NATIONAL INSURANCE CO. LTD. versus ASHALATA BHOWMIK AND ORS. on 31 August 2018

NATIONAL INSURANCE CO. LTD.

v.

ASHALATA BHOWMIK AND ORS.

(Civil Appeal No.9100 of 2018)

AUGUST 31, 2018

[N.V. RAMANA AND S. ABDUL NAZEER, JJ.]

Motor Vehicles Act, 1988 – s.166 – Fatal accident – Victimwhile driving his vehicle met with an accident and died – Claimpetition u/s.166 – Tribunal granted compensation of Rs.10,57,800/- –High Court upheld the compensation determined by the Tribunal –On appeal, held: The accident had occurred due to the harsh andnegligent driving of the deceased – No other vehicle was involvedin the accident – Deceased was himself responsible for the accident –Deceased being the owner of the offending vehicle was not a thirdparty within the meaning of the Act – A Claimant cannot maintain aclaim on basis of his own fault or negligence – Thus, respondentsbeing LRs of the deceased could not have maintained the claimpetition u/s.166 of the Motor Vehicles Act – However, since theindemnification extended to personal accident of the deceasedlimited to Rs.2,00,000/- under the contract of insurance, therespondents entitled to the said amount towards compensation.

Allowing the appeal, the Court

HELD: 1. It is an admitted position that the deceased was the owner-cum-driver of the vehicle in question. The accidenthad occurred due to the rash and negligent driving of the vehicleby the deceased. No other vehicle was involved in the accident.The deceased himself was responsible for the accident. Thedeceased being the owner of the offending vehicle was not a thirdparty within the meaning of the Act. The deceased was the victimof his own action of rash and negligent driving. A Claimant, cannotmaintain a claim on the basis of his own fault or negligence andargue that even when he himself may have caused the accidenton account of his own rash and negligent driving, he cannevertheless make the insurance company to pay for the same.Therefore, the respondents being the LRs of the deceased could

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Anot have maintained the claim petition filed under Section 166 ofthe Motor Vehicles Act. [Para 7] [874-B-D]

2. The High Court was not justified in directing theappellant/insurer to pay the compensation determined by theTribunal. Since the indemnification extended to personal accidentBof the deceased is limited to Rs. 2,00,000/- under the contract ofinsurance, the respondents are entitled for the said amounttowards compensation. Hence, the appellant is directed to depositthe said sum of Rs. 2,00,000/- with interest @ 9 per cent perannum. [Para 9] [875-A-B]

COriental Insurance Co. Ltd. v. Jhuma Saha (Smt) and Ors.(2007) 9 SCC 263 : [2007] 1 SCR 979 – referred to.

Case Law Reference

[2007] 1 SCR 979referred toPara 8

DCIVIL APPELLATE JURISDICTION : Civil Appeal No. 9100of 2018.

From the Judgment and Order dated 15.03.2017 of the High Courtof Tripura, Agartala in MAC AP No. 25 of 2015.

K. K. Bhat for Ranjan Kumar Pandey, Adv. for the appellant.EMs. Nidhi, Adv. for the respondents.

The Judgment of the Court was delivered by

S. ABDUL NAZEER, J. 1. Leave granted.

2. National Insurance Co. Ltd. has filed this appeal challengingFthe judgment and order in MACAP No.25/2015 dated 15[th] March, 2017whereby the High Court of Tripura at Agartala has directed the appellant-insurer to pay the compensation to the respondents awarded by the MotorAccidents Claims Tribunal, West Tripura, Agartala (for short ‘theTribunal’) in a sum of Rs.10,57,800/- with interest at the rate of 8% perGannum from the date of filing of the claim petition till the date of payment.

3. The first respondent is the mother of deceased Dilip Bhowmik.The second respondent is his wife and respondent Nos. 3 and 4 are hischildren. On 20.5.2012 at about 7.00 p.m. Dilip Bhowmik was returningfrom Kathaltali to his house by driving his vehicle bearing No. TR-01-U-H0530. When he reached near the bridge of Agartala Railway Station

situated on the bye-pass under Amtali police station, he met with anaccident and sustained grievous injuries on his person. He was initiallyrushed to Dr. B.R. Ambedkar Memorial Teaching Hospital, Hapania.Thereafter, he was referred to AGMC and GBP hospital, Agartala, wherehe was declared dead. At the time of the accident he was aged 43years. The respondents alleged that the deceased was a businessmanand his monthly income was Rs.15,000/-. They filed a claim petitionseeking compensation amounting to Rs.68,15,000/-. The claim petitionwas opposed by the appellant-insurer. The Tribunal passed an awardgranting total compensation in a sum of Rs. 10,57,800/-.

4. The appellant challenged the said award of the Tribunal beforethe High Court mainly contending that the deceased himself was theowner-cum-driver of the offending vehicle. He was not a third partywithin the meaning of the Motor Vehicles Act, 1988 (for short ‘the Act’).The accident had occurred due to the negligence of the deceased.Therefore, the appellant, being insurer of the vehicle, was not liable topay the compensation.

5. The High Court accepted the contention of the appellant thatthe deceased was not a third party and that the accident had occurreddue to the rash and negligent driving of the offending vehicle. However,the High Court directed the appellant to pay the compensation with arider that the said order shall not be treated as a precedent. On perusalof the policy of the insurance, the High Court in the course of the orderobserved that indemnification extended to personal accident of the owner-cum-driver was limited to the extent of Rs.2,00,000/-. The finding ofthe High Court on this question is as under:

“As it has been established by the claimant-respondents that thepremium was paid for the personal accident the insurancecompany is liable to pay the said compensation, even though it islimited to Rs.2,00,000/- to the claimant-respondents. There is nochallenge, however, against the determination of thecompensation.”

6. Learned counsel for the appellant has contended that thedeceased himself was driving the offending vehicle and has caused theaccident. No other vehicle was involved in the accident. He cannot betreated as a third party. Therefore, the High Court has rightly held thatthe claim petition filed by the respondents was not maintainable. In view A

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Aof this finding, the High Court was not justified in directing the appellantto pay the compensation. Learned counsel appearing for the respondents,on the other hand, has sought to justify the impugned order.

7. We have carefully considered the submissions of the learnedcounsel made at the Bar and perused the materials placed on record. ItBis an admitted position that the deceased was the owner-cum-driver ofthe vehicle in question. The accident had occurred due to the rash andnegligent driving of the vehicle by the deceased. No other vehicle wasinvolved in the accident. The deceased himself was responsible for theaccident. The deceased being the owner of the offending vehicle wasnot a third party within the meaning of the Act. The deceased was theCvictim of his own action of rash and negligent driving. A Claimant, in ourview, cannot maintain a claim on the basis of his own fault or negligenceand argue that even when he himself may have caused the accident onaccount of his own rash and negligent driving, he can nevertheless makethe insurance company to pay for the same. Therefore, the respondentsDbeing the LRs of the deceased could not have maintained the claimpetition filed under Section 166 of the Motor Vehicles Act.

8. This Court in Oriental Insurance Co. Ltd. v. Jhuma Saha(Smt) and Ors. (2007) 9 SCC 263, was considering a similar casewhere the owner himself was driving the vehicle which due to hisEnegligence dashed with a tree on the roadside as a result of which hedied. The Court held that the claim petition filed by his LRs was notmaintainable. It was held thus:- “10.The deceased was the owner of the vehicle. For thereasons stated in the claim petition or otherwise, he himself wasto be blamed for the accident. The accident did not involveFmotor vehicle other than the one which he was driving. Thequestion which arises for consideration is that the deceasedhimself being negligent, the claim petition under Section 166 ofthe Motor Vehicles Act, 1988 would be maintainable.

11. Liability of the insurer Company is to the extent ofindemnification of the insured against the respondent or an injuredperson, a third person or in respect of damages of property. Thus,if the insured cannot be fastened with any liability under theprovisions of the Motor Vehicles Act, the question of the insurerbeing liable to indemnify the insured, therefore, does not arise”.

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NATIONAL INSURANCE CO. LTD. v. ASHALATA BHOWMIKAND ORS. [S. ABDUL NAZEER, J.]

9. Therefore, the High Court was not justified in directing theappellant/insurer to pay the compensation determined by the Tribunal.Since the indemnification extended to personal accident of the deceasedis limited to Rs. 2,00,000/- under the contract of insurance, the respondentsare entitled for the said amount towards compensation. Hence, theappellant is directed to deposit the said sum of Rs. 2,00,000/- with interest@ 9 per cent per annum from the date of the Claim Petition till the dateof deposit with the Tribunal within a period of four weeks from today.

10. The appeal is allowed in the aforesaid terms without any orderas to costs.

Ankit Gyan Appeal allowed.

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