Whether the deceased, who borrowed the offending vehicle from the owner of the vehicle will step into the shoes of the owner?

HIGH COURT OF ANDHRA PRADESH

WEDNESDAY ,THE TENTH DAY OF JANUARY

TWO THOUSAND AND TWENTY FOUR

PRSENT

THE HONOURABLE SRI JUSTICE B V L N CHAKRAVARTHI

MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 2662 OF 2014

Between:

1. M/S THE NEW INDIA ASSURANCE COMPANY LIMITED,

ANANTHAPUR. Rep.by its Divisional Manager,

Ananthapur.

...PETITIONER(S)

AND:

1. SMT. MADDINENI PUSHPAVATHI AND 4 OTHERS W/o late

M.Venkatarangaiah

Sinecure

R/o 60 Ft. Road,

7th Cross, D.No. 18/775-137-BB,

Guntakal Town, Ananthapur Dist.

2. Sri. Maddineni Chinna Ranganna S/o late Balappa

Agriculturist

R/o 60 Ft. Road,

7th Cross, D.No. 18/775-137-BB,

Guntakal Town, Ananthapur Dist.

3. Ms. Bindu, D/O Late M.Venkata Rangaiah

minor,

R/o 60 Ft. Road,

7th Cross, D.No. 18/775-137-BB,

Guntakal Town, Ananthapur Dist.

4. M/s Lakshmi Prasanna D/O Late M.Venkata Rangaiah

minor,Res.3 and 4 are rep.by their grand mother Res.No.1

R/o 60 Ft. Road,

7th Cross, D.No. 18/775-137-BB,

Guntakal Town, Ananthapur Dist.

5. Sri S.Rama Rao S/o Sri S.Nagaiah

D.No. 6/235-G

Porter Line,

Guntakal Town,

...RESPONDENTS

Counsel for the Petitioner(s): A JAYANTHI

Counsel for the Respondents: B SIVA KESAVA REDDY

The Court made the following: ORDER

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HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

****

M.A.C.M.A.No.2662 OF 2014

Between:

Ms/.The New India Assurance Company Limited,

Rep. by its Divisional Manager,

Ananthapur.

 …. APPELLANT

 Versus

1. Smt.Maddineni Pushpavathi,

 W/o.Late M.Venkata Rangaiah,

 40 Years, Hindu.

2. Sri.Maddineni Chinna Ranganna,

 S/o.Late Balappa,

 65 Years, Hindu.

3. Ms.Bindu,

 D/o.Late M.Venkata Rangaiah,

 13 Years, Hindu, Minor.

4. Ms.Lakshmi Prasanna,

 D/o.Late M.Venkata Rangaiah,

 9 Years, Hindu, Minor.

(Respondents No.3 and 4 are minors,

Rep. by their natural guardian and

Mother, 1st respondent herein)

All are R/o.60 Feet Road,

7th cross, D.No.18/775-137-BB,

Guntakal Town, Ananthapur District,

Now residing at D.No.65,

Maddikera Village and Mandal. …. RESPONDENTS

DATE OF JUDGMENT PRONOUNCED : 10.01.2024

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SUBMITTED FOR APPROVAL:

HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

1. Whether Reporters of Local Newspapers

 may be allowed to see the Judgment? Yes/No

2. Whether the copy of Judgment may be

 marked to Law Reporters/Journals? Yes/No

3. Whether His Lordship wish to see the

 fair copy of the Judgment? Yes/No

 ______________________________

 B.V.L.N.CHAKRAVARTHI, J

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* HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

+ M.A.C.M.A.No.2662 OF 2014

% 10.01.2024

# Between:

Ms/.The New India Assurance Company Limited,

Rep. by its Divisional Manager,

Ananthapur.

 …. APPELLANT

 Versus

1. Smt.Maddineni Pushpavathi,

 W/o.Late M.Venkata Rangaiah,

 40 Years, Hindu.

2. Sri.Maddineni Chinna Ranganna,

 S/o.Late Balappa,

 65 Years, Hindu.

3. Ms.Bindu,

 D/o.Late M.Venkata Rangaiah,

 13 Years, Hindu, Minor.

4. Ms.Lakshmi Prasanna,

 D/o.Late M.Venkata Rangaiah,

 9 Years, Hindu, Minor.

(Respondents No.3 and 4 are minors,

Rep. by their natural guardian and

Mother, 1st respondent herein)

All are R/o.60 Feet Road,

7th cross, D.No.18/775-137-BB,

Guntakal Town, Ananthapur District,

Now residing at D.No.65,

Maddikera Village and Mandal. …. RESPONDENTS

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! Counsel for the Appellant : Smt.A.Jayanthi

^ Counsel for the

 Respondents : Sri B.Siva Kesava Reddy

< Gist:

> Head Note:

? Cases referred:

1. 2009 ACJ 1298

2. 2020 (2) SCC 550

3. (2009) 13 SCC 710

4. (2004) 8 SCC 553

5. (2008) 5 SCC 736

6. (2007) 9 SCC 263

7. (2007) 3 SCC 700

8. (2008) 3 SCC 193

This Court made the following:

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HON’BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI

M.A.C.M.A.No.2662 OF 2014

J U D G M E N T:

Heard Smt.A.Jayanthi, learned counsel for appellant and Sri

B.Siva Kesava Reddy, learned counsel for respondents/claimants who

appeared through Video Conference.

2. This appeal is directed by the 2nd respondent/Insurance

Company against the award dated 23.08.2011 passed in

M.V.O.P.No.84/2009 on the file of Motor Accidents Claims Tribunalcum-II Addl.District Judge, Kurnool at Adoni.

3. For the sake of convenience, the parties are arrayed as parties

before the learned Tribunal.

4. The application was filed under U/s.163-A and 166 of Motor

Vehicles Act, 1988 claiming compensation of Rs.3,00,000/- for the

death of Maddineni Venkata Rangaiah (hereinafter referred as

‘deceased’) in a motor vehicle accident occurred on 28.04.2008 near

Pathakothacheruvu village.

5. The case of the claimants is that the 1st claimant is the wife, 2nd

claimant is the father, claimants No.3 and 4 are minor children of the

deceased; on 28.04.2008 the 1st claimant as pillion rider, and the

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deceased as driver were travelling on motor cycle bearing No.AP 02 YY

TR 1487 belonging to the 1st respondent, to go to Vaduguru village;

they reached the place of accident at about 09.30 a.m.; the deceased,

could not control the speed and dashed a big boulder; as a result, the

deceased sustained head injury and died at the spot; the 1st claimant

sustained injuries; the deceased aged about 42 years and working as

Driver in military; also doing agricultural work, earning Rs.1,00,000/-

per annum; the claimants are deprived of livelihood; hence, filed claim

petition seeking compensation.

6. The 1st respondent/owner of the offending vehicle filed counter,

contending that the accident was occurred due to negligence of

deceased, and that the vehicle was insured with the 2nd respondent;

the insurance policy was in force; and therefore, the 2nd respondent is

liable to indemnify the 1st respondent.

7. The insurer of the offending vehicle i.e., Insurance Company

filed counter, contending that it is not liable to pay compensation as

accident was occurred due to the self-negligence of the deceased; and

risk was not covered as per terms and conditions of the insurance

policy; there is no contractual liability on the part of the Insurance

Company to pay compensation to the claimants.

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8. Basing on the above pleadings of both parties, the learned

Tribunal framed the following issues for trial:

1. Whether the accident and the resultant death of deceased

M.Venkata Rangaiah had occurred due to the rash and negligent

driving of the motor cycle of the respondent No.1 bearing No.AP

02 YY TR 1487?

2. Whether the petitioners are entitled to the compensation, and

if so, to what amount and from which of the respondents?

3. To what relief the petitioners are entitled?

9. Before the learned Tribunal, on behalf of the claimants, one

witness was examined as P.W-1 and three documents were marked as

Exs.A-1 to A-3 respectively. On behalf of the 2nd respondent/Insurance

Company, its official was examined as R.W-1 and copy of insurance

policy was marked as Ex.B-1. No evidence was placed on behalf of the

1st respondent.

10. The learned Tribunal considering the evidence, on issue No.1,

held that the deceased died due to accident, and that the accident was

occurred due to rash and negligent driving of the deceased. The

learned Tribunal on issue No.2 held that as per section 147(b) of Motor

Vehicles Act, “the insurance of person or class of persons specified in

the policy to the extent specified in sub-section (2) entitled for

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compensation, but when a third party insurance is there, definitely the

deceased though was driving the vehicle is a third party being not

registered owner of it, and that the petitioners are entitled for

compensation, even though the deceased was not a registered owner of

the vehicle”.

11. The learned Tribunal, assessed the loss of dependency, basing

on the judgment of the Hon’ble Apex Court in the case of Sarla Verma

and another Vs. Delhi Road Transport Corporation and others1,

and awarded an amount of Rs.3,96,500/- towards just compensation

with interest @ 7.5% p.a. from the date of petition, till the date of

realisation, and made the 1st respondent, 2nd respondent/Insurance

Company jointly and severally liable to pay compensation amount to

the claimants.

12. The 2nd respondent/Insurance Company filed the appeal,

challenging the award and decree of the learned Tribunal mainly on

the ground that as per the admitted facts of the case, the deceased

borrowed the impugned motor cycle involved in the accident from the

1st respondent, who is his relative, and therefore, he stepped into the

shoes of the owner, and the accident was occurred due to the

1

 2009 ACJ 1298

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negligence of the deceased, and Ex.B-1 insurance policy does not cover

risk of the owner/driver of the vehicle and, in that view of the matter,

the claim petition is not maintainable as a person cannot be both a

claimant as also a recipient, and therefore, the heirs of the owner

could not have maintained the claim in terms of section 163-A or 166

of Motor Vehicles Act, 1988.

13. The learned counsel for appellant contended that the deceased

borrowed, the offending vehicle will steps into the shoes of the owner of

the motor cycle, and hence, the claim is not maintainable as a person

cannot both a claimant as also a recipient, and, therefore, the

claimants, who are the legal heirs of the deceased could not have

maintained the claim in terms of the sections 163-A or 166 of the Act,

as Ex.B-1 copy of insurance policy does not cover the risk of the

owner/driver of the motor cycle, since no premium paid.

14. She would further submit that the learned Tribunal erroneously

treated the deceased as a third party relying on section 147 (b) of

Motor Vehicles Act, 1988 in relation to the borrowed vehicle, though

they are not covered by section 147 of Motor Vehicles Act, and hence,

the award and decree of the learned Tribunal shall be set aside.

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15. In support of her arguments, she relied upon the judgment of

the Hon’ble Apex Court in the case of Ramkhiladi and another Vs.

United India Insurance Company and another2.

16. The learned counsel for respondents/claimants would submit

that the claim petition was filed U/s.163-A and 166 of Motor Vehicles

Act 1988, and the learned Tribunal considered the claim petition

U/s.166 of Motor Vehicles Act and basing on treated the deceased as

a third party to the vehicle U/s.147(b) of Motor Vehicles Act, and

accordingly, awarded compensation, and therefore, there are no

grounds to interfere with the findings of the learned Tribunal.

17. In the light of above rival contentions, the points that would

arise for consideration in this appeal are as under:

1. Whether the deceased, who borrowed the offending vehicle

from the owner of the vehicle will step into the shoes of the

owner? If so, the heirs of the deceased could not have

maintained the claim?

2. To what relief?

2

 2020 (2) SCC 550

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18. POINT No.1:

In the case on hand, admittedly, even as per the case of the

claimants, the deceased was driving the motor cycle bearing No.AP 02

YY TR 1487 belonging to the 1st respondent at the time of accident on

28.04.2008 at about 09.30 a.m. near Pathakothacheruvu Village. It is

also an admitted fact that the 1st claimant is the wife of the deceased,

and that she was pillion rider at the time of accident. She made a

statement to the police regarding the way in which the accident was

occurred, and the same was registered as Ex.A-1 FIR by Guntakal

Rural Police.

19. Perusal of Ex.A-1 would show that the motor cycle bearing

No.AP 02 YY TR 1487 belongs to the 1st respondent, and that the

deceased borrowed the said motor cycle from the 1st respondent, who

is a relative of the deceased, to go to Vaduguru village; and that at

about 09.30 a.m. while the deceased driving the motor cycle and P.W-1

as pillion rider, reached a place near Pathakothacheruvu village road

turning; the deceased could not control the motor cycle as it was going

fast; dashed a big boulder, as a result, the deceased and P.W-1 fell

down; the deceased sustained head injury and died at the spot; P.W-1

in her evidence deposed same facts before the learned Tribunal.

Hence, the material placed before the learned Tribunal would establish

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that the 1st respondent is the owner of the motor cycle involved in the

accident. He is a relative of the deceased. The motor cycle was

borrowed by the deceased to go to Vaduguru village, on personal work.

20. The Hon’ble Apex Court in the case of Ramkhiladi and another

Vs. United India Insurance Company and another, in similar

circumstances, on a question, ‘whether the deceased not being a third

party to the vehicle, being in the shoes of the owner can maintain

claim U/s.163-A of the Act from the owner of the said vehicle’, relying

on earlier decision of the Hon’ble Apex Court in the case of Ningamma

v. United India Insurance Co. Ltd.3, held that “the legal

representatives of the deceased could not have maintained this claim

against the real owner of the motor cycle, which was being driven by the

deceased as borrower would step into the shoes of the owner”. The

Hon’ble Apex Court further held that “there cannot be any dispute that

liability of the Insurance Company would be as per terms and conditions

of the contract of insurance”. Relying on the earlier judgment of the

Hon’ble Apex Court in the case of Dhanraj v. New India Assurance

Co. Ltd.4, held that “in respect of death of or bodily injury to any person

3

 (2009) 13 SCC 710

4

 (2004) 8 SCC 553

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(including an owner of the goods or his authorized representative)

carried in the vehicle or damage to any property of a third party caused

by or arising out of the use of the vehicle. It is further held that Section

147 does not require an insurance company to assume risk for death or

bodily injury to the owner of the vehicle.”

21. The Hon’ble Apex Court in the case of Ramkhiladi and another

Vs. United India Insurance Company and another, wherein, the

claim was made against the owner and Insurance Company of the

vehicle, which was being driven by the deceased himself as borrower of

the vehicle from the owner of the vehicle, held that he would step into

the shoes of the owner. Hon’ble Apex Court in the case of Oriental

Insurance Co. Ltd. V. Rajni Devi5, laid a proposition that “provision of

section 163-A of the Act cannot said to have any application with regard

to an accident, wherein the owner of the motor vehicle himself is

involved.”

22. The Hon’ble Apex Court after considering the earlier decisions in

the following cases:

1. Oriental Insurance Co. Ltd. V. Jhuma Saha6

5

 (2008) 5 SCC 736

6

 (2007) 9 SCC 263

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2. National Insurance Co. Ltd. V. Laxmi Narain Dhut7

3. Premkumari v. Prahlad Dev8

 concluded that “the liability under Section 163A of the Act is on the

owner of the vehicle as a person cannot be both, a claimant as also a

recipient and, therefore, the heirs of the owner could not have

maintained the claim in terms of Section 163A of the Act, and only the

terms of the contract of insurance could be taken recourse to. In the

recent decision of this Court in the case of Ashalata Bhowmik (supra),

the parties shall be governed by the terms and conditions of the contract

of insurance.”

23. Therefore, the owner of the vehicle as a person cannot be both, a

claimant as also a recipient, and, therefore, the heirs of the owner

could not have maintained the claim, and only the terms of the

contract of insurance could be taken recourse to. In such

circumstances, the parties shall be governed by the terms and

conditions of the contract of insurance. Section 147 does not require

an insurance company to assume risk for death or bodily injury of the

owner of the vehicle.

7

 (2007) 3 SCC 700

8

 (2008) 3 SCC 193

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24. In the case on hand, the admittedly the deceased borrowed the

vehicle from the owner of the motorcycle involved in the accident (1st

respondent). The accident was occurred while the deceased was driving

the vehicle, and it was occurred due to his negligence. Therefore, the

deceased would step into the shoes of the owner of the motorcycle.

Hence, the claimants, who are the legal heirs of the deceased could not

have maintained the claim. They are governed by the terms of contract

of insurance. Ex. B-1 is a copy the insurance policy issued by the

appellant/Insurance Company. It is Act only policy. No premium was

paid covering risk of the owner/driver.

25. In view of the above principles, who he is a borrower of the

vehicle, would step into the shoes of the owner. Therefore, the

claimants, who are the legal heirs of the deceased could not have

maintained the claim petition, as a person cannot be both a claimant

and a recipient. Accordingly, the point is answered.

26. POINT No.2: To what relief?

 In the light of foregoing discussion, the award and decree passed

by the learned Tribunal against the appellant/Insurance Company is

liable to be set aside. Hence, the appeal be allowed, setting aside the

award and decree dated 23.08.2011 passed in M.V.O.P.No.84/2009 on

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the file of Motor Accidents Claims Tribunal-cum-II Addl.District Judge,

Kurnool at Adoni.

27. At the time of admitting the appeal on 20.03.2012, this Court

directed the appellant/Insurance Company to deposit 50% of the

compensation amount, and permitted the claimants to withdraw the

said amount. Now, at this length of time, it would be difficult for the

claimants to refund the said amount, who lost their bread winner in

the motor vehicle accident. Considering the peculiar facts of this case,

it is ordered that the claimants need not refund the amount, if any

withdrawn, out of the 50% amount deposited by the

appellant/Insurance Company as per earlier orders of this Court.

28. In the result, the appeal is allowed, by setting aside the award

and decree dated 23.08.2011 passed in M.V.O.P.No.84/2009 on the

file of Motor Accidents Claims Tribunal-cum-II Addl.District Judge,

Kurnool at Adoni. There shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any, shall

stand closed.

_____________________________

B.V.L.N. CHAKRAVARTHI, J

10.01.2024

psk

L.R. Copy is to be marked

B/o. psk

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HON’BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

M.A.C.M.A.No.2662 OF 2014

Note: L.R.Copy to be marked

psk

10th January, 2024

psk

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