BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED Vs. NARESHO

JUDGEMENT

(1.) ALL these appeals are connected and they relate to the same accident where 4 persons died when they were travelling in a motorcycle. Amongst the deceased, the rider of the motorcycle was the son of the owner and no appeal has been filed against the award already secured by the claimants. The subject matter of appeals among claimants are in respect of claims made on behalf of representatives of three pillion riders who were the sons and daughter of the owner of the vehicle. The rider of the motorcycle was yet another son of the owner. They were seen lying on road with profuse injuries beside the motorcycle and the vehicle which had hit them and caused instantaneous death was itself not traced. The claim was therefore made by the representatives of the deceased against the father, being the owner of the motorcycle by treating the death as resultant to the use of a motorcycle and hence, they were competent to pursue the claim under Section 163 -A of the Motor Vehicles Act. The claimants would place reliance on the policy cover which was issued comprehensively to cover risk of passengers in the insured vehicle. I have seen the copy of the policy issued which bears the sitting capacity of the vehicle as '2' and includes the liability incurred for the use of the vehicle for death or injury to the passengers in the vehicle. The word "passenger" in this context must be seen as persons travelling in a motorcycle.

(2.) THE Insurance Company is in appeal in FAO Nos. 1757 to 1760 of 2009 to contend that no cause of action arises for a claim against the insurer, for, it was a case of the use of a vehicle by a borrower of the vehicle and there is no policy to cover the risk. The vehicle admittedly was driven by a person whose competency itself was not denied. The borrower that drives the vehicle subjects himself to the same risk and liability as the owner would do. If a passenger, as in this case a pillion rider, would come by any harm, the owner would become liable and in the same way, the borrower would subject himself to such liability. If there was a policy cover for the risk for death or injury to a passenger, then the insurer will become liable by the user of the motor vehicle in terms of the policy. Consequently, the complete denial of liability by the Insurance Company cannot be accepted.

(3.) I have already determined the amount payable to the representatives of Naresh Kumar at Rs. 4, 58, 300/ -, Nainsi at Rs. 1, 54, 500/ - and Rajesh Kumar at Rs. 4, 58, 300/ -. There has been already an award of Rs. 4, 36, 167/ - for the death of Jai Bhagwan and that has been challenged in FAO No. 1760 of 2009. The rider of motorcycle cannot have any claim for compensation under Section 163 -A of the Motor Vehicles Act without proving the involvement of any other vehicle against which there was no need to prove negligence under Section 163 -A. If the owner of the other vehicle which had caused death was not made a party, then the only entitlement that the representatives of the deceased who was driving the motorcycle would be the statutory minimum prescribed under Section 140 in terms of the law laid down by the Supreme Court in Eshwarappa @ Maheshwarappa and another Versus C.S. Gurushanthappa and another - : 2010(8) Scale 263. The entire compensation awarded against the Insurance Company for the death of Jai Bhagwan is not valid. I have also observed above that the liability under the policy was only for two persons, if the claims were to be made against the insurer of the vehicle which was driven by the deceased.