Delhi High Court High Court

National Insurance Co.Ltd. vs Smt.Sheela & Ors. on 3 August, 2011

Delhi High Court
National Insurance Co.Ltd. vs Smt.Sheela & Ors. on 3 August, 2011
Author: Indermeet Kaur
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Judgment reserved on : 28.7.2011
                                  Judgment delivered on : 03.8.2011

+                      MAC APPEAL No.17/2009


NATIONAL INSURANCE CO.LTD.          ...........Appellant
                 Through: Mr.Pradeep Gaur, Advocate.

                       Versus

SMT.SHEELA & ORS.                            ..........Respondents
                             Through:   Mr.Navneet Goyal, Advocate.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?                   Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J.

1. The Award impugned is the Award dated 26.8.2008 whereby

the legal heirs of deceased Davinder had been awarded

compensation in the sum of Rs.2.90,400/- along with interest @

7.5 % per annum. This claim petition had been filed under Section

163A of the M.V.Act .

2. Facts were that on the intervening night of 17/18.4.2005

Davinder @ Babloo and Lakshman along with their friend were

MAC APPEAL No.17/2009 Page 1 of 6
going on their motorcycle; the motorcycle suffered an accident an

unknown vehicle hit the motorcycle from behind as a result of

which the motorbike and the riders were thrown of balance.

Davinder and Lakshman fell down; they were crushed by some

unknown vehicle; they both died. The vehicle was being driven

by Lakshman; Davinder was the pillion rider. Sheela is the

claimant of deceased Davinder.

3. The appellant has filed the appeal assailing the award on

three grounds; first contention is that the deceased Lakshman has

no valid driving licence; secondly there was a breach of condition

of the policy; three persons were sitting on the motorcycle at the

time when the accident occurred; and lastly that it was hit and ran

case as such the claim cannot be entertained under Section 163A

of the M.V.Act; claim could only have entertained under Section

163 of the M.V.Act for which there is a fixed compensation of

`50,000/-.

4. Arguments have been rebutted. It is pointed out that since

the deceased had died in a road accident; even if the offending

vehicle has not been caught, Section 163A being a case of no

fault liability, it is only the involvement of the vehicle which has to

be established; which in this case has been fully established.

MAC APPEAL No.17/2009 Page 2 of 6
Evidence shows that the deceased had a valid driving licence;

there has also been no breach of conditions of the policy. The

Award calls for no interference.

5. Record shows that in this case the victim Davinder was the

pillion rider of the driver Lakshman; there is no dispute to the fact

that a pillion rider is covered as a “third party risk” and if the

claim is otherwise found to be in order the appellant/Insurance

Company is liable to pay compensation to the legal heirs of the

deceased pillion rider. Further in terms of the notification.

25.3.1977 issued by the Tariff Advisory Committee, Insurance

Companies have been made liable even in the case of pillion rider.

6. The submission of the learned counsel for the appellant that

the deceased Lakshman did not hold a valid driving licence is

without any merit. The respondent has produced two witnesses in

defence but none as deposed anything about the alleged factum

that the deceased did not have a valid driving licence.

7. The scheme of the Act by the promulgation of Section 163 of

the M.V.Act was intended to be incorporated as a special concern

for the safety and social security of such a person who had either

met with an accident himself resulting in injuries or the concern

for his legal representatives where the victim had died. The non-

obstante clause in this section dispenses with proof of fault; it is
MAC APPEAL No.17/2009 Page 3 of 6
based on a no fault liability; whole purpose being that the

claimants should as early as possible be granted the beneficial

provision of the Act and compensation be awarded to them in

terms of the structured formula prescribed in the second schedule

of the Act.

8. The Apex Court in National Insurance Company Vs. Swarn

Singh & Ors. reported in 2004(1) TAC 321 (Supreme Court) had

in this context interalia held noted as under:

(iii) The breach of policy condition e.g. disqualification of driver of
invalid driving licence of the driver as contained in sub-section (2)

(a)(ii) of Section 149, have to be proved to have been committed
by the insured for avoiding a liability by the insurer. Mere
absence, fake or invalid driving licence or disqualification of the
driver for driving at the relevant time, are not in themselves
defences available to the insurer against either the insured or the
third parties. To avoid its liability towards insured, the insurer has
to prove that the insured was guilty of negligence and failed to
exercise reasonable care in the matter of fulfilling the condition of
the policy regarding use of vehicles by duly licensed driver or one
who was not disqualified to drive at the relevant time.”

9. In a judgment of Gujrat High Court in India Insurance

Company Ltd. Vs. Muna Maya Basant Vs. reported 2001 ACJ

940, a Bench of the Gujrat High Court has noted that in a

claim petition under Section 163 A of the M.V.Act the scope

of raising a plea in defence about the challenge to the driving

MAC APPEAL No.17/2009 Page 4 of 6
licence is not permissible.

10. Thus a mere plea that there was absence of a valid driving

licence of the driver would not by itself entitle the Insurance

Company to avoid its liability. This argument is accordingly

rejected.

11. The appellant has also failed to show that there has been

breach of any of the terms of the policy; the policy in fact

negatives his submission. The conditions of the policy noted

herein below state:

Limitation as to use:

The policy covers use of the Vehicle for any purpose other than

a) Hire or Reward

b) Carriage of Goods (other than samples or personal Luggage)

c) Organized racing

d) Pace making

e) Speed Testing and Reliability Trials

f) Use in connection with Motor Trade”

12. Even as per the case of the appellant Lakshman the

deceased was driving the motor cycle; his contention is that three

persons were riding on the motor cycle when the fateful accident

occurred; this in no manner amounts to a breach of any of the

terms of the policy conditions. Learned counsel for the appellant

has also failed to draw attention of this Court to any such

condition in the policy. This argument is also without any merit.

MAC APPEAL No.17/2009 Page 5 of 6

13. Section 163A introduced by the amendment of 1994 has

introduced the principle of „no fault liability‟; being a social

security provision, this provision is applicable only where the

annual income of the deceased/victim does not exceed `40,000/-

per annum and the compensation under Section 163 A has to be

awarded strictly in accordance with the structured formula as

contained in the second schedule. Section 163 has laid down the

scheme for payment of compensation in „hit and run‟ motor

accident claim cases. Section 163 A does not become

inapplicable even if it is a „hit and run‟ case; condition to be

fulfilled for the applicability of Section 163A is that the annual

income of the victim must not be more than `40,000/- per annum;

further the compensation has to be awarded as per the structured

formula contained in the Second Schedule of the Act. This

argument of the learned counsel for the appellant is also without

any merit.

14. Appeal dismissed.

INDERMEET KAUR, J.

AUGUST 03, 2011
nandan

MAC APPEAL No.17/2009 Page 6 of 6