Bajaj Allianz General Insurance Co. Ltd. vs Sunita

K.U. Chandiwal, J.—Heard finally. Admit. Record and proceeding received, perused. In M.A.C.P. No. 110 of 2008, the learned District Judge-1, Beed by order dated 31st August, 2013 passed award for amount of Rs. 4,86,000 with interest @ 7% p.a., against the original respondent Nos. 1 and 2, same is questioned by the appellant (original respondent No. 2).

The claim petition was u/s 163A of the Motor Vehicles Act for compensation of Rs. 3,00,000 towards death of Babasaheb Wankhede (deceased). On 8th February, 2008, the deceased with his friend Krishna had been to village Madalmohi, Tq. Georai, from Jalna. The deceased was plying motorcycle MH-21-K-6325. His friend was pillion rider. When they reached near Padalsingi, on Madalmohi to Padalsingi road, at about 9.30 p.m. one tempo was coming from opposite direction with dazzling lights, and due to its impact, the deceased could not control his vehicle, dashed against a tree and he with pillion rider, suffered grievous injuries. They were taken to Hospital. The deceased subsequently succumbed to the injuries. The deceased was 30 years old and a Rickshaw driver, earning Rs. 2500 p.m. Respondent No. 1 (original respondent No. 1) was owner of motorcycle and appellant was the Insurer of said motorcycle.

The appellant Insurance Company questions the award basically on the point of indemnification and its responsibility to release the payment. According to it, the Insurance Company is discharged if there is violation, "limitation as to use". According to him, the conditions of use of vehicle are different from schedule. The driver had no licence. A notice was served upon owner (respondent No. 1) to present the licence, but it was not presented. There is no controversy that Dattatraya Jadhav is owner of the vehicle. Learned Counsel for the appellant says, deceased himself was responsible for accident, as he asserted, it was due to dazzling lights.

Mr. Deshmukh, learned Counsel for the claimants says, there is no dispute about death of Babasaheb, validity of insurance policy and term of insurance cover. According to him, there was personal accident cover for owner/driver to the tune of Rs. 1,00,000 which covers deceased Babasaheb, as he was driving the vehicle. Limitation as to use is not breached, as vehicle was not driven for hire or reward, carriage of goods, organized racing, pace making, speed testing, reliability trials or any purpose in connection with motor trade. The Insurance Company has not denied third party liability. The deceased though drove the motorcycle and suffered accident, was a third party. Learned Counsel placed reliance to para 39 in the judgment of the Apex Court in the matter of National Insurance Company Ltd. Vs. Sinitha and Others, Mr. Chapalgaonkar says, the said judgment is referred to Larger Bench.

The Insurance Policy and the terms of insurance are placed on record at Ext. 38-C. It has a two-wheeler package policy. Mr. Chapalgaonkar says, the Rules of package policy are based on India Motor Tariff, which supersedes the provision of the India Motor Tariff in existence up to 30th June, 2002. The provision of this tariff are binding on all concerned and any breach of the tariff shall be a breach of the provisions of the Insurance Act, 1938. He says, the guidelines in Section III in the Insurance Policy are replica of personal accident cover for owner-driver. Proviso (1) to Section III illustrates, this cover is subject to (a) the owner-driver is the registered owner of the vehicle insured herein, (b) the owner-driver is the insured named in this policy and (c) the owner-driver holds an effective driving licence, in accordance with the provisions of Rule 3 of the Central Motor Vehicles Rules, 1989 at the time of accident. The general exception illustrates, the company shall not be liable in respect of any claim arising out of any contractual liability, any accidental loss, damage and/or liability caused, sustained or incurred whilst the vehicle insured herein was being driven by or is for the purpose of being driven by him in the charge of any person other than driver as stated in driver''s clause. According to learned Counsel, in the light of two-wheeler package policy, referred to above, the deceased would not be third party or would not be owner or the driver having personal accident cover.

The theory propagated by the claimants is that deceased suffered dazzling light of tempo coming from opposite direction and met with an accident. It is apparent that the deceased could not control himself was confound to suffer fatal accident. Section 163A of the Motor Vehicles Act contemplates, it is not essential for claimants to believe (sic) accident suffered from wrongful act or negligent or (sic) vehicle, however, it is open to the owner or to the insurer to (sic) u/s 163A by pleading and establishing anyone of (sic) act, negligent or default.

The insurance Policy is in respect of motorcycle covering the owner-driver and not third party. The evidence on record of claimants demonstrate, the deceased was Rickshaw driver by profession for a period of 7 to 8 years and for the purpose of function he had taken motorcycle. There was no ostensible relations between him and the owner of the vehicle Dattatraya Jadhav. He was only known to the deceased. In fact, said motorcycle was borrowed by friend of deceased-Babasaheb. The Insurance Policy in schedule has the personal accident cover for owner-driver. This is in tune with the policy indicated above. The reference to driver in the other terms will have to be read in consonance with schedule of premium and liability of Insurance Company. In the situation, it will not cover the deceased. There was limitation as to use of the vehicle. The deceased was not employee or third party, he himself drove the vehicle. He had no coverage of insurance policy. He was gratuitously driving the motor cycle borrowed from Dattatraya by his friend. Deceased would not be third party to claim compensation from owner of the vehicle and consequently from the Insurance Company. The Insurance Company has agreed to indemnify the insured in the event of accident arising out of insured vehicle against all the sums which the insured would become legally liable to pay in respect of death or bodily injury to any person.

Section 147 of the Motor Vehicles Act conceive with requirements of policies and limits of liability. The term ''any person'' appearing in Section 147(1)(b)(i) applies to the person other than the insured and the persons coverable under policy. It was canvassed by the claimants that driver of the motorcycle would be third party. However, the insurance policy to which reference is given, does not refer to cover any victim driving vehicle stepping in the shoes as third party.

Section 163A is special provision as to payment of compensation on structured formula basis. Non obstante clause takes care to the claimants entitlement. The term "due to accident arising out of the use of motor vehicle" necessarily contemplate use of motor vehicle in legal form. If the motorcycle is driven by unauthorized person without valid driving licence, rigour contemplates u/s 134 of the Motor Vehicles Act would have its effect and for failure to establish such legal user of motorcycle, the claim petition would fail. Section 134 cast duty on the driver in case of accident and injury to a person, it has shown driver of the vehicle or other person in charge of the vehicle shall give in writing to the insurer, who has issued certificate of insurance, about occurrence of accident, viz. (i) insurance policy number and period of its validity, (ii) date, time and place of accident, (iii) the particulars of the persons injured or killed in the accident, and (iv) name of the driver and the particulars of his driving licence. Explanation provides for the purpose of Section 134, the expression ''driver'', includes the owner of the vehicle. Thus, Section 134 sets out the duty of the driver involved in the accident such as reporting accident to the police station, rendering medical aid to the injured, etc. and to provide information to the insurer. It was thus obligation cast on the original respondent No. 1-owner of the vehicle to comply requisitions. The appellant-Insurance Company, as could be seen, had issued a letter to Dattatraya Jadhav on 11th July, 2008 to produce policy. The owner refused envelope from Insurance Company, which was dispatched at his registered address. Thus, in spite of knowledge to the owner of compliance, as sought by the Insurance Company, he failed to adhere. The claimants apparently failed to establish that deceased had valid driving licence at the time of driving vehicle.

In the situation, it emerges that there was embargo about owner himself to be a driver and that there should be valid licence to the driver. The indemnification was to the personal use. Deceased himself was responsible for the accident and consequently could not take benefit of his own wrong from owner of the motorcycle borrowed by him, through his friend. Appeal succeeds. The award to the extent of appellant is set aside. The deposited amount be reimbursed with accrued interest to the appellant-Insurance Company after 21st March, 2014. No costs.