hasstepped into the shoes of the owner and therefore not entitled to anythird party compensation from the insured vehicle; and

(vi) That in the case of Dhanraj v. New India Assurance Co.Ltd. (2004) 8 SCC 553 it is held by this Court that an insurance policycovers the liability incurred by the insured in respect of death of or bodilyinjury to any person (including an owner of the goods or his authorizedrepresentative) carried in the vehicle or damage to any property of athird partycaused by or arising out of the use of the vehicle. It isfurther held that Section 147 does not require an insurance company toassume risk for death or bodily injury to the owner of the vehicle.

4.2 It is further submitted by the learned advocate appearing onbehalf of the insurance company that in the present case the contract ofinsurance specifically provides that in case of personal accident the owner

Acum driver is only entitled to sum of Rs.1 Lakh. It is submitted thattherefore the deceased who had stepped into the shoes of the owner atthe most may be entitled to sum of Rs.1 Lakh only. It is submitted thatin the case of Oriental Insurance Co. Ltd. V. Rajni Devi (2008) 5SCC 736 when the compensation is claimed for the death of the owneror another passenger of the vehicle, the contract of insurance beingBgoverned by the contract qua contract, the claim of the insurance companywould depend upon the terms thereof. It is submitted that, in the saiddecision, this Court did not accept the view taken by the Tribunal thatwhile determining the amount of compensation, the only factor whichwould be relevant would be merely the use of the motor vehicle. It isCsubmitted that, in the aforesaid decision, in paragraph 11, it is furtherobserved by this Court that the liability under Section 163A of the Act ison the owner of the vehicle as person cannot be both, claimant asalso recipient.

4.3 Relying upon the decision of this Court, in the case of NationalDInsurance Co. Ltd. V. Ashalata Bhowmik (2018) 9 SCC 801, it issubmitted that the parties shall be governed by the terms and conditionsof the contract of insurance. It is submitted that, therefore, at the most,the claimants may be entitled to Rs. 1 lakh only, the deceased being inthe shoes of the owner.

E4.4 Now, so far as the submission on behalf of the appellants-original claimants that there is an amendment to the 2[nd] Schedule, and afixed compensation of Rs.5 lakhs has been specified in the case of deathand, therefore, the claimants shall be entitled to Rs.5 lakhs, it is vehementlysubmitted by the learned advocate appearing on behalf of the insurancecompany that the said amendment shall not be applicable retrospectively.FIt is submitted that, in the present case, the accident had taken place inthe year 2006 and even the Judgment and Award was passed by thelearned Tribunal in the year 2009, and the impugned Judgment and Orderhas been passed by the High Court on 18.02.2018, i.e. prior to theamendment in the 2[nd] Schedule.G4.5 Making the above submissions, it is prayed to dismiss thepresent appeal and/or partly allow the appeal to the extent of Rs.1 Lakhas per the terms and conditions of the contract of insurance.

5. Heard learned counsel appearing on behalf of the respectiveparties at length. We have also perused and considered the JudgmentH

and Award passed by the learned Tribunal as well as the impugnedJudgment and Order passed by the High Court and the evidence onrecord. The short question which is posed for consideration of thisCourt is whether, in the facts and circumstances of the case and in acase where the driver, owner and the insurance company of anothervehicle involved in an accident and whose driver was negligent are notjoined as parties to the claim petition, meaning thereby that no claimpetition is filed against them and the claim petition is filed only againstthe owner and the insurance company of another vehicle which wasdriven by the deceased himself and the deceased being in the shoes ofthe owner of the vehicle driven by himself, whether the insurancecompany of the vehicle driven by the deceased himself would be liableto pay the compensation under Section 163A of the Act?; Whether thedeceased not being third party to the vehicle No. RJ 02 SA 7811 beingin the shoes of the owner can maintain the claim under Section 163A ofthe Act from the owner of the said vehicle?5.1 The learned Tribunal held that even in absence of the driver,owner and the insurance company of another vehicle involved in anaccident and whose driver was solely negligent, the application underSection 163A of the Act would be maintainable against the owner andthe insurance company of the vehicle which was driven by the deceasedhimself, firstly on the ground that the deceased was in employment ofthe owner of the vehicle which was driven by him and secondly, in anapplication under Section 163A of the Act, the negligence is not requiredto be established and proved and it is enough to establish and prove thatthe deceased has died in vehicular accident and while driving vehicle.The High Court has not agreed with the same and by the impugnedJudgment and Order has held that as the claimants have not filed theclaim petition against the owner of another vehicle whose driver was infact negligent, even as per the claimants and the claim petition shouldhave been filed by the claimants against the owner of another vehicle toseek the compensation, the application under Section 163A of the Actagainst the insurance company of the vehicle driven by the deceasedhimself is liable to be dismissed.

5.2 While answering the aforesaid question involved in the presentcase, first of all, the findings recorded by the learned Tribunal on IssueNo. 2 is required to be dealt with and considered. The learned Tribunalframed Issue No. 2 to the effect whether the deceased-driver was driving

Athe vehicle-motor cycle bearing registration No. RJ 02 SA 7811 being inemployment of the vehicle owner-opposite party-Bhagwan Sahay in hisinterest or with his permission/knowledge?

5.3 While answering the finding recorded by the learned Tribunalon Issue No. 2, it appears that, as such, the learned Tribunal has not atBall answered the aforesaid issue. While answering Issue No. 2, there isno specific finding whether the deceased-driver was in employment ofthe opponent-owner Bhagwan Sahay or not. Even otherwise, noevidence is led by the claimants to prove that the deceased-driver wasin employment of the opponent-owner Bhagwan Sahay. Despite theabove, while answering Issue No. 4 there is some observation made byCthe learned Tribunal that the deceased-driver was in employment of theopponent-owner Bhagwan Sahay, which is not supported by any evidenceon record. Under the circumstances, the deceased-driver cannot besaid to be in employment of the opponent-owner Bhagwan Sahay and,therefore, he can be said to be permissible user and/or borrower ofDmotor vehicle owned by the opponent-owner Bhagwan Sahay. Withthese findings, the main question posed for consideration of this Courtreferred to hereinabove is required to be considered.

5.4 An identical question came to be considered by this Court inthe case of Ningamma (supra). In that case, the deceased was drivingEa motorcycle which was borrowed from its real owner and met with anaccident by dashing against bullock cart i.e. without involving any othervehicle. The claim petition was filed under Section 163A of the Act bythe legal representatives of the deceased against the real owner of themotorcycle which was being driven by the deceased. To that, this Courthas observed and held that since the deceased has stepped into theFshoes of the owner of the vehicle, Section 163A of the Act cannot applywherein the owner of the vehicle himself is involved. Consequently, itwas held that the legal representatives of the deceased could not haveclaimed the compensation under Section 163A of the Act. Therefore,as such, in the present case, the claimants could have even claimed theGcompensation and/or filed the claim petition under Section 163A of theAct against the driver, owner and insurance company of the offendingvehicle i.e. motorcycle bearing registration No. RJ 29 2M 9223, being athird party with respect to the offending vehicle. However, no claimunder Section 163A was filed against the driver, owner and/or insurancecompany of the motorcycle bearing registration No. RJ 29 2M 9223. It

is an admitted position that the claim under Section 163A of the Act wasonly against the owner and the insurance company of the motorcyclebearing registration No. RJ 02 SA 7811 which was borrowed by thedeceased from the opponent-owner Bhagwan Sahay. Therefore, applyingthe law laid down by this Court in the case of Ningamma (supra), andas the deceased has stepped into the shoes of the owner of the vehiclebearing registration No. RJ 02 SA 7811, as rightly held by the HighCourt, the claim petition under Section 163A of the Act against the ownerand insurance company of the vehicle bearing registration No. RJ 02 SA7811 shall not be maintainable.

5.5 It is true that, in claim under Section 163A of the Act, thereis no need for the claimants to plead or establish the negligence and/orthat the death in respect of which the claim petition is sought to beestablished was due to wrongful act, neglect or default of the owner ofthe vehicle concerned. It is also true that the claim petition under Section163A of the Act is based on the principle of no fault liability. However,at the same time, the deceased has to be third party and cannot maintaina claim under Section 163A of the Act against the owner/insurer of thevehicle which is borrowed by him as he will be in the shoes of the ownerand he cannot maintain claim under Section 163A of the Act againstthe owner and insurer of the vehicle bearing registration No. RJ 02 SA7811. In the present case, the parties are governed by the contract ofinsurance and under the contract of insurance the liability of the insurancecompany would be qua third party only. In the present case, as observedhereinabove, the deceased cannot be said to be third party with respectto the insured vehicle bearing registration No. RJ 02 SA 7811. Therecannot be any dispute that the liability of the insurance company wouldbe as per the terms and conditions of the contract of insurance. As heldby this Court in the case of Dhanraj (supra), an insurance policy coversthe liability incurred by the insured in respect of death of or bodily injuryto any person (including an owner of the goods or his authorizedrepresentative) carried in the vehicle or damage to any property of athird partycaused by or arising out of the use of the vehicle. In thesaid decision, it is further held by this Court that Section 147 does notrequire an insurance company to assume risk for death or bodily injuryto the owner of the vehicle.

5.6 In view of the above and for the reasons stated above, in thepresent case, as the claim under Section 163A of the Act was made only

Aagainst the owner and insurance company of the vehicle which wasbeing driven by the deceased himself as borrower of the vehicle fromthe owner of the vehicle and he would be in the shoes of the owner, theHigh Court has rightly observed and held that such claim was notmaintainable and the claimants ought to have joined and/or ought to havemade the claim under Section 163A of the Act against the driver, ownerBand/or the insurance company of the offending vehicle i.e. RJ 29 2M9223 being third party to the said vehicle.

5.7 Now, so far as the reliance placed upon by the learned Advocatefor the claimants on the decision of this Court in the case of NaveenKumar (supra), on considering the issue involved in that decision, weCare of the opinion that the said decision shall not be applicable to thefacts of the case on hand and/or the same shall not be of any assistanceto the claimants. In that case, the issue was as to who could be said tobe the registered owner of the vehicle and the liability of the owner whosold the vehicle, but his name continued to be as the owner with theDregistering authority. To that, it was held that the person in whose namethe motor vehicle stands registered is the owner of the vehicle for thepurpose of the Act.5.8 However, at the same time, even as per the contract ofinsurance, in case of personal accident the owner-driver is entitled to aEsum of Rs.1 lakh. Therefore, the deceased, as observed hereinabove,who would be in the shoes of the owner shall be entitled to sum ofRs.1 lakh, even as per the contract of insurance. However, it is thecase on behalf of the original claimants that there is an amendment tothe 2[nd] Schedule and fixed amount of Rs.5 lakh has been specified incase of death and therefore the claimants shall be entitled to Rs.5 lakh.FThe same cannot be accepted. In the present case, the accident tookplace in the year 2006 and even the Judgment and Award was passedby the learned Tribunal in the year 2009, and the impugned Judgmentand Order has been passed by the High Court in 10.05.2018, i.e. muchprior to the amendment in the 2[nd] Schedule. In the facts and circumstanceGof the present case, the claimants shall not be entitled to the benefit ofthe amendment to the 2[nd] Schedule. At the same time, as observedhereinabove, the claimants shall be entitled to Rs.1 lakh as per the termsof the contract of insurance, the driver being in the shoes of the ownerof the vehicle.

5.9 Now, so far as the submission made on behalf of the claimantsthat in claim under Section 163A of the Act mere use of the vehicle isenough and despite the compensation claimed by the heirs of the ownerof the motorcycle which was involved in the accident resulting in hisdeath, the claim under Section 163A of the Act would be maintainable isconcerned, in view of the decision of this Court in Rajni Devi (supra),the aforesaid cannot be accepted. In Rajni Devi (supra), it has beenspecifically observed and held that the provisions of Section 163A of theAct cannot be said to have any application with regard to an accidentwherein the owner of the motor vehicle himself is involved. Afterconsidering the decisions of this Court in the cases of Oriental InsuranceCo. Ltd. V. Jhuma Saha (2007) 9 SCC 263; Dhanraj (supra); NationalInsurance Co. Ltd. V. Laxmi Narain Dhut (2007) 3 SCC 700 andPremkumari v. Prahlad Dev (2008) 3 SCC 193, it is ultimately concludedby this Court that the liability under Section 163A of the Act is on theowner of the vehicle as person cannot be both, claimant as also arecipient and, therefore, the heirs of the owner could not have maintainedthe claim in terms of Section 163A of the Act. It is further observedthat, for the said purpose, only the terms of the contract of insurancecould be taken recourse to. In the recent decision of this Court in thecase of Ashalata Bhowmik (supra), it is specifically held by this Courtthat the parties shall be governed by the terms and conditions of thecontract of insurance. Therefore, as per the contract of insurance, theinsurance company shall be liable to pay the compensation to thirdparty and not to the owner, except to the extent of Rs.1 lakh as observedhereinabove.

6. In view of the above and for the reasons stated above, thepresent appeal is partly allowed to the aforesaid extent and it is observedand held that the original claimants shall be entitled to sum of Rs.1 lakhonly with interest @ 7.5 per cent per annum from the date of the claimpetition till realization. In the facts and circumstance of the presentcase, there shall be no order as to costs.

Ankit Gyan

Appeal partly allowed.