Manju Biswas And ORS. v. The Manager, New India Assurance Company Ltd.

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE MD. SHABBAR RASHIDI FMAT/4/2020 Manju Biswas & Others ... Appellants

Versus

The Manager, New India Assurance Company Ltd. ... Respondent For the appellant : Mr. KMB Jayapal For the respondent : Mr. N.A.Khan Heard on : 31.07.2025 Judgment on : 07.08.2025 MD. SHABBAR RASHIDI, J.

1.

The appeal is in assailment of the impugned judgment and order dated December 9, 2019 passed by the Motor Accident Claim Tribunal, North and Middle Andaman, Mayabunder in MACT Case No. 1 of 2019.

2.

Learned advocate for the appellant submitted that the learned tribunal failed to appreciate the evidence brought forth by the appellant more specifically exhibit A, which was a comprehensive policy. The appellants staked their claim on the basis of such policy for the death of their predecessor.

3.

It was also submitted by the appellants that the learned tribunal committed substantial error by holding that the husband/father of the appellants was first party and not third party in respect of the policy. Learned advocate also submitted that the learned tribunal did not consider that the Motor Vehicles Act, a beneficial legislation, in its true perspective. The learned tribunal misapplied the law on the subject contained in Section 146 and 147 the Motor Vehicles Act, 1988 and rejected the claim. In support of the contention, learned advocate for the appellants relied on 2019 SCC OnLine All 1677 (National Insurance Co. Ltd. Vs. Ram Pher and Another). 4.

On the other hand, learned advocate for the respondent Insurance Company, contended that the deceased was the owner of the motor vehicle which met an accident causing his death. He himself was driving the vehicle at the relevant time. The owner chose not to purchase first party coverage in respect of his vehicle. He died by an accident while driving his own motorcycle which was not covered in the policy purchased by him. As such, the respondent company i.e. insurer cannot be held liable to pay for something which was not covered under the policy.

5.

Learned advocate for the respondent also submitted that under the policy, i.e. exhibit A, only third party risk was covered

and insurer was liable for any third party damages or death or injury to any third party, learned tribunal was justified in negating the claim of the appellants. The owner of the vehicle in question was deliberately not paying premium for first party risk. He supports the impugned judgment and order.

6.

Materials placed reveals that the deceased, Barun Kumar Biswas, who was then working as Deputy Ranger in the Forest Department, was going to market on October 9, 2011 by his motorcycle bearing Registration No. AN-01/E-4272, moving through the road leading from petrol Godown village to Rangat Bazar. When he reached the curve on the road, his motorcycle skidded due to dust on the road as well as road construction materials lying beside the road. The vehicle skidded inspite of using normal brakes due to sloppy road. The accident was seen by the witnesses who moved the victim first to the primary health centre and thereafter to G. B. Pant hospital. The victim died at such hospital.

7.

The victim was survived by his wife and two sons, who preferred a claim application before the tribunal seeking a claim of Rs. 58, 56, 160/-. Such claim was refuted by the respondent company. It was the case of the respondent company that the two wheeler, Bajaj Platina, bearing Regn. No. AN-01/E-4272 was insured in the name of Barun Kumar Biswas for the period

from March 1, 2011 to February 29, 2012 under a valid insurance policy. However, the respondent company denied its liability for the death of owner cum driver of the vehicle, as the policy covered only third party risk and the owner cum driver of the vehicle was not a third party. It was set out that the owner did not pay premium for personal accident cover under the policy.

8.

The respondent also came up with a case that the death of the deceased occurred due to his own rash and negligent driving as well as poor condition of the road. It was contended that the insurer was not liable for contributory negligence of the owner cum driver and on the score that the owner voluntarily did not purchase a policy which covered personal accident of the owner and was not paying premium for first party risk. 9.

On the basis of pleadings put in by the parties, the learned tribunal framed issues to adjudicate the matter, that's to say:

1. Whether the claim case is maintainable in its present form?

2. Whether the claimants have any cause of action?

3. Whether the offending vehicle was insured on the date of the accident i.e. on 09.10.2011?

4. Whether the offending vehicle (Bajaj Platina) bearing registration number AN-01-E-4272 was involved in the accident?

5. Whether the accident was caused by negligence of the offending vehicle or because of contributory negligence of the victim?

6. Whether the claimants are entitled to get any compensation, as prayed for?

7. What other relief/reliefs, if any, the claimants are entitled to?

10.

In order to prove their case, the claimants/ appellants examined two witnesses. The claimant i.e. wife of the deceased herself deposed as PW1 whereas, the person who had seen the accident and carried the deceased to the hospital was examined as PW2. In addition, the claimants also proved several documents which were marked as exhibits.

11.

All the issues were taken up together for consideration. Upon consideration of the evidence adduced at the trial and the documents placed therein, learned tribunal came to hold that the offending vehicle was owned by the deceased and while driving it himself, the deceased met with an accident which resulted in his death. The tribunal also observed that at the time of accident, the vehicle was covered under an insurance

policy issued by the respondent, which was valid as on the date of such accident.

12.

Noting the submissions made on behalf of the insurer respondent, learned tribunal dismissed the claim made by the appellants on the grounds that the vehicle involved in the accident belonged to the deceased who himself was driving the vehicle at the relevant point of time. Tribunal also held that the vehicle was not insured with a policy to cover the risk of the owner. It was covered under basic third party (TP) policy which indemnifies injuries, death or loss of property of any third party only. The tribunal, upon appreciation of evidence on record, specifically held that no other vehicle besides the offending vehicle was involved in the accident and therefore, the insurer was not liable to pay for the death of deceased caused in an accident involving the offending vehicle only. The deceased never opted for an OD (Own Damage) policy and did not pay premium for such coverage.

13.

The learned tribunal while disposing the claim case also held that an additional premium was not paid in respect of the entire risk of death or bodily injury of the owner of the vehicle. On such count as well, the learned tribunal dismissed the claim of the appellants.

14.

Upon hearing the rival contentions and on consideration of the materials brought on record, it transpires that it is not in dispute that the deceased was driving his own motorbike at the relevant time and met with an accident. It is also not denied that the deceased died as a result of injuries received in such accident. The death certificate of the deceased together with final report in respect of the unnatural death case establishes the death. It is also not in dispute that the offending motorbike was covered under a valid insurance policy issued by the respondent. It is also not in dispute that the deceased had a valid driving licence at the time of accident meaning thereby that he was not driving the offending motorbike in contravention of any of the provisions of Motor Vehicles Act. 15.

The only point which has fallen for consideration of this court is, whether the owner of the motorbike driving his own motor vehicle was covered under the policy and his legal heirs are entitled to receive compensation for the death of the deceased from the respondent insurer.

16.

As noted above, the learned tribunal negated the claim of the appellants on the ground that the policy purchased by the deceased owner of motorbike was a basic third party policy and did not cover own damage. He had consciously opted for such third party policy and did not pay additional premium to cover

the own damage risk to hold the respondent insurer liable to indemnify the owner.

17.

I do accept the contention of learned advocate for the appellants that the accident occurred due to sloppy road and the deceased owner was not guilty of rash and negligent driving. 18.

Chapter XI of the Motor Vehicles Act, 1988 specifically deals with insurance of motor vehicles against third party risks. Section 146 of such Act, prohibits the use of any motor vehicle in a public place unless there is a policy of insurance in force in relation to the use of the vehicle in compliance with the requirements of Chapter XI of the Act of 1988. 19.

Section 147 of the Act of 1988 lays down the requirements for the such policies and limits of its liabilities in the following terms:

147. Requirements of policies and limits of liability.-

(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which- (a) is issued by a person who is an authorised insurer; and (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)- (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including 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 in a public place;

(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place: Provided that a policy shall not be required- (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, any such employee- (a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability.

Explanation.-For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of,

the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.

(2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:- (a) save as provided in clause (b), the amount of liability incurred;

(b) in respect of damage to any property of a third party, a limit of rupees six thousand:

Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier.

(3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases.

(4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe.

(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.

20.

Therefore, in terms of the provisions of Section 146 of the Motor Vehicles Act, 1988, it is mandatory on the part of the owner to purchase a third party insurance policy for the purpose of plying his vehicle in a public place. Section 147 specifies that the insurance policy must be issued by an authorized insurer. There is no doubt that the respondent is an authorized insurer for the purpose of the Act of 1988. The liability of the insurer is extended to person or classes of persons specified in the policy to the extent specified in subsection (2) of the Act. Such liability on the part of the owner of

the motor vehicle insures against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including 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 in a public place and against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place.

21.

Thus, in terms of the provisions of Section 147 of the Act of 1988, the owner of a motor vehicle plied in public place is indemnified by the authorized insurer in respect of death or bodily injury of any person carried in the vehicle. The owner is the person indemnified by the insurer and cannot swap himself in the capacity of any person carried in the motor vehicle. The chapter is specifically attributed to third party risk. The owner cannot claim himself to be a third party in respect of his own vehicle.

22.

A first party insurance policy or own damage policy is although, not mandatory in terms of Chapter XI of the Act of 1988 but it is not unknown and can be opted if an owner desires to come within own damage coverage. The authorized insurers provide such policies which cover the own damage including death or bodily injury to the owner of the vehicle, of

course, on payment of appropriate premium to that effect. In the case at hand, the deceased owner of the motorbike opted not to purchase and did not pay premium for such policy covering his personal risk. If that be so, the respondent insurer cannot be obliged to pay compensation for something which was not covered under the policy issued by him.

23.

In Ram Pher (Supra), insurance claim was directed to be paid by the insurer National Insurance Company Limited, since the deceased was a paid driver of the offending vehicle at a remuneration of Rs. 3000/- per month. In the case at hand, the offending vehicle was being driven by the owner and not a paid driver. The policy issued by the authorized insurer/respondent in the present case covered only third party risk. The facts and circumstances of the case are altogether different from that in Ram Pher(Supra). In fact, such judgment in Ram Pher(Supra) speaks of the liability of the owner as well as the insurer in respect of an accident of a motor vehicle. Therefore, the ratio laid down therein cannot be applied in the present case. 24.

In the facts obtaining in the present case, the offending motorbike belonging to the deceased was covered under a third party risk policy issued by the respondent insurer. However, the owner did not opt for own damage cover policy and was not paying any additional premium for such coverage. The use of

the term 'any person' in the provisions specifically Section 147 of the Act of 1988 can, at no stretch, be construed to include the owner of the vehicle. The owner himself is liable to indemnify for death, bodily injury or loss of property of a third party owing to use of his vehicle. Under the insurance policy, the owner pays premium to the authorized insurer and in turn, the liability shifts to the authorized insurer. 25.

Therefore, in the light of the discussions hereinbefore, the impugned judgment does not suffer from any illegality or perversity and as such, I find no reason to interfere with the impugned order. The same is hereby affirmed.

26.

Consequently, FMAT/4/2020 is dismissed without any order as to costs and thus, disposed of.

27.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all formalities.

(Md. Shabbar Rashidi, J.)