A claim for a pillion rider's death is maintainable against the insurer even if the owner died in the same accident. Since ownership doesn't transfer automatically, a pillion rider who died before the owner remains a third party, and the cause of action survives under Section 155.

ORDER :

PAVAN KUMAR DWIVEDI, J.

This appeal under Section 173 of the Motor Vehicles Act, 1988 (for brevity 'MVA') filed by the appellants/claimants raises a significant question that in case of death of owner and his wife in an accident involving insured vehicle, if a claim is filed by their children for the death of wife and not the owner without impleading anyone else except the insurance company, then whether such claim is maintainable or not? The challenge is made to the impugned award dated 03.11.2022 passed by the Claims Tribunal in Claim Case No. 160/2019.

2. The facts of the present case are that on 04.03.2019 deceased Ratanbai was going along with her husband Shivnarayan on the insured vehicle i.e. motor cycle bearing registration No.MP 42 MF 2391 as a pillion rider from Khilchipur to their village Paldiya. At about 7:00 pm in the evening, when they reached near Devmaharaj place at village Lima Chouhan between Sandawta Sarangpur road, Shivnarayan was driving the motor cycle in a rash and negligent manner because of which the bike got disbalanced resulting in felling down of Ratanbai. She sustained grievous injuries and was tried to be taken to hospital however, she died on the way. The rider/owner of the vehicle Shivnarayan also sustained grievous injuries and was taken to Gokuldas Hospital for treatment. But he succumbed to the injuries and died during treatment. As such the owner of the vehicle and his wife died in the accident. The owner was the rider and wife was the pillion rider. The appellants/claimants are the son and daughter of the above two deceased persons. They filed claim petition under Section 166 of the MVA for death of Ratanbai. It is to be taken note of that they did not file any claim petition for death of owner of the vehicle Shivnarayan but for the death of their mother Ratanbai who was the pillion rider.

3. The Claims Tribunal recorded the evidence and concluded that Ratanbai died due to the injuries sustained by her in the accident caused due to rash and negligent driving of Shivnarayan. It also concluded that the vehicle was duly ensured with the respondent/insurance company and there was no breach of the terms of insurance policy found by the Tribunal. The Tribunal then quantified the amount of compensation to the tune of Rs. 10,79,672/-. However, while considering the issue of payment, the compensation was denied by holding in para 52 of the impugned award that the deceased Ratanbai was the wife of deceased Shivnarayan who was the owner. Thus, on the death of Shivnarayan, Ratanbai will become owner of the vehicle being his legal representative but as Ratanbai has also died thus, the claimants will become owner of the vehicle and consequently, Ratanbai being not the third party, the insurance company is not responsible for paying compensation. As such, the claim petition was dismissed.

4. Learned counsel appearing for the appellants/claimants has raised a plea that merely being related to the insured does not mean that the said person is not a third party unless they are the insured themselves or their representative. He submits that the present is a case of peculiar facts. In the present case there is owner of the vehicle who died in the accident and wife of the owner of the vehicle who also died in the same accident and children of both of them are the claimants. The claim petition was consciously filed for death of Ratanbai-the wife and not for Shivnarayan-the owner. As such, Ratanbai being the wife of the owner has to be treated as third party and not his legal representative because she, in fact died before Shivnarayan because Ratanbai-wife died on the way to hospital whereas Shivnarayan-the owner died during treatment in the hospital. Thus, the death of Ratanbai occurred while the owner Shivnarayan was alive. Therefore, the Claims Tribunal has wrongly concluded that Ratanbai was legal representative of Shivnarayan. Thus, she cannot be treated as legal representative of Shivnarayan.

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