Civil Judge Hdfc Chubb Insurance Co Ltd ­ vs Geetaben Wd/O Pritamsinh Aliaspenal Bhupatsinh Alias & 7 ­ Defendants

1. In connection with the vehicular accident that took place on 24.08.2006 in which Penal alias Pritamsinh Bhupatsinh expired, the legal heirs of deceased preferred claim petition being M.A.C.P. No.1616/2006 u/s.163­A of the Motor Vehicles Act before the Motor Accident Claims Tribunal (Aux.), (FTC­1), Panchmahals at Godhra. The said claim petition was allowed in part by judgment and award dated 13.03.2009. Being aggrieved by the same, the appellant­Insurance Company has preferred the present appeal.

2. It has been mainly contended on behalf of the appellant­Insurance Company that deceased was driver of the vehicle insured with the appellant­Insurance Company and that for negligence of the deceased himself, claim petition u/s.163­A of the Motor Vehicles Act was not maintainable. In support of the above submission, reliance has been placed on the decision of the Apex Court in the case of Nigamma and another v. United India Insurance Company Ltd., (2009) 13 SCC 710, more particularly, on the observations made in Paras­19 & 20, which reads as under;

“19. In Oriental Insurance Co. Ltd. v. Rajni Devi wherein one of us, namely, Hon'ble S.B. Sinha, J. was a party, it has been categorically held that in a case where third party is involved, the liability of the insurance company would be unlimited. It was also held in the said decision that where, however, 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 claimant against the insurance company would depend upon the terms thereof.

20. It was held in Oriental Insurance Co. Ltd. case that Section 163­A of the MVA cannot be said to have any application in respect of any accident wherein the owner of the motor vehicle himself is involved. The decision further held that the question is no longer res integra. The liability under Section 163­A of the MVA is on the owner of the vehicle. So a person cannot be both, a claimant as also a recipient, with respect to claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163­A of the MVA.”

3. Heard learned counsel for the parties. Though served none appears on behalf of respondents no.1 to 6. It appears from the record that the deceased was driving the vehicle owned by opponent no.3 and insured with appellant­Insurance Company at the time of accident. It does not appear from the pleadings of the claimants that the deceased was driving the said vehicle in the capacity of employee (driver) of opponent no.3 at the relevant point of time. Considering the facts of the case and in view of the principle rendered in Nigamma's case (supra), I am of the considered opinion that the Tribunal ought to have exonerated the Insurance Company from the liability of satisfying the claim.

4. For the foregoing reasons, the appeal is allowed. The impugned award passed by the Tribunal is quashed and set aside only qua the imposition of liability upon the appellant­Insurance Company. The amount deposited by the Insurance Company, in pursuance of the award, shall be refunded. The impugned award stands modified to the above extent. The appeal stands disposed of accordingly. No order as to costs.

[K.S. JHAVERI, J.]

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