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2016 Supreme(AP) 331
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
U. DURGA PRASAD RAO, J.
Bajaj Allianz General Insurance Co. Ltd. - Appellant
Vs.
Ande Sarawathi and others - Respondents
M.A.C.M.A No. 615 of 2012
Decided On : 12-08-2016
For the Appellant : T. Maahender Rao
For the Respondent: B.V Krishna Reddy
Headnote:
Motor Vehicles Act, 1988 – Section 166 – Accident – Compensation granted – Award – Case of claimants is that on the intervening night when the deceased along with his friend PW2 was going on motorcycle belonging to 1st respondent, after crossing Rachuru village the deceased hit the road side electrical pole and died on the spot. On this plea, the claimants filed M.V.O.P under Section 166 of Act, 1988 and claimed compensation against respondents 1 and 2 who are owner and insurer of the motorcycle – Whether policy could be extended to the owner/driver in case of an accident caused due to his own fault – Held, In the light of above authorities which have a direct bearing on the case on hand, claimants cannot lay a claim under Section 163A of MV Act as contended by learned counsel for appellant/Insurance Company and there can be no demur in it. It should be noted that in the instant case, the claim was laid not under Section 163A but under Section 166 of MV Act i.e. under fault liability principle. When claim is laid as aforesaid, the burden of proof will be on the claimants to establish the fault of the concerned driver and owner of the vehicle. But in the instant case, admittedly the accident was occurred due to the fault of deceased himself, as already observed supra – Therefore, in normal circumstances, the claimants will not be entitled to compensation under Section 166 also – answer would be yes for the reason that hypothetically if an accident is caused to the owner while riding insured vehicle due to the fault of another vehicle, he will claim compensation against the owner and insurer of the offending vehicle in which case he need not fall back on his own insurer basing on the additional premium paid by him. Therefore, the aforesaid additional premium squarely covers the instances where an accident is caused due to the fault of owner/driver himself. Since in the instant case the deceased deemingly stepped into the shoes of the owner, such benefit accrues to him also – Therefore lower Tribunal was right in awarding compensation – Contention of the Insurance Company as can be seen from its counter was not to the effect that it was liable only to the extent of Rs. 1 lakh and not more and on the other hand, it contested the matter for three years and therefore, the lower Tribunal in usual course awarded costs and interest against the Insurance Company. I therefore find no force in the contention of appellant that the Insurance Company should not be mulcted with interest and costs – MACMA dismissed.
U. DURGA PRASAD RAO, J.
Aggrieved by the Award dated 21.09.2008 in M.V.O.P No. 717 of 2008 passed by the Chairman, MACT-cum-I Additional District Judge, West Godavari, Eluru (for short the Tribunal), the 2nd respondent in the OP/Bajaj Allianz General Insurance Company Limited preferred the instant appeal.
2. The factual matrix of the case is thus:
(a) The case of the claimants is that on the intervening night of 10/11.06.2006 at about 2 AM, when the deceased Ande Adinarayana Rao @ Ranga Babu along with his friend Prathi Anjaneyulu (PW2) was going on motorcycle bearing No. AP 37 AJ 3461 belonging to 1st respondent, after crossing Rachuru village the deceased hit the road side electrical pole and died on the spot. On this plea, the claimants filed M.V.O.P No. 717 of 2008 under Section 166 of Motor Vehicles Act, 1988 (for short M.V Act) and claimed Rs. 6,00,000/- as compensation against respondents 1 and 2 who are owner and insurer of the motorcycle.
(b) R1 remained exparte.
(c) Respondent No. 2.Insurance Company filed counter denying all the material averments made in the petition and contended that as the deceased stepped into the shoes of the insured, he is not a third party and his risk will not cover under the terms of the policy. R2 also contended that since the accident was occurred due to the fault of deceased himself the claim of legal representatives cannot be entertained. R2 further contended that insured has not paid any extra premium to cover the risk of the deceased and there is no special contract between the insured and insurer, R2 is not liable to pay any compensation. Finally, R2 contended that compensation claimed is highly excessive and exorbitant and thus prayed to dismiss the O.P
(d) During trial, PWs.1 to 3 were examined and Exs.A1 to A5 were marked on behalf of claimants. RWs.1 and 2 were examined and Exs.B1 and B2 were marked on behalf of 2nd respondent.
(e) The Tribunal considering the oral and documentary evidence held that the deceased is not a third party as he stepped into the shoes of the owner but as the Insurance Company collected premium of Rs. 50/- it will cover any person who stepped into the shoes of the owner and accordingly awarded compensation of 1 lakh with proportionate costs and interest at 7.5% p.a
3. Hence, the appeal by Insurance Company.
4. The parties in this appeal are referred as they were arrayed before the lower Tribunal.
5. Heard arguments of Sri. T. Mahender Rao, learned counsel for appellant/Insurance Company and Sri. B.V Krishna Reddy, learned counsel for R1 to R4 claimants. Though notice sent to R5.owner was served, but there is no representation on his behalf.
6. Challenging the award fastening liability on the Insurance Company to the extent of Rs. 1 lakh, the main plank of argument of Sri. T. Mahender Rao, learned counsel for appellant/Insurance Company is that by facts and evidence the deceased was not an employee under insured but he borrowed the vehicle from R1 and met with an accident and died due to his own fault and in that view his LRs. cannot lay any claim either under Section 163-A of MV Act since he was not a third party or under Section 166 because fault in the accident was with the deceased himself and therefore, the Tribunal ought to have dismissed the claim because policy would not cover his risk. He would alternatively argue that if it is held that Insurance Company is liable for the claim on the ground that the policy was in force under which it collected an additional amount of Rs. 50/- to extend personal accident coverage to owner-driver and the deceased deemingly stepped into the shoes of the owner, still the liability of Insurance Company cannot be fixed more than Rs. 1 lakh as contracted under Ex.B1 policy and the Tribunal in that event, ought not to have granted costs and interest against the appellant. He relied upon the following decisions to buttress his point that when the accident was occurred due to the fault of the deceased himself, his LRs. c
