National Insurance Co. Ltd. vs Smt. Sukhbiri and Others

Indermeet Kaur, J.—The award impugned before this Court is the Award dated 26.8.2008 vide which compensation in the sum of Rs. 3,63,000/- along with interest at 7.5% P.A had been awarded in favour of claimants. This claim petition had been filed u/s 163A of the M.V. Act .

Facts were that on the intervening night of 17/18.4.2005 Davinder @ Babloo, Lakshman and their friends were going on their motorcycle; the motorcycle suffered an accident; an unknown vehicle hit the motorcycle from behind as a result of which the motorbike and the riders were thrown of balance. Davinder and Lakshman fell down; they were crushed by some unknown vehicle; they both died. The vehicle was being driven by Lakshman. Davinder was the pillion rider. Sukhbiri is the claimant of deceased Lakshman.

The appellant has assailed this award on the ground that Lakshman was the owner of the vehicle; he was admittedly driving it; accident had been suffered at the time when Lakshman being the owner and driver of the vehicle was driving the said vehicle; his claim is not covered under " third party risk" and the Insurance Company in these circumstances is not liable to pay any amount to the claimants. Reliance has been placed upon the judgment of Ningamma and Another Vs. United India Insurance Co. Ltd., to support this submission.

In this judgment the Apex Court while dealing with a claim petition u/s 163A of the M.V. Act had noted that a claim made by legal representative of the deceased is not maintainable when the driver is also the owner of the vehicle and he dies in the road accident. In this case, the deceased was traveling on a motorcycle which he had borrowed from its real owner. Admittedly the deceased was not an employee of the real owner; he had only borrowed the vehicle; he had stepped into the shoes of the real owner at the time when he suffered the accident; concept of "third party risk" had been expounded. Ratio returned was that in such an eventuality where the driver is also the owner of the vehicle and he dies in such a road accident the Insurance Company is not liable.

The facts of the instant case are by and large similar. The driver of this vehicle was Lakshman; on the evidence recorded, court had noted that death of the victims Davinder and Lakshman is the result of the road accident. Learned Counsel for the respondents has also not disputed the ratio of Nigamma (supra). His contention is that this judgment is again being reviewed by the Apex Court. Be that as it may, the law as it stands today is that driver/owner who dies in an accident his legal heirs are not entitled to a claim u/s 163A of the M.V. Act.

Learned Counsel for the respondents has drawn attention of this Court to the insurance policy; it is pointed out that a sum of Rs. 50/- had also been charged in the insurance policy for the "compulsory P.A. to owner-driver". Learned Counsel for the appellant has explained that this amount of Rs. 50/- had been charged by the appellant as a personal accident amount to be paid to the owner/driver quantifying it at Rs. 1,00,000/- in those case only where owner-driver survives.

In view of the ratio of the Nigamma (supra) the Insurance Company could not have been foisted with the liability in the instant case. Appeal is allowed. Order of the MACT is set aside. The amount deposited by the appellant be returned. Appeal disposed of in the above terms.