National Insurance Co. Ltd. vs Ashalata Bhowmik

REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9100 OF 2018 (Arising out of SLP (Civil) No. 20085 of 2017)

NATIONAL INSURANCE CO. LTD. ….. APPELLANT

VERSUS

ASHALATA BHOWMIK AND ORS. ….. RESPONDENTS

JUDGMENT

S.ABDUL NAZEER, J.

1. Leave granted.

2. National Insurance Co. Ltd. has filed this appeal challenging the

judgment and order in MACAP No.25/2015 dated 15 th March, 2017 whereby

the High Court of Tripura at Agartala has directed the appellant-insurer to pay

the compensation to the respondents awarded by the Motor Accidents Claims

Tribunal, West Tripura, Agartala (for short 'the Tribunal') in a sum of Signature Not Verified

Rs.10,57,800/- with interest at the rate of 8% per annum from the date of filing Digitally signed by SANJAY KUMAR Date: 2018.08.31 14:53:34 IST Reason:

of the claim petition till the date of payment.

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3. The first respondent is the mother of deceased Dilip Bhowmik. The

second respondent is his wife and respondent Nos. 3 and 4 are his children. On

20.5.2012 at about 7.00 p.m. Dilip Bhowmik was returning from Kathaltali to

his house by driving his vehicle bearing No. TR-01-U-0530. When he reached

near the bridge of Agartala Railway Station situated on the bye-pass under

Amtali police station, he met with an accident and sustained grievous injuries

on his person. He was initially rushed to Dr. B.R. Ambedkar Memorial

Teaching Hospital, Hapania. Thereafter, he was referred to AGMC and GBP

hospital, Agartala, where he was declared dead. At the time of the accident he

was aged 43 years. The respondents alleged that the deceased was a

businessman and his monthly income was Rs.15,000/-. They filed a claim

petition seeking compensation amounting to Rs.68,15,000/-. The claim

petition was opposed by the appellant-insurer. The Tribunal passed an award

granting total compensation in a sum of Rs. 10,57,800/-.

4. The appellant challenged the said award of the Tribunal before the

High Court mainly contending that the deceased himself was the owner-cum-

driver of the offending vehicle. He was not a third party within 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 to pay the compensation.

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5. The High Court accepted the contention of the appellant that the

deceased was not a third party and that the accident had occurred due to the

rash and negligent driving of the offending vehicle. However, the High Court

directed the appellant to pay the compensation with a rider that the said order

shall not be treated as a precedent. On perusal of the policy of the insurance,

the High Court in the course of the order observed that indemnification

extended to personal accident of the owner-cum-driver was limited to the

extent of Rs.2,00,000/-. The finding of the High Court on this question is as

under:

"As it has been established by the claimant- respondents that the premium was paid for the personal accident the insurance company is liable to pay the said compensation, even though it is limited to Rs.2,00,000/- to the claimant- respondents. There is no challenge, however, against the determination of the compensation."

6. Learned counsel for the appellant has contended that the deceased

himself was driving the offending vehicle and has caused the accident. No

other vehicle was involved in the accident. He cannot be treated as a third

party. Therefore, the High Court has rightly held that the claim petition filed

by the respondents was not maintainable. In view of this finding, the High

Court was not justified in directing the appellant to pay the compensation.

3 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 learned counsel

made at the Bar and perused the materials placed on record. It is an admitted

position that the deceased was the owner-cum-driver of the vehicle in question.

The accident had occurred due to the rash and negligent driving of the vehicle

by the deceased. No other vehicle was involved in the accident. The deceased

himself was responsible for the accident. The deceased being the owner of the

offending vehicle was not a third party within the meaning of the Act. The

deceased was the victim of his own action of rash and negligent driving. A

Claimant, in our view, cannot maintain a claim on the basis of his own fault or

negligence and argue that even when he himself may have caused the accident

on account of his own rash and negligent driving, he can nevertheless make the

insurance company to pay for the same. Therefore, the respondents being the

LRs of the deceased could not have maintained the claim petition 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 case where the owner

himself was driving the vehicle which due to his negligence dashed with a tree

4 on the roadside as a result of which he died. The Court held that the claim

petition filed by his LRs was not maintainable. It was held thus:-

"10. The deceased was the owner of the vehicle. For the reasons stated in the claim petition or otherwise, he himself was to be blamed for the accident. The accident did not involve motor vehicle other than the one which he was driving. The question which arises for consideration is that the deceased himself being negligent, the claim petition under Section 166 of the Motor Vehicles Act, 1988 would be maintainable.

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

9. Therefore, the High Court was not justified in directing the

appellant/insurer to pay the compensation determined by the Tribunal. Since

the indemnification extended to personal accident of the deceased is limited to

Rs. 2,00,000/- under the contract of insurance, the respondents are entitled for

the said amount towards compensation. Hence, the appellant is directed to

deposit the said sum of Rs. 2,00,000/- with interest @ 9 per cent per annum

5 from the date of the Claim Petition till the date of deposit with the Tribunal

within a period of four weeks from today.

10. The appeal is allowed in the aforesaid terms without any order as to

costs.

……………………………J. (N.V. RAMANA)

……………………………J. (S. ABDUL NAZEER)

New Delhi;

August 31, 2018.

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