Full Judgment Text
1906 FA 574/2006
1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH AT NAGPUR.
FIRST APPEAL NO. 574/2006
The Oriental Insurance Co. Ltd.,
Divisional Office, Rayat Haweli,
Old Cotton Market, Akola, through
The Divisional Manager,
The Oriental Insurance Co. Ltd.,
Kanoria House, Palm Road,
Civil Lines, Nagpur. APPELLANT
.....VERSUS.....
1] Smt. Savita wd/o Kailas Kokate,
Aged 30 years, Occu: Household,
2] Ku. Priya d/o Kailas Kokate,
Aged 10 years, Occu: Education,
3] Manoj @ Vaibhav s/o Kailas Kokate,
Aged 9 years, Occu: Education,
4] Kum. Ritu d/o Kailas Kokate,
Aged 5 years.
Resp. Nos.2 to 4 being minors,
through their natural guardian mother,
respondent no.1.
5] Shri Vishwanath Pandhari Kokate (deleted)
6] Smt. Kamini w/o Vishwanath Kokate,
Aged 53 years, Occu: Household,
All R/o. Babhulgaon, Tah. Telhara,
Distt. Akola.
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7] Shri Ashok Sakharam Pargharmor,
Age : Adult, Occu: Agriculturist,
8] Shri Samadhan Dnyandeo Pande,
Age : Adult, Occu: Agriculturist,
Both R/o. Talegaon Babhulgaon,
Tah. Telhara, Distt. Akola. RESPONDE NTS
Shri Ashish W. Paunikar, counsel for the appellant.
Shri A.B. Mirza, counsel for respondent nos.1 to 6.
CORAM : DR. SMT. SHALINI PHANSALKARJOSHI, J.
DATE : JUNE 19, 2017.
ORAL JUDGMENT :
The issue raised for consideration in this appeal is
whether the claimants, who are the legal heirs of the deceased and
who have filed the application for compensation under Section 166
of the Motor Vehicles Act (hereinafter will be referred to as “Act” for
convenience) and having availed an interim benefit under Section
140 of the Act, are entitled to compensation finally under Section
163(A) of the Act, that too by the Tribunal suo moto converting the
application filed under Section 166 to Section 163(A) of the Act.
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2] For deciding this legal issue, the factual matrix of the
appeal, which is necessary to know, can be stated as follows :
Deceased Kailas was the husband of respondent no.1,
father of respondent nos.2 to 4 and son of respondent no.5. On
09/12/2003, he was proceeding as pillion rider on motorcycle,
bearing no. MH30D7740, driven by respondent no.7 and owned
by respondent no.8. The said motorcycle was insured with the
appellant. One white colour Jeep coming from opposite direction,
driven in high speed and in rash and negligent manner, gave dash to
his motorcycle, thereby causing the accidental death of Kailas. The
said Jeep fled away from the spot after the accident and could not
be traced. F.I.R. came to be registered against the driver of the said
unidentified white colour Jeep. Even police could not trace the said
Jeep in the course of investigation.
3] At the time of accident, deceased Kailas was running
the age of 30 years and on account of his untimely death, as
respondents lost their only source of income, they preferred the
Claim Petition No. 77/2005 before the Motor Accident Claims
Tribunal, Akot, claiming the compensation from appellant and
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respondent nos.7 and 8 contending inter alia that respndent nos.1 to
5 have lost their only source of income and emotional support.
Hence considering the age of deceased and the income, which he
was earning from agriculture to the tune of Rs.120/ per day, they
were entitled to get compensation of Rs.4,00,000/.
4] This claim petition came to be resisted by respondent
nos.7 and 8 and also by appellant, submitting that the sole cause of
the accident was rash and negligent driving of the Jeep and hence
they were not liable to pay any amount of compensation to the
claimants.
5] As regards the appellant, it was further contended that
though the motorcycle on which the deceased was riding as pillion
seater was insured with appellant, however, it was not insured
under a comprehensive policy but under an Act only policy,
therefore, liability of the pillion rider being not covered thereunder,
as the extra premium was not paid by the owner of the motorcycle,
the claim against the insurance company was not tenable. Hence,
appellantinsurance company needs to be absolved, from joint and
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several liability to pay compensation to the claimants.
6] In view of the rival pleadings of the parties, the
Tribunal framed necessary issues at Exh.29. In support of her claim,
the respondent no.1, the claimant examined herself and produced
on record the relevant documentary evidence, like, the copy of F.I.R.
(Exh.31), spot panchmama (Exh.32) and post mortem notes
(Exh.34).
7] On appreciation of the evidence led on record, the
Tribunal was pleased to hold that the cause of the accident was
clearly proved to be the rash and negligent driving of the
unidentified Jeep. As the driver, owner and insurance company of
the said Jeep could not be traced, they were not added as
respondents in the petition, though it was necessary for the
claimants to do so. Hence, the Tribunal then on it’s own, suo motu
converted the claim petition from Section 166 to Section 163A of
the Act, and awarded compensation amount to the tune of
Rs.1,64,000/ to be paid by appellant and respondent nos.7 and 8 to
the claimants jointly and severally.
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8] Perusal of the impugned judgment and order of the
Tribunal reveals that the contention raised by learned counsel for
appellant herein that as the policy was Act only policy, the insurance
company will not be liable to pay the compensation for death of a
pillion rider on the motorcycle, was rejected by the Tribunal relying
upon the judgment of this Court in Ajay Vs Avinash, 2004 (2)
Mh.L.J. 725 , wherein it was held as follows :
“In Section 147 of the M.V. Act, 1988, there is no limit in
certain cases as contained in Clause (ii) of the old Act.
The corresponding provisions in the old Act contain 3
clauses whereas now there are only two clauses. What
was dropped in the new Act is the Clause which excluded
the coverage for death or bodily injury to person carryied
in or upon the vehicle. That means such a liability cannot
be now excluded from the policy. Therefore when the
policy of insurance is an “Act Policy” the insurance
company will not stand absolved from the liability in
respect of the pillion rider of the motorcycle. The
petitioner pillion rider who fell down from the motorcycle
and sustained injury would not thereore, be denied the
compensation u/s 140 by the Insurance Company. The
order of the Motor Accident Claims Tribunal in so far it
rejects the claim against the Insurance Company is hence
set aside. The Insurance Company is liable to pay the
amount of interim award u/s 140 of the M.V. Act, 1988
with interest @ 9% p.a. till the date of realisation.”
9] Relying upon the ratio laid down in the abovesaid
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ruling, it was held by the Tribunal that appellantinsurance company
will not stand absolved from the liability in respect of the pillion
rider of the motorcycle. It was further held that as the claim now
needs to be converted to Section 163(A) of the Act, nonjoinder of
the owner, driver and insurance company of the Jeep would not
cause any impediment in claiming the compensation.
10] This judgment of the Tribunal is rightly challenged in
this appeal by learned counsel for appellant in view of the legal
position, which is crystalized in various judgments of the Hon'ble
Supreme Court to the effect that in case of Act policy, the liability of
the insurance company stands absolved in case of the death of the
pillion rider, who is not a third party. Moreover the law is also clear
to the effect that claimants in such cases, at the most can be entitled
to compensation under Section 140 of the Act for no fault liability
but neither under Section 166 or Section 163 which deal with fault
liability. In the judgment of this court also, on which Tribunal has
placed reliance, the claimants were held entitled for compensation
from insurance company only to the extent of “no fault liability”
under Section 140 of the Act. The insurance company was
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accordingly held liable to pay the amount of interim award under
Section 140 of the Act. However, if the claimants have already
availed the benefit entitled under Section 140 of the Act as in the
present case, by filing petition under Section 166 of the Act, such
petition cannot be converted to Section 163A of the Act as the
liability under Section 163A of the Act is also fault liability.
11] In this case, it is an admitted factual position that
deceased Kailas was pillion rider. Not only claimant no.1 admitted
this fact, but even respondent no.7, the owner and respondent no.8,
the driver have also admitted the fact that deceased Kailas was
pillion rider at the time of accident of the motorcycle. The copy of
the F.I.R. (Exh.31) filed in the case is also more than sufficient to
further confirm that deceased Kailas was sitting as pillion rider on
the said motorcycle at the time of accident. In such situation, when
the policy is Act policy and not a comprehensive policy, then the
liability of insurance company, either under Section 166 or under
Section 163A of the Act stands absolved as regards the death of
pillion rider, in view of the legal position discussed in the case of
Oriental Insurance Co.Ltd. Vs Sudhakaran K.V., 2008 ACJ
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2045(SC). In this case the Two Judge Bench of the Hon'ble Apex
Court, while dealing with the issue whether a pillion rider on a
scooter would be a “third party” within the meaning of Section 147
of the Act, after referring to number of its earlier decisions, held in
para no.16 as follows :
"(16) The contract of insurance did not cover the owner
of the vehicle, certainly not the pillion rider. The deceased
was travelling as a passenger, stricto sensu may not be as
a gratuitious passenger as in a given case she may not be
a member of the family, a friend or other relative. In the
sense of the term which is used in common parlance, she
might not be even a passenger. In view of the terms of the
contract of insurance, however she would not be covered
thereby.”
In para no.19, it was held that, “The law which emerges
is that the liability of the insurance company in a case of this nature is
not extended to a pillion rider of the motorcycle unless the requisite
amount of premium is paid for covering his/her risk”. It was further
held that,
“The legal obligation arising under Section 147 of the Act
cannot be extended to an injury or death of the owner of
the vehicle or the pillion rider, and the pillion rider in a
two wheeler was not to be treated as a third party when
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the accident has taken place owing to rash and negligent
riding of scooter and not on the part of driver of another
vehicle”.
12] The same legal position was reiterated in subsequent
decision of National Insurance Co. Ltd. Vs Balkrishnan and
another, 2013 ACJ 199 (SC) . Here in the case, having regard to the
admitted factual position that deceased was the pillion rider, his
liability cannot stand covered under the Act policy, either under
Section 163A or under Section 166 of the Act which deal with fault
liability. His liability would have been covered by the insurance
policy of the offending vehicle, the Jeep, as the accident has
occurred due to rash and negligent driving of the Jeep driver.
However as the Jeep or its driver or owner were not identified,
claimants could not join them or their insurer. Though it is an
unfortunate fact, the insurance company of the motorcycle on which
deceased was proceeding as a pillion rider, cannot be held liable to
compensate his legal heirs, when it was only Act policy and
deceased was not a “third party”.
13] The next question arising for consideration is whether
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Tribunal could have converted this petition filed by the claimants
under Section 166 to Section 163A of the Act? In this respect also,
the legal position is fairly well settled by the decision of the Hon'ble
Apex Court in the case of Deepal Girishbhai Soni and others Vs
United India Insurance Co. Ltd., 2004 ACJ 934 , wherein it was
held by the Hon'ble Apex Court that "Once amount of compensation
is received for No Fault Liability by filing the petition under Section
166 of the Act, application under Section 163A of the Act, cannot be
maintainable".
14] In the decision of our own High Court also, in the case
of New India Insurance Co. Ltd. Vs Geeta Sadanand Naik and
others, 2013 ACJ 1082 , the same legal position was reiterated. The
facts of the said case were identical to the facts of the present case.
In that case also, the claimants had filed an application under
Sections 166 and 140 of the Act. They also received the amount for
No Fault Liability under Section 140 of the Act. Subsequently they
sought conversion of their claim from the one under Section 166 of
the Act to that under Section 163A of the Act. Tribunal allowed the
same and awarded the compensation under Section 163A of the
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Act, directing adjustment of the amount received by the claimants
under Section 140 of the Act. In the light of these facts, it was held
that Section 163B of the Act specifically clarifies that claim
application can be filed either under Section 140 or under Section
163A of the Act but not under both. It was further held that “There
was no provision under the Act for reducing the amount awarded
under Section 140 of the Act from the amount finally awarded under
Section 163A of the Act”. While further clarifying the distinction
between these two provisions of Section 163A and Section 140 of
the Act, the Hon'ble Apex Court was pleased to hold in para nos.26
and 27 of its judgment as follows :
"26. Section 163B of the Act provides for an option to
file claim in certain cases and it says that where a person
is entitled to claim compensation under sections 140 and
163A, he shall file claim under either of the said sections
and not under both. The above is a mandatory section.
Hence, if a person has filed an application for
compensation under section 140 of the Act and has
already received the said compensation, then, certainly he
cannot maintain the claim petition under section 163A
of the Act. In the case of United India Insurance Co. Ltd.
Vs Janabai, 2003 ACJ 350 (Bombay), the learned single
Judge of the Aurangabad Bench of our High Court has
held that the wording of section 163B of the Act is very
clear and a person cannot claim compensation under
sections 140 and 163A. It has been held that a choice
has been given to person to claim compensation under
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either of sections and not both. It has been held that
where the Tribunal has awarded compensation under
section 140 as well as under section 163A, award under
section 163A is contrary to statutory provision and,
therefore, the award cannot be sustained in law. I fully
agree with the above view of the learned single Judge of
the Aurangabad Bench of our High Court.”
“27. Section 141(1) of the Act crystalises that right to
claim compensation under section 140 is in addition to
any other right to claim compensation on the principle of
fault liability and specifically excludes the right to claim
compensation under the scheme referred to in section
163A. Subsection (2) of section 141 further provides
that if the claimant has filed an application for
compensation under section 140 and also in pursuance of
any right on the principle of fault liability, the claim for
compensation under section 140 is to be disposed of in
the first instance and as provided in subsection (3), the
amount received under subsection (2) of section 140 is
to be adjusted while paying the compensation on the
principle of fault liability. However, there is no provision
in the Act for reducing the amount awarded under section
140 from the amount finally awarded under section 163
A of the Act. On the contrary, section 163B specifically
clarifies that claim petition can be filed either under
section 140 or under section 163A but not under both
sections."
Ultimately in para no.28 of the judgment, it was held
that “The finding of learned Claims Tribunal to the effect that the
claimants are entitled to compensation finally under Section 163A of
the Act after having availed of interim benefit under Section 140 of the
Act is erroneous and cannot be sustained” .
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15] In this case, admittedly as observed by the Tribunal in
its judgment in para no.16, the claimants were already paid No Fault
Liability amount of Rs.50,000/ under Section 140 of the Act. In
such circumstances, in the light of the law laid down by the Hon'ble
Apex Court and in the abovesaid authorities of this High Court, the
claimants cannot be entitled to get amount under Section 163A of
the Act. In this respect, the Tribunal has committed an error in suo
motu converting the petition of the claimants from Section 166 of
the Act to Section 163A of the Act, that too, after the claimants
have availed compensation for no fault liability under Section 140 of
the Act. Appellant insurance company, in above such circumstances,
is, therefore, entitled to get absolved from the liability to pay
compensation to the claimants under Section 163A of the Act. So
far as the liability of respondent nos.7 and 8, the driver and owner
of the vehicle, is concerned, as they have not approached this Court
in order to challenge the award passed against them, this Court
need not enter into the aspect of their liability.
16] Appeal, therefore, needs to be allowed for setting aside
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the impugned judgment and award as against the appellant.
17] The impugned judgment and award passed by the
Tribunal is thus set aside against the appellant.
18] Appellant is absolved from the joint and several liability
of paying compensation to the respondents/ claimants.
19] As amount of compensation is already deposited by
appellant in the court, appellant is permitted to withdraw the said
amount with interest accrued thereon, if not already withdrawn by
the claimants, and if it is already withdrawn by the
respondents/claimants, then appellant is entitled and is at liberty to
take necessary steps for recovery of the said amount.
20] Appeal stands disposed of in above terms with no order
as to costs.
JUDGE
Yenurkar
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