Shajeela vs New India Assurance Company Ltd

P.B.Suresh Kumar, J.

The legal representatives of the driver of a vehicle involved in an accident claimed compensation against the owner as also insurer of the vehicle under Section 163A of the Motor Vehicles Act (the Act). Although the insurer admitted that a policy of insurance was issued by them for the vehicle covering the relevant period, it was contended by them that the deceased driver and few others abducted a person and forcibly took him in the vehicle and that the vehicle which was being driven by the deceased, then overturned, causing fatal injury to him and that therefore, the legal representatives of the deceased driver cannot claim compensation under Section 163A of the Act. The Tribunal found that the insurer is liable to pay compensation to the legal representatives of the deceased driver as they have issued a policy of insurance for the vehicle covering the relevant period and accordingly, granted compensation to the legal representatives. The insurer of the vehicle challenged the said decision of the Tribunal in appeal. In Ningamma v. United India Insurance Co. Ltd., (2009) 13 SCC 710, the Apex Court held that the legal representatives of the driver in such cases would step into the shoes of the owner of the vehicle and that, therefore, they cannot claim compensation under Section 163A of the Act for, the liability to compensate under the said provision is fastened in terms of the statute on the owner of the vehicle himself. Placing reliance on the decision of the Apex Court in Ningamma, this Court allowed the appeal, set aside the decision of the Tribunal and dismissed the claim petition. The legal representatives of the deceased driver seek in this proceedings, review of the decision of this Court in the appeal.

Heard the learned counsel for the review petitioners as also the learned counsel for the insurer.

As noted, at the time when the accident took place, the deceased driver and few others were proceeding in the vehicle, after abducting a person. According to the learned counsel for the review petitioners, the ratio of Ningamma would apply only in a case where the vehicle is driven by a person with the consent, either express or implied, of the owner of the vehicle and the ratio therein does not apply to a case of the present nature where the deceased driver was proceeding in the vehicle in the course of committing a crime. According to the learned counsel, it cannot, therefore, be presumed under those circumstances that the deceased driver was driving the vehicle with the consent of the owner, either express or implied.

The liability to compensate the victim of a motor accident even in a proceedings under Section 163A of the Act is on the owner of the vehicle and the insurer of the vehicle is only indemnifying the owner. One cannot be both the person entitled to claim compensation and obliged to give compensation in respect of one and the same act is the principle recognised by the Apex Court in Ningamma. In the said view of the matter, in the absence of any material to show as to what was the arrangement under which the owner of the vehicle entrusted the vehicle to the deceased driver, it can only be presumed that the deceased driver was driving the vehicle with the express or implied consent of the owner. If the vehicle was being driven by the the deceased driver with the express or implied consent of the owner, I fail to understand as to how he would fall within the ambit of 'third party' as he was driving the vehicle in the course of committing a crime.

The review petition, in the circumstances, is without merits and the same is therefore, dismissed.