Ramkhiladi & Anr. vs The United India Insurance Company & Anr.

HELD : 1. While answering the finding recorded by the Tribunal on Issue No. 2 i.e. whether the driver was driving the said vehicle being in the employment of vehicle owner opposite party No. 1 in his interest or with his permission/knowledge? it appears that, as such, the Tribunal has not at all answered the aforesaid issue. While answering Issue No. 2, there is no specific finding whether the deceased-driver was in employment of the opponent-owner or not. Even otherwise, no evidence is led by the claimants to prove that the deceased-driver was in employment of the opponent-owner. Despite the above, while answering Issue No. 4 there is some observation made by the Tribunal that the deceased-driver was in employment of the opponent-owner, which is not supported by any evidence on record. Under the circumstances, the deceased-driver cannot be said to be in employment of the opponent-owner and, therefore, he can be said to be permissible user and/or borrower of motor vehicle owned by the opponent-owner. With these findings, the main question posed for consideration of this Court referred to hereinabove is required to be considered. [Paras 2.1 and 5.3] [32-B-D]

2. An identical question came to be considered by this Court in the case of Ningamma, 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 motorcycle 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 163A 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 Act against the driver, owner and insurance company of the offending vehicle i.e. another motorcycle 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 that offending motorcycle. 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 motorcycle which was borrowed by the deceased from the opponent-owner. Therefore, applying the law laid down by this Court in the case of Ningamma, and as the deceased has stepped into the shoes of the owner of the vehicle, which was borrowed, as rightly held by the High Court, the claim petition under Section 163A of the Act against the owner and insurance company of the said vehicle shall not be maintainable. [Para 5.4] [32-E-H; 33-A-B]

3. It is true that, in a claim under Section 163A of the Act, there is no need for the claimants to plead or establish the negligence and/or that the death in respect of which the claim petition is sought to be established was due to wrongful act, neglect or default of the owner of the vehicle concerned. It is also true that the claim petition under Section 163A of the Act is based on the principle of no fault liability. However, at the same time, the deceased has to be a third party and cannot maintain a claim under Section 163A of the Act against the owner/insurer of the vehicle which is borrowed by him as he will be in the shoes of the owner and he cannot maintain a claim under Section 163A of the Act against the owner and insurer of the vehicle. In the present case, the parties are governed by the contract of insurance and under the contract of insurance the liability of the insurance company would be qua third party only. In the present case, the deceased cannot be said to be a third party with respect to the insured vehicle. There cannot be any dispute that the liability of the insurance company would be as per the terms and conditions of the contract of insurance. As held by this Court in the case of Dhanraj, an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorized representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. In the said decision, it is further held by this Court that Section

147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle. [Para 5.5] [33-C-G]

4. In view of the above and for the reasons stated above, in the present case, as the claim under Section 163A of the Act was made only against the owner and insurance company of the vehicle which was being driven by the deceased himself as borrower of the vehicle from the owner of the vehicle and he would be in the shoes of the owner, the High Court has rightly observed and held that such a claim was not maintainable and the claimants ought to have joined and/or ought to have made the claim under Section 163A of the Act against the driver, owner and/or the insurance company of the another offending vehicle being a third party to the said vehicle. [Para 5.6] [33-H; 34-A-B] Ningamma v. United India Insurance Co. Ltd. (2009)

13 SCC 710 : [2009] 8 SCR 683 – relied on.

Naveen Kumar v. Vijay Kumar (2018) 3 SCC 1 : [2018]

2 SCR 572 – held inapplicable.

Reshma Kumari v. Madan Mohan (2013) 9 SCC 65 : [2013] 2 SCR 706 ; Jitender Trivedi v. Kasam Daud (2015) 4 SCC 237 : [2015] 2 SCR 120 ; New India Assurance Co. Ltd. v. Sadanand Mukhi (2009) 2 SCC

417 : [2008] 17 SCR 1313 ; Dhanraj v. New India Assurance Co. Ltd. (2004) 8 SCC 553 : [2004] 4 Suppl. SCR 711 ; Oriental Insurance Co. Ltd. v. Rajni Devi (2008) 5 SCC 736 : [2008] 6 SCR 822 ; National Insurance Co. Ltd. v. Ashalata Bhowmik (2018) 9 SCC

801 : [2018] 10 SCR 871 ; Oriental Insurance Co. Ltd. v. Jhuma Saha (2007) 9 SCC 263 : [2007] 1 SCR

979 ; National Insurance Co. Ltd. v. Laxmi Narain Dhut (2007) 3 SCC 700 : [2007] 3 SCR 579 ; Premkumari v. Prahlad Dev (2008) 3 SCC 193 : [2008] 1 SCR 874 – referred to.