THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) MAC App.7/2011 United India Insurance Co. Ltd. Md. Nur Mohammad & ors. Versus Appellants Respondents BEFORE HON BLE MR. JUSTICE KALYAN RAI SURANA For the Appellants: Mr. R. Goswami, Mr. D.K. Das, Mr. I. Alam, Advocates. For the Respondent: Mr. S. Das, Mr. G. Pathak, Mr. B. Barman, Ms. R.T. Das, Advocates. Date of hearing & judgment: 23.10.2017. JUDGMENT AND ORDER (ORAL) Heard Mr. R. Goswami learned counsel appearing for the appellant as well as Mr. S. Das learned counsel appearing for the respondent Nos. 1 and 2. None appears on call for the respondent No.3. 2. By filing this appeal under section 173 of the Motor Vehicles Act, 1988, the appellants have challenged the judgment and award dated 21.09.2010, passed by the learned Motor Accident Claims Tribunal, Kamrup, Guwahati in MAC Case No.1220/2007. Page 1 of 7
3. The parents i.e. the father and mother of Late Sirajuddin, who are the respondents No. 1 and 2 herein are the claimants in MAC Case No.1220/2007. The case of the claimant was that on 17.12.2006 at about 3:20 p.m., while the deceased Sirajuddin was riding a motorcycle bearing registration No. AS-01/Z-0488 from his home towards Morigaon, while trying to give side to another vehicle, he lost control over his motorcycle and fell down on the road. As a result of the accident, he sustained grievous injuries including head injury. He was brought to a Nursing Home at Guwahati, but he died on 19.12.2006 owing to his injuries. The post-mortem of the dead body was done at Guwahati Medical College and Hospital. The Jagiroad Police Station registered a case bearing Jagiroad P.S. U/D Case No.37/2006. The claim application filed under section 163-A of the Motor Vehicles Act, 1988 was taken up by the Motor Accident Claims Tribunal, Kamrup, Guwahati and the said learned Tribunal by judgment and award dated 21.09.2010, inter-alia awarded the compensation of Rs.2,49,000/- (Rs. Two lakh forty nine thousand only) with 6% interest from the date of filing of the claim petition i.e. on 31.05.2007 till payment. 4. Challenging the said judgment and award, the learned counsel for the appellant has submitted that in the present case in hand, the deceased by creation of a legal fiction, has stepped into the shoes of the owner. It is submitted that the concerned vehicle was insured by a Packaged policy, whereby, an additional premium of Rs.50/- was paid in respect of the claimant for the owner/ insurer having maximum cap of Rs.1,00,000/- (Rs. One lakh only). As per the terms and conditions of the policy, the owner must be the registered owner of the vehicle and he must be the person insured. 5. In order to canvass this point, the learned counsel for the appellant has referred to the terms and conditions contained in the insurance Page 2 of 7
policy in question. It is further submitted that if the person who has suffered injuries or has died in a road traffic accident is the owner, a claim petition filed under the provision of section 163A or under section 166 of the Motor Vehicles Act, 1988 cannot be maintainable before the Motor Accident Claims Tribunal, but the personal accident claim must be lodged for payment by the insurer. 6. It is submitted that at best, the registered owner of the vehicle can apply for compensation as per the terms of the policy, which cannot be entertained by a Motor Accident Claims Tribunal. 7. In order to support his arguments the learned counsel for the appellant has referred to the following cases: (1). National Insurance Company Limited Vs. Kanika Choudhury and others 2006 (2) GLT 261, (2). Oriental Insurance Company Limited Vs. Rajni Devi (2008) 5 SCC 366, (3). New India Assurance Company Limited Vs. Sadanand Mukhi and others (2009) 2 SCC 417 and (4). Ningamma and another Vs. United India Insurance Company Limited (2009) 13 SCC 710. 8. Heavily relying on the case of Ningamma and another (supra), it is submitted that the Hon ble Supreme Court has categorically held in the said case that the provisions of section 163A cannot be applied when the owner of the vehicle himself is involved. It is also submitted that although in the case of National Insurance Company Limited Vs. Sinitha, (2012) 2 SCC 356, the Hon ble Supreme Court did not interfere in the claim made on behalf of the deceased driver of the motor cycle under section 163A of the Motor Vehicles Act, but in the said case, the Hon ble three Judges Bench decision of the Hon ble Supreme Court in the case of Deepal Girishbhai Soni Vs. United India Insurance Company Limited, (2004) 5 SCC 385 was not placed before the Hon ble Division Bench while deciding the case of Sinitha (supra), the Hon ble Page 3 of 7
Supreme Court in the case of United India Insurance Company Limited Vs. Sunil Kumar and another, (2014) 1 SCC 680 had referred the case of Sinitha (supra) to be placed before the Hon ble the Chief Justice of India for referring the case to a larger Bench for correct interpretation for the scope of section 163A of the Motor Vehicles Act, 1988. 9. It is further submitted that any other decision which is contrary to the cases cited by him, were not sustainable being contrary to the said judgments passed by the Hon ble Supreme Court. 10. Per contra, the learned counsel for the respondent Nos. 1 and 2 has argued his support in the impugned judgment and award. He has submitted that because of the legal fiction treated by various judgments in various Courts including the Hon ble Supreme Court, the deceased had stepped into the shoes of the owner of the Motor cycle, and therefore, the case of the respondent Nos. 1 and 2 was squarely covered by the decision of the Hon ble Supreme Court in the case of Sinitha (supra). 11. In order to further buttress his submissions on the point, the learned counsel for the respondent Nos. 1 and 2 has referred to the case of United India Assurance Co. Ltd. Vs Musstt. Sakila Begum and others, MAC Appeal No.88 of 2013 decided by this Court by judgment and order dated 31.08.2017, and he has submitted that this Court had considered the various judgments of the Hon ble Supreme Court viz., 1). HDFC Chubb General Insurance Co. Ltd Vs. Shantidevi Rajbalsingh Thakur, 2008 (8) CJ 1280, 2). Deepal Girishbhai Soni (supra), 3). Sunil Kumar (supra), 4). Dhanraj Vs. New India Assurance Company Limited (2004) 8 SCC 553, 5). Sadanand Mukhi (supra), 6). Ningamma (supra), 7). Rajasthan State Road Transport Vs. Kailash Nath Kothari, AIR 1997 SC 3444. Page 4 of 7
This Court had also considered the judgment given by the Division Bench of this Court in the case of United India Insurance Company Limited Vs. H. Lalhmingliana, 2006 (2) GLT 538 and it was held that in view of extra premium of Rs.50/- to cover personal accident case by the owner/ driver for the amount of Rs.1,00,000/- (Rs. One lakh only), the Insurance Company by virtue of contract of policy is obliged to pay the said sum of Rs.1,00,000/- to the claimant as contractual liability and the total award of Rs.3,36,000/- (Rs.Three lakh thirty six thousand only) with interest at the rate of 9% from the date of filing of the claim petition was upheld by holding that the sum of Rs.1,00,000/- out of the awarded amount was payable as per the contract of policy and the rest of the amount shall be paid by the owner of the vehicle. Thus, the owner and insurer of the vehicle were directed to satisfy the award as indicated above. 12. In order to counter the decision rendered by the Hon ble Single Bench of this Court in the case of Musstt. Sakila Begum and others (supra), the learned counsel for the appellant has relied on another decision rendered by the Hon ble Single Bench of this Court in the case of Bajaj Allianz General Insurance Company Limited Vs Smrita Saikia and others, 2011 (5) GLT 563, and has submitted that in the said case it was held by this Court that for passing payment of contractual amount this Court, the MACT will have no jurisdiction to entertain the claim. Relying on the said judgment, it is submitted that it has been well settled by the Court that the MACT had committed error in passing impugned judgment by directing the appellant/ Insurance Company to make payment of the contractual amount. It is submitted that in the said case of Smrita Saikia and another (supra), this Court had held that when a Court of Tribunal is established for a particular purpose, it has to act only for the said purpose and for no other purpose. Page 5 of 7
13. Having considered the rival submissions made by the learned counsel for the both sides as it is found that the case of Sinitha (supra) had been referred for a larger Bench in the case of Sunil Kumar and another (supra), the law relating to claim under section 163A of the Motor Vehicles Act must be treated as per the ratio of the case of Ningamma and another (supra). Para 22 and 24 of the said case of Ningamma and another (supra) are quoted below: 22. When we analyze the impugned judgment of the High Court in terms of aforesaid discussion, we find that the counsel for the insurance company himself contended before the High Court that the policy of insurance was an Act policy and the risk that is covered is only in respect of persons contemplated under Section 147 of the MVA. It is the finding of fact which we have also upheld in this Judgment that the deceased was authorised by the owner of the vehicle to drive the vehicle. When we examined the facts of the present case in view of the aforesaid submission made, we are of the opinion that such an issue was required to be considered by the High Court in the light of the facts and evidence adduced in the case. On consideration of the Judgment and Order passed by the High Court we find the same to be sketchy on the aforesaid issue as to whether the claim could be considered under the provisions of Section 166 of the MVA. In this connection, reference can be made to a judgment of this Court in the case of Oriental Insurance Company Ltd. vs. Rajni Devi and Others (supra), wherein, it was held that where compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the insurance company would depend upon the terms thereof. 24. There are indeed cases like New India Assurance Company Limited vs. Sadanand Mukhi and Others, (2009) 2 SCC 417, wherein, the son of the owner was driving the vehicle, who died in the accident, was not regarded as third party. In the said case the court held that neither Section 163-A nor Section 166 would be applicable. 14. Moreover, in respect of the contractual liability of the Insurance Company limited to the extent of Rs.1,00,000/- (Rs. One lakh only), which arises on acceptance of additional premium of Rs.50/- for the said contractual liability, it appears to this Court that the case of Smrita Saikia (supra) had not been placed before the Hon ble Single Bench of this Court while deciding the case of Musstt. Sakila Begum and others (supra). Page 6 of 7
15. This Court is of the view that the said decision of this Court rendered in the case of Smrita Saikia (Supra) is contradictory to the ratio laid down in the case of Musstt. Sakila Begum (supra). Consequently, this Court is of the view that the matter be placed before the Hon ble The Chief Justice to consider if the matter can be referred to a larger Bench for the correct interpretation of the scope of Motor Accident Claims Tribunal to decide for payment of contractual liability of the insurance company. The question for reference is formulated as under:- Whether the MACT or this Court, entertaining an appeal, has the competence of directing the Insurance Company to make payment of the contractual amount under the Package policy to the claimant? 20. A copy of the judgment of the case of Smrita Saikia and another (supra) and Musstt. Sakila Begum and others (supra) is kept on record. JUDGE Parimita Page 7 of 7