United India Insurance Co. Ltd. Vs Smt. Rupa Nirmalkar

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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MAC No. 188 of 2022

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United India Insurance Co. Ltd. Through Divisional Manager, Division Office Krishna Complex, Kutchery Chowk District Raipur Chhattisgarh. Through T.P. Hub In charge, T.P. Hub, United India Insurance Co. Ltd., 1st Floor, Lic Building, Magarpara Road, Bilaspur Chhattisgarh

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---- Appellant

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Versus

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Smt. Rupa Nirmalkar W/o Late Roshan Nirmalkar Aged About 32 Years Resident Of House Of Keshav Nirmalkar Dabrapara, Mahoba Baazar, P.S. Amanaka Post Tatibandh Tehsil And District Raipur Chhattisgarh.

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Takeshwar Nirmalkar S/o Late Roshan Nirmalkar Aged About 8 Years Minor Through Natural Guardian Mother (Res.No. 1) Resident Of House Of Keshav Nirmalkar Dabrapara, Mahoba Baazar, P.S. Amanaka Post Tatibandh Tehsil And District Raipur Chhattisgarh.

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Ku. Tina Nirmalkar D/o Late Roshan Nirmalkar Aged About 5 Years Minor Through Natural Guardian Mother (Res.No. 1) Resident Of House Of Keshav Nirmalkar Dabrapara, Mahoba Baazar, P.S. Amanaka Post Tatibandh Tehsil And District Raipur Chhattisgarh.

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Smt. Neerabai Nirmalkar W/o Rama Nirmalkar Aged About 62 Years Resident Of House Of Keshav Nirmalkar Dabrapara, Mahoba Baazar, P.S. Amanaka Post Tatibandh Tehsil And District Raipur Chhattisgarh

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Rama Nirmalkar S/o Late Samaruram Nirmalkar Aged About 68 Years Resident Of House Of Keshav Nirmalkar Dabrapara, Mahoba Baazar, P.S. Amanaka Post Tatibandh Tehsil And District Raipur Chhattisgarh

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Dhaneshwar Kumar Nirmalkar S/o Kavilash Nirmalkar Aged About 38 Years R/o Pachripara, Kuroor Tehsil And Post Kuroor District Dhamtari Chhattisgarh

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---- Respondents

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For Appellant : Shri Praveen Kumar Tulsyan, Advcoate For Respondents No.1 to 5 : Shri A.L.Singroul, Advocate

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Hon’ble Shri Justice Arvind Kumar Verma

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Order On Board

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20/03/2024

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The present appeal filed under Section 173 (2) of the Mtor Vehicles Act, 1988, arises out of the award dated 25.10.2021 passed by the Second Additional Motor Accident Claims Tribunal, Raipur, District Raipur (CG) (hereinafter referred to as “the Tribunal”) in Claim Case No. 551/2019.

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Facts of the case in brief are that a claim case under Section 163-A of the M.V.Act, 1988 was filed by the respondents No.1 to 5/claimants who are the wife and children of the deceased claiming compensation to the tune of Rs. 17,50,000/-, inter alia pleading that at the time of accident, the deceased was in employment of the owner of the vehicle/ respondent No.1 Dhaneshwar Kumar Nirmalkar, was aged about 40 years and therefore prayed for suitable compensation.

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After appreciation of the evidence adduced by the parties, the learned Tribunal by the impugned award, granted total compensation of Rs. 5,00,000/- in favour of the claimants fastening the liability upon the insurance company.

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The claim application was resisted by the appellant/Insurance Company on the ground that the accident has occurred due to the sole negligence of the deceased himself therefore, the claim application is not maintainable and the Insurance Company cannot be held liable to pay the compensation. He has stated that the learned Tribunal has not considered the defence taken by the Insurance company in their written statement that the deceased was driving the vehicle after borrowing the same from its owner, he had stepped into the shoes of the owner and as such, the

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claimants are not entitled for any compensation. He further submits that the deceased himself was responsible for causing the accident as he was driving the vehicle in a rash and negligent manner and it met with the accident. He submits that the deceased was not third party and as such his risk was not covered under the policy.

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Learned counsel for the appellant denying the allegations as levelled by the claimants submit that the accident occurred due to negligent driving of the deceased on account of the pot hole on the road, and as such the claimants are not entitled for any compensation. It has been further pleaded that on the date of accident, the deceased was using the motor cycle as a borrower which does not come under the third party policy. However, the witness the Insurance Company (NAW-1 Rahul Shori) has stated that the deceased was holding valid and effective driving license at the time of accident and it has been admitted by him. He has also admitted the fact that the deceased was in employment of the owner of the vehicle and was using the said vehicle in the course of his employment. He has placed reliance upon the judgment of the Supreme Court in the matter of Shivaji &

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Another Vs. Divisional Manager, United India Insurance Co.Ltd. and

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Others which reads as under:

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“4. ……… the High Court opined that the idea behind enacting Section 163-A is to ensure that even in the absence of any mistake on the pat of the driver of the offending vehicle, the injured person or the legal heirs of the deceased victim, and not to the driver who is responsible for causing the said accident. Since the deceased driver in this case was the tortfeasor and responsible for causing the accident, the High Court held that compensation could not have been awarded to the appellants.”

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He has further placed his reliance upon the judgment of the Supreme

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Court in the matter of Ramkhiladi Vs. United India Insurance Company AIR 2020 SC 527:AIRONLINE 2020 SC in para 5.4, it has been observed as under:

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“5.4. An identical question came to be considered by this Court in the case of Ningamma(supra). In that case, the deceased was driving a motorcycle which was borrowed from its real owner and met with an accident by dashing against a bullock cart i.e. without involving any other vehicle. The claim petition was filed under Section 163A of the Act by the legal representatives of the deceased against the real owner of the motor cycle which was being driven by the deceased. To that, this Court has observed and held that since the deceased has stepped into the shoes of the owner of the vehicle, Section 163A of the Act cannot apply wherein the owner of the vehicle himself is involved. Consequently, it was held that the legal representatives of the deceased could not have claimed the compensation under Section 163 A of the Act. Therefore, as such, in the present case, the claimants could have even claimed the compensation and/or filed the claim petition under Section 163A of the At against the driver, owner and insurance company of the offending vehicle i.e. motorcycle bearing registration No. RJ 29 2M 9223, being a third party with respect to the offending vehicle. However, no claim under Section 163A was filed against the driver, owner and/or insurance company of the motor cycle bearing registration No. RJ 29 2M 9223. It is an admitted position that the claim under Section 163A of the Act was only against the owner and the insurance company of the motor cycle bearing registration No. RJ 02 SC 7811 which was borrowed by the deceased from the opponent owner Bhagwan Sahay. Therefore, applying the law laid down by this Court in the case of Ningamma (supra), and as the deceased has stepped into the shoes of the owner of the vehicle bearing registration No. RJ 02 SA 7811, as rightly held by the High Court the claim petition under Section 163A of the Act against the owner and the insurance company of the vehicle bearing registration No. RJ 02 SA 7811 shall not be maintainable. “

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Per contra, learned counsel for respondents No.1 to 5 submits that

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the deceased was in employment of owner of the vehicle and on the date of

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accident, as he had gone for the work of his employer/owner on his motorcycle, he cannot be treated as borrower and cannot be said to have stepped into the shoes of the owner. He further submits that the fact that the deceased was a third party which has also been admitted by the witness of the Insurance Company and he has denied that the deceased had stepped into the shoes of the owner. He submits that the policy was a package policy therefore, the deceased was a third party and the Insurance Company is liable to pay compensation. He has relied upon the judgment of this Court in MAC No. 58 of 2006 decided on 25.03.2014 in para 11 & 12 which reads as under:

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“11…………….. it is quite evident from para 10 of the evidence of the claimants witness Pramila Rastogi (AW-1) that on the date of accident the deceased was in employment of owner of the vehicle and had gone for his work. Further the fact that the deceased was in employment of owner of the vehicle has not been disputed by the insurance company and rather the said fact has been admitted by it in its written statement. The insurance company has not led any evidence to establish and prove that the deceased was not in employment of the owner of the vehicle and had not gone for the work of his employer/owner. The insurance company has merely examined one Sanjay Kumar Singh (NAW-1) and this witness has not made any such statement that at the time of accident, the deceased was not in employment of owner of the vehicle. Rather as per statement made by this witness in para-6 of his deposition, the deceased falls in the category of 3^rd party.

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thus, in absence of any specific pleading and evidence, at this stage, the insurance company cannot draw any benefit by merely saying that having borrowed the vehicle from its owner, the deceased had stepped into the shoes of the owner and therefore the claimants are not entitled for any compensation. This plea was never put to test or gone into by the Tribunal since the insurance company neither took this plea nor adduced any evidence to this effect. The insurance company could have been fair better if it had addressed this issue before the Tribunal itself

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instead of becoming wiser at the appellate stage.”

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Heard learned counsel for the appellant and perused the records and the impugned award.

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In the FIR Ex.D-2, it is mentioned that the deceased was in employment of owner of the vehicle which is evident from the statement of the claimant witness (AW-1) that he was under the employment of the owner Dhaneshwar Nirmalkar and had gone for his work. The final report Ex.P-4, on 19.12.2018, the deceased along with Bhojram Nirmalkar had gone in the motorcycle bearing No. CG 04 AA 2212 on some work and at about 9.45 pm. while returning from Seonikala, hemet with an accident he fell in the pot hole on the road and sustained grievous injuries on his head and when he was being shifted from Kurud to Raipur, on the way he died. However, the pillion rider Bhojram Nirmalkar sustained simple injuries. This shows that the at the time of accident, the deceased was in employment of the owner of the vehicle and had gone for his work as directed by him. The driver and owner of the vehicle in his written statement has not disputed this fact rather the said fact has been admitted by him in his written statement.

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I have gone through the authorities cited by the parties. In similar circumstances, the Supreme Court in Shivaji (supra) has held that in claim petition under Section 163-A, question of proving rash and negligent act of driver is not required. In para 5 of the judgment, it has been observed as under:

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“5. The issue which arises before us is no longer res integra and is covered by a recent judgment of three Judges of this court in United India Insurance co. Ltd. Vs. Sunil Kumar & another, AIR 2017 SC 5710: 2018 (1)TAC 3, wherein it was held that to permit a defence of negligence of the claimant by the

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insurer and/or to understand Section 163 A of the Act as contemplating such a situation, would be inconsistent with the legislative object behind introduction of this provision, which is “final compensation within a limited time frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability was taking an unduly long time.” The Court observed that if an insurer was permitted to raise a defence of negligence under Section 163A of the Act, it would “bring a proceeding under Section 163A of the Act at par with the proceeding under Section 166 of the Act which would not only be selfcontradictory but also defeat the very legislative intention.” Consequently, it was held that in a proceeding under Section 163A of the Act, the insurer cannot raise any defence of negligence on the part of the victim to counter a claim for compensation.”

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The Insurance Company has not proved this fact that the deceased was not in employment of the owner of the vehicle and that he had not gone for the work of the employer therefore, this Court concluded that the deceased was not the borrower of the motorcycle and the policy was package policy, the deceased was the third party at the time of accident and thus, the Insurance Company is liable to pay compensation under Section 163-A of the Motor Vehicles Act.

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Learned counsel for the appellant further contended that the date of incident was 19.12.2018, learned Claims Tribunal has awarded the increment of 5% per annum from 3^rd January 2019 which is on the higher side and is contrary to law. The amendment was enforced on 1^st January 2019 and the accident took place on 19.12.2018 therefore 5% increment should not have been given by the Tribunal. This fact was also admitted by the counsel for the respondents therefore this Court holds that the learned Tribunal has wrongly awarded 5% increment on the awarded amount of compensation of Rs. 5,00,000/-.

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To the above submission and after going through the impugned award, the learned Tribunal has rightly awarded the compensation to the claimants. So far as the 5% increment from the date of 1^st January 2019 is concerned, it is on the higher side and is contrary to law. The amendment was enforced on 1^st January 2019 and the accident took place on 19.12.2018 therefore 5% increment given by the Tribunal is set aside. Thus, the impugned award of the Tribunal is modified to that extent that the amount of compensation awarded by the learned Tribunal for a sum of Rs. 5,00,000/- is correct.

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The appeal is thus partly allowed.

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Sd/-

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(Arvind Kumar Verma) Judge

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suguna

United India Insurance Co. Ltd. v. Smt. Rupa Nirmalkar

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United India Insurance Co. Ltd. v. Smt. Rupa Nirmalkar

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