RAMKHILADI & ANR.versusTHE UNITED INDIA INSURANCE COMPANY & ANR.

                          [2020] 1 S.C.R. 19                             19


                      RAMKHILADI & ANR.                                  A
                                  v.
    THE UNITED INDIA INSURANCE COMPANY & ANR.
                   (Civil Appeal No. 9393 of 2019)
                        JANUARY 07, 2020                                 B
         [ASHOK BHUSHAN AND M. R. SHAH, JJ.]
       Motor Vehicles Act, 1988 – s. 163A – Claim under – Victim
was travelling on a motorcycle and met an accident – Victim died –
As per claimants, the accident occurred on account of rash and
                                                                         C
negligent driving of the driver of another motorcycle – Claim Petition
u/s. 163A of the Act filed by the appellants against the owner of the
vehicle on which victim/deceased was travelling and its insurance
company – Neither the driver nor the owner or the insurance
company of another motorcycle were joined as opponents in the
claim petition – Tribunal held insurance company liable to pay           D
compensation of Rs. 3,67,000/- u/s. 163A of the Act – The High
Court set aside the Judgment and award passed by the Tribunal
and dismissed the claim petition – On appeal, held: There was no
specific finding whether the deceased-driver was in employment of
the opponent-owner or not – Even otherwise, no evidence was led
                                                                         E
by the claimants to prove that the deceased-driver was in employment
of the opponent-owner – Under the circumstances, the deceased-
driver cannot be said to be in employment of the opponent-owner
and therefore, can be said to be permissible user and/or borrower
of the motor vehicle – Applying the law laid down by the Supreme
Court in the case of Ningamma v. United India Insurance Co. Ltd          F
and as the deceased-driver had stepped into the shoes of the owner
of the vehicle, as rightly held by the High Court the claim petition
u/s. 163A of the Act against the owner and insurance company of
the vehicle, borrowed by the deceased, shall not be maintainable –
Further, liability of the insurance company would be as per the
                                                                         G
terms and conditions of the contract of insurance – And as per the
contract of insurance, in case of personal accident the owner-driver
is entitled to a sum of Rs. 1 lakh – Therefore, the deceased, who
would be in the shoes of the owner shall be entitled to a sum of Rs.
1 lakh, as per the contract of insurance.
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                                 19
20            SUPREME COURT REPORTS                      [2020] 1 S.C.R.


A          Partly allowing the appeal, the Court
           HELD : 1. While answering the finding recorded by the
     Tribunal on Issue No. 2 i.e. whether the driver was driving the
     said vehicle being in the employment of vehicle owner opposite
     party No. 1 in his interest or with his permission/knowledge? it
B    appears that, as such, the Tribunal has not at all answered the
     aforesaid issue. While answering Issue No. 2, there is no specific
     finding whether the deceased-driver was in employment of the
     opponent-owner or not. Even otherwise, no evidence is led by
     the claimants to prove that the deceased-driver was in
     employment of the opponent-owner. Despite the above, while
C    answering Issue No. 4 there is some observation made by the
     Tribunal that the deceased-driver was in employment of the
     opponent-owner, which is not supported by any evidence on
     record. Under the circumstances, the deceased-driver cannot
     be said to be in employment of the opponent-owner and,
D    therefore, he can be said to be permissible user and/or borrower
     of motor vehicle owned by the opponent-owner. With these
     findings, the main question posed for consideration of this Court
     referred to hereinabove is required to be considered. [Paras 2.1
     and 5.3] [32-B-D]
E           2. An identical question came to be considered by this Court
     in the case of Ningamma, In that case, the deceased was driving
     a motorcycle which was borrowed from its real owner and met
     with an accident by dashing against a bullock cart i.e. without
     involving any other vehicle. The claim petition was filed under
     Section 163A of the Act by the legal representatives of the
F    deceased against the real owner of the motorcycle which was
     being driven by the deceased. To that, this Court has observed
     and held that since the deceased has stepped into the shoes of
     the owner of the vehicle, Section 163A of the Act cannot apply
     wherein the owner of the vehicle himself is involved.
G    Consequently, it was held that the legal representatives of the
     deceased could not have claimed the compensation under Section
     163A of the Act. Therefore, as such, in the present case, the
     claimants could have even claimed the compensation and/or filed
     the claim petition under Section 163A of the Act against the driver,

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RAMKHILADI v. THE UNITED INDIA INSURANCE COMPANY                       21


owner and insurance company of the offending vehicle i.e. another      A
motorcycle being a third party with respect to the offending
vehicle. However, no claim under Section 163A was filed against
the driver, owner and/or insurance company of that offending
motorcycle. It is an admitted position that the claim under Section
163A of the Act was only against the owner and the insurance
                                                                       B
company of the motorcycle which was borrowed by the deceased
from the opponent-owner. Therefore, applying the law laid down
by this Court in the case of Ningamma, and as the deceased has
stepped into the shoes of the owner of the vehicle, which was
borrowed, as rightly held by the High Court, the claim petition
under Section 163A of the Act against the owner and insurance          C
company of the said vehicle shall not be maintainable. [Para 5.4]
[32-E-H; 33-A-B]
       3. It is true that, in a claim under Section 163A of the Act,
there is no need for the claimants to plead or establish the
negligence and/or that the death in respect of which the claim         D
petition is sought to be established was due to wrongful act,
neglect or default of the owner of the vehicle concerned. It is
also true that the claim petition under Section 163A of the Act is
based on the principle of no fault liability. However, at the same
time, the deceased has to be a third party and cannot maintain a
claim under Section 163A of the Act against the owner/insurer of       E
the vehicle which is borrowed by him as he will be in the shoes of
the owner and he cannot maintain a claim under Section 163A of
the Act against the owner and insurer of the vehicle. In the
present case, the parties are governed by the contract of
insurance and under the contract of insurance the liability of the     F
insurance company would be qua third party only. In the present
case, the deceased cannot be said to be a third party with respect
to the insured vehicle. There cannot be any dispute that the
liability of the insurance company would be as per the terms and
conditions of the contract of insurance. As held by this Court in
the case of Dhanraj, an insurance policy covers the liability          G
incurred by the insured in respect of death of or bodily injury to
any person (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.
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22           SUPREME COURT REPORTS                      [2020] 1 S.C.R.


A    In the said decision, it is further held by this Court that Section
     147 does not require an insurance company to assume risk for
     death or bodily injury to the owner of the vehicle. [Para 5.5]
     [33-C-G]
           4. In view of the above and for the reasons stated above, in
B    the present case, as the claim under Section 163A of the Act was
     made only 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 and he would be in the
     shoes of the owner, the High Court has rightly observed and
     held that such a claim was not maintainable and the claimants
C    ought to have joined and/or ought to have made the claim under
     Section 163A of the Act against the driver, owner and/or the
     insurance company of the another offending vehicle being a third
     party to the said vehicle. [Para 5.6] [33-H; 34-A-B]
           Ningamma v. United India Insurance Co. Ltd. (2009)
D          13 SCC 710 : [2009] 8 SCR 683 – relied on.
           Naveen Kumar v. Vijay Kumar (2018) 3 SCC 1 : [2018]
           2 SCR 572 – held inapplicable.
           Reshma Kumari v. Madan Mohan (2013) 9 SCC 65 :
E          [2013] 2 SCR 706 ; Jitender Trivedi v. Kasam Daud
           (2015) 4 SCC 237 : [2015] 2 SCR 120 ; New India
           Assurance Co. Ltd. v. Sadanand Mukhi (2009) 2 SCC
           417 : [2008] 17 SCR 1313 ; Dhanraj v. New India
           Assurance Co. Ltd. (2004) 8 SCC 553 : [2004] 4 Suppl.
           SCR 711 ; Oriental Insurance Co. Ltd. v. Rajni Devi
F          (2008) 5 SCC 736 : [2008] 6 SCR 822 ; National
           Insurance Co. Ltd. v. Ashalata Bhowmik (2018) 9 SCC
           801 : [2018] 10 SCR 871 ; Oriental Insurance Co. Ltd.
           v. Jhuma Saha (2007) 9 SCC 263 : [2007] 1 SCR
           979 ; National Insurance Co. Ltd. v. Laxmi Narain Dhut
G          (2007) 3 SCC 700 : [2007] 3 SCR 579 ; Premkumari
           v. Prahlad Dev (2008) 3 SCC 193 : [2008] 1 SCR 874
           – referred to.



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RAMKHILADI v. THE UNITED INDIA INSURANCE COMPANY                                 23


                          Case Law reference                                     A
[2013] 2 SCR 706                    referred to                Para 3.2
[2018] 2 SCR 572                    held inapplicable          Para 3.3
[2015] 2 SCR 120                    referred to                Para 3.7
[2009] 8 SCR 683                    relied on                  Para 4.1          B
[2008] 17 SCR 1313                  referred to                Para 4.1
[2004] 4 Suppl. SCR 711            referred to                 Para 4.1
[2008] 6 SCR 822                    referred to                Para 4.2
                                                                                 C
[2018] 10 SCR 871                   referred to                Para 4.3
[2007] 1 SCR 979                    referred to                Para 5.8
[2007] 3 SCR 579                    referred to                Para 5.8
[2008] 1 SCR 874                    referred to                Para 5.8
                                                                                 D
      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9393
of 2019.
      From the Judgment and Order dated 10.05.2018 of the High Court
of Judicature for Rajasthan, Jaipur Bench, Jaipur in S.B. Civil Misc.
Appeal No. 2614 of 2009.
                                                                                 E
       Abhishek Gupta, Adv. for the Appellants.
     Amit Kumar Singh, Mrs. K. Enatoli Sema, Gaurav Prakash,
Akshay Sharma, Advs. for the Respondents.
       The Judgment of the Court was delivered by
                                                                                 F
       M. R. SHAH, J.
      1. Feeling aggrieved and dissatisfied with the impugned Judgment
and Order dated 10.05.2018 passed by the High Court of Judicature for
Rajasthan at Jaipur in SBCMA No. 2614 of 2009, by which the High
Court has allowed the said appeal preferred by the respondent-insurance          G
company by quashing and setting aside the Judgment and Award passed
by the learned Motor Accident Claims Tribunal and consequently has
dismissed the claim petition preferred by the original claimants, the original
claimants have preferred the present appeal.

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24             SUPREME COURT REPORTS                            [2020] 1 S.C.R.


A          2. The facts leading to the present appeal in nutshell are as under:
            2.1 That in a vehicular accident which occurred on 02.10.2006,
     one Chotelal alias Shivram died. The deceased was travelling on
     motorcycle bearing registration No. RJ 02 SA 7811. At this stage, it is
     required to be noted that, even as per the claimants, the accident occurred
B    on account of rash and negligent driving of the driver of another
     motorcycle bearing registration No. RJ 29 2M 9223. That the appellants
     herein filed a claim petition before the Motor Accident Claims Tribunal,
     Laxmangarh (Alwar), Rajasthan (hereinafter referred to as the learned
     Tribunal) under Section 163A of the Motor Vehicles Act (hereinafter
     referred to as the Act). At this stage, it is required to be noted that the
C    claim petition was preferred only against the owner of the motorcycle
     bearing registration No. RJ 02 SA 7811 and its insurance company. Neither
     the driver nor the owner or the insurance company of the vehicle bearing
     registration No. RJ 29 2M 9223 were joined as opponents in the claim
     petition. Therefore, as such, no claim petition was filed against the driver,
D    owner and the insurance company of the vehicle involved in the accident
     i.e. motorcycle bearing registration No. RJ 29 2M 9223. That an objection
     was raised by the respondent-insurance company-insurer of motorcycle
     bearing registration No. RJ 02 SA 7811 that as according to the claimants
     and even so stated in the FIR, the driver of the motorcycle bearing
     registration No. RJ 29 2M 9223 was rash and negligent and the claimants
E    have not filed the claim petition against the owner of the said vehicle, the
     claim petition is required to be dismissed against the insurance company
     of the motorcycle bearing registration No. RJ 02 SA 7811. The learned
     Tribunal framed the following issues:
             1.       Whether accident was caused on 02.10.2006 by driver
F                     Chhotelal alias Shivram driving Motorcycle RJ 02 SA
                      7811 vehicle in question in rash and negligent manner?
             2.       Whether the driver was driving the said vehicle being in
                      the employment of vehicle owner opposite party No. 1
                      Bhagwan Sahay in his interest or with his permission/
G                     knowledge?
             3.       Consequent to occurring death of Chhotelal alias Shivram
                      (driver) in the alleged accident, how much valid amount
                      and in what manner, the applicants are entitled to get
                      and from which opposite parties?
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RAMKHILADI v. THE UNITED INDIA INSURANCE COMPANY                                 25
                   [M. R. SHAH, J.]

         4.       Whether the objections raised in the preliminary/specific      A
                  statements are significant, if yes then its effect?
         5.       Relief?
      2.2 On appreciation of evidence, the learned Tribunal answered
Issue Nos. 1 and 2 in favour of the claimants and held that the death of
the deceased Chotelal alias Shivram had occurred from the motorcycle             B
involved in the accident and the said motorcycle was insured with the
respondent-insurance company, the insurance company is liable to pay
the compensation under Section 163A of the Act. Consequently, by the
Judgment and Award dated 24.02.2009, the learned Tribunal partly
allowed the said claim petition and awarded a total sum of Rs.3,67,000/          C
-as compensation along with the interest @ 6% per annum from the
date of filing of the claim petition till the date of the actual payment
       2.3 Feeling aggrieved and dissatisfied with the Judgment and Award
passed by the learned Tribunal holding the insurance company of the
motorcycle bearing registration No. RJ 02 SA 7811 liable to pay the              D
compensation, the respondent-insurance company-insurer of motorcycle
bearing registration No. RJ 02 SA 7811 preferred an appeal before the
High Court. That, by the impugned Judgment and Order, the High Court
has allowed the said appeal and has quashed and set aside the Judgment
and Award passed by the learned Tribunal and consequently has dismissed
the claim petition on the ground that even as per the informant Vikram           E
Singh, who lodged the FIR, the accident had occurred on account of
rash and negligent driving by the driver of motorcycle bearing registration
No. RJ 29 2M 9223, however, the claimants have not filed the claim
petition against the owner of the said vehicle and in fact, the claim petition
should have been filed by the claimants against the owner of vehicle             F
bearing No. RJ 29 2M 9223 to seek compensation.
      2.4 Feeling aggrieved and dissatisfied with the impugned Judgment
and Order passed by the High Court, the original claimants have preferred
the present appeal.
       3. Shri Abhishek Gupta, learned advocate appearing on behalf of           G
the appellants-original claimants has vehemently submitted that the High
Court has materially erred in dismissing the claim petition solely on the
ground that the claimants have not filed the claim petition against the
owner of the motorcycle bearing registration No. RJ 29 2M 9223.
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26             SUPREME COURT REPORTS                            [2020] 1 S.C.R.


A           3.1 It is submitted by the learned advocate appearing on behalf of
     the appellants-original claimants that, as such, the High Court has not
     properly appreciated the fact that the claim petition preferred by the
     original claimants was under Section 163A of the Act and, therefore,
     when the claim petition was preferred under Section 163A of the Act,
     there is no need for the claimants to plead or establish that the death in
B
     respect of which the claim petition has been made was due to any
     wrongful act or neglect or default of owner of vehicle concerned.
             3.2 It is further submitted by the learned advocate appearing on
     behalf of the appellants-original claimants that the claim petition filed by
     the original claimants was based on the principle of no-fault liability. It
C    is submitted that the claimants could have elected to file the claim petition
     either under Section 166 read with Section 140 of the Act against the
     owner/insurer of offending vehicle i.e. RJ 29 2M 9223 on the basis of
     the fault liability or under Section 163A either against the owner/insurer
     of the vehicle being driven by the deceased at the time of accident i.e.
D    RJ 02 SA 7811 or against the owner/insurer of offending vehicle i.e. RJ
     29 2M 9223 on the basis of no-fault liability. It is submitted by the
     learned advocate appearing on behalf of the appellants-original claimants
     that, as such, the deceased was not the owner of the vehicle bearing
     registration No. RJ 02 SA 7811 and in fact and as observed by the
     learned Tribunal, he was in employment of owner of the vehicle No. RJ
E    02 SA 7811 and therefore a third party. It is submitted that having elected
     to prefer the claim under Section 163A of the Act on the principle of no-
     fault liability against the owner/insurer of the vehicle being driver by the
     deceased at the time of the accident i.e. RJ 02 SA 7811, the claim was
     perfectly just and maintainable and the learned Tribunal made no error
F    in allowing the same. In support of the above, the learned advocate
     appearing on behalf of the original claimants has heavily relied upon the
     decision of this Court in the case of Reshma Kumari v. Madan Mohan
     (2013) 9 SCC 65.
            3.3 Learned counsel appearing on behalf of the original claimants
G    has further submitted that Section 163A of the Act has to be interpreted
     in keeping with the intention of the Legislature and the social perspective
     it seeks to achieve. It is a provision which is beneficial in nature and it
     has been enacted as a measure of social security. It is submitted that
     Section 163A of the Act commences with a “non-obstante” clause.
     Liability to pay the compensation is on “owner of the motor vehicle” or
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RAMKHILADI v. THE UNITED INDIA INSURANCE COMPANY                               27
                   [M. R. SHAH, J.]

“the authorized insurer”. It is submitted that the word “owner” has            A
been defined under Section 2(30) to mean “a person in whose name a
motor vehicle stands registered, and where such person is a minor, the
guardian of such minor, and in relation to a motor vehicle which is the
subject of a hire-purchase, agreement or an agreement of lease or an
agreement of hypothecation, the person in possession of the vehicle under
                                                                               B
that agreement.” It is submitted that having regard to the said definition
of “owner”, this Court in Naveen Kumar v. Vijay Kumar (2018) 3
SCC 1 has held the registered owner of the vehicle as per the registering
authority liable in respect of the offending vehicle despite sale/purchase
of vehicle by him. It is submitted that, in paragraph 6, it is held that the
person in whose name the motor vehicle stands registered is the owner          C
of the vehicle for the purpose of the Act.
       3.4 It is further submitted by the learned counsel appearing on
behalf of the appellants-original claimants that for claiming the
compensation under Section 163A of the Act, the claimants are only
required to prove that the death or permanent disablement is as a result       D
of the accident arising out of the use of motor vehicle and it will cover
those who are themselves driving a vehicle, the passengers and also
pedestrians. It is submitted that in an application under Section 163A of
the Act, fault of the owner of the vehicle or vehicles concerned or of
any other person need not be established.
                                                                               E
        3.5 It is further submitted by the learned counsel appearing on
behalf of the appellants-original claimants that, therefore, as the present
claim premised on the no-fault liability under Section 163A of the Act by
the legal heirs of the deceased, the same was maintainable against the
owner and insurer of the motor vehicle which was being driven by him,
more particularly, when the deceased was not the owner of the vehicle          F
and that respondent No. 2 was the registered owner of the concerned
vehicle and, therefore, the insurance company cannot be absolved from
its liability to pay the compensation as awarded by the learned Tribunal.
       3.6 Making the above submissions, it is prayed to allow the present
appeal and quash and set aside the impugned Judgment and Order passed          G
by the High Court and to restore the Judgment and Award passed by the
learned Tribunal holding the owner of the vehicle bearing registration
No. RJ 02 SA 7811 and the insurer of the said vehicle to pay the
compensation.
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28             SUPREME COURT REPORTS                            [2020] 1 S.C.R.


A            3.7 It is further submitted by the learned counsel appearing on
     behalf of the appellants-original claimants that, as such, the amount of
     compensation awarded by the learned Tribunal i.e. Rs.3,67,000/- should
     be enhanced to Rs.5,00,000/- with interest as awarded by the learned
     Tribunal in light of the fact that the 2nd Schedule to the Motor Vehicle
     Act has been amended with effect from 22.05.2018 and a fixed
B
     compensation of Rs.5,00,000/- has been specified in the case of death.
     It is submitted that this Court has enhanced the compensation even in
     those cases wherein no appeal for enhancement has been preferred
     against the order of the Tribunal. In support thereof, the learned counsel
     appearing on behalf of the original claimants has relied upon the decision
C    of this Court in the case of Jitender Trivedi v. Kasam Daud (2015) 4
     SCC 237.
           4. The present appeal is vehemently opposed by Shri Amit Kumar
     Singh, learned advocate appearing on behalf of the respondent-insurance
     company.
D           4.1 It is submitted by the learned advocate appearing on behalf of
     the respondent-insurance company that, in the present case, the deceased
     borrowed the motorcycle bearing registration No. RJ 02 SA 7811 from
     the registered owner Bhagwan Sahay. It is submitted that another
     motorcycle bearing registration No. RJ 29 2M 9223 which was driven in
E    a rash and negligent manner came and hit the motorcycle on which the
     deceased was travelling. It is submitted that the FIR was lodged against
     the owner of motorcycle bearing registration No. RJ 29 2M 9223. It is
     thus clear that the insured vehicle on which the deceased was travelling
     i.e. RJ 02 SA 7811 was not negligent. It is submitted that, in the present
     case, the claimants of the deceased filed an application under Section
F    163A of the Act and sought compensation only from the owner of the
     insured vehicle i.e. RJ 02 SA 7811. It is submitted that the learned Tribunal
     without any evidence on record has concluded that the deceased was
     working under the employment of the registered owner. It is submitted
     that, therefore, in the facts and circumstances of the case, the High
G    Court has rightly allowed the appeal preferred by the insurer by observing
     that the claimants ought to have filed the claim petition against the owner
     of the vehicle bearing registration No. RJ 29 2M 9223. In support of
     impugned Judgment and Order passed by the High Court, learned
     advocate appearing on behalf of the insurance company has made the
     following submissions:
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RAMKHILADI v. THE UNITED INDIA INSURANCE COMPANY                                29
                   [M. R. SHAH, J.]

      (i) That the deceased was not a third party with respect to the           A
insured vehicle. He was a third party with respect to the motorcycle
bearing registration No. RJ 29 2M 9223;
      (ii) That the claimants when failed to claim the compensation from
the owner of the motorcycle bearing registration No. RJ 29 2M 9223,
cannot be permitted, as the driver of the said motorcycle, to claim             B
compensation from the owner of the vehicle bearing registration No. RJ
02 SA 7811;
      (iii) That under the Motor Vehicles Act, only the third party claims
are payable;
      (iv) That in the present case, the deceased was not a third party         C
given that he had borrowed the vehicle from the registered owner Shri
Bhagwan Sahay Meena;
       (v) That in the case of Ningamma v. United India Insurance
Co. Ltd. (2009) 13 SCC 710 and New India Assurance Co. Ltd. V.
Sadanand Mukhi (2009) 2 SCC 417, this Court has held that the owner             D
of the vehicle or his legal representatives or the borrower of the vehicle
cannot raise a claim for an accident in which there was no negligence
on the part of the insured vehicle. It is submitted that in the aforesaid
decisions, this Court has held that the borrower of the vehicle steps into
the shoes of the owner and, therefore, the borrower of the vehicle or his       E
legal representatives are not entitled to compensation from the insurer
under the Act. It is submitted that the deceased in the present case has
stepped into the shoes of the owner and therefore not entitled to any
third party compensation from the insured vehicle; and
       (vi) That in the case of Dhanraj v. New India Assurance Co.              F
Ltd. (2004) 8 SCC 553 it is held by this Court that an insurance policy
covers the liability incurred by the insured in respect of death of or bodily
injury to any person (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          G
assume risk for death or bodily injury to the owner of the vehicle.
      4.2 It is further submitted by the learned advocate appearing on
behalf of the insurance company that in the present case the contract of
insurance specifically provides that in case of personal accident the owner
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30             SUPREME COURT REPORTS                             [2020] 1 S.C.R.


A    cum driver is only entitled to a sum of Rs.1 Lakh. It is submitted that
     therefore the deceased who had stepped into the shoes of the owner at
     the most may be entitled to a sum of Rs.1 Lakh only. It is submitted that
     in the case of Oriental Insurance Co. Ltd. V. Rajni Devi (2008) 5
     SCC 736 when the compensation is claimed for the death of the owner
     or another passenger of the vehicle, the contract of insurance being
B
     governed by the contract qua contract, the claim of the insurance company
     would depend upon the terms thereof. It is submitted that, in the said
     decision, this Court did not accept the view taken by the Tribunal that
     while determining the amount of compensation, the only factor which
     would be relevant would be merely the use of the motor vehicle. It is
C    submitted that, in the aforesaid decision, in paragraph 11, it is further
     observed by this Court 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.
            4.3 Relying upon the decision of this Court, in the case of National
D    Insurance Co. Ltd. V. Ashalata Bhowmik (2018) 9 SCC 801, it is
     submitted that the parties shall be governed by the terms and conditions
     of the contract of insurance. It is submitted that, therefore, at the most,
     the claimants may be entitled to Rs. 1 lakh only, the deceased being in
     the shoes of the owner.
E            4.4 Now, so far as the submission on behalf of the appellants-
     original claimants that there is an amendment to the 2nd Schedule, and a
     fixed compensation of Rs.5 lakhs has been specified in the case of death
     and, therefore, the claimants shall be entitled to Rs.5 lakhs, it is vehemently
     submitted by the learned advocate appearing on behalf of the insurance
     company that the said amendment shall not be applicable retrospectively.
F    It is submitted that, in the present case, the accident had taken place in
     the year 2006 and even the Judgment and Award was passed by the
     learned Tribunal in the year 2009, and the impugned Judgment and Order
     has been passed by the High Court on 18.02.2018, i.e. prior to the
     amendment in the 2nd Schedule.
G           4.5 Making the above submissions, it is prayed to dismiss the
     present appeal and/or partly allow the appeal to the extent of Rs.1 Lakh
     as per the terms and conditions of the contract of insurance.
            5. Heard learned counsel appearing on behalf of the respective
     parties at length. We have also perused and considered the Judgment
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RAMKHILADI v. THE UNITED INDIA INSURANCE COMPANY                              31
                   [M. R. SHAH, J.]

and Award passed by the learned Tribunal as well as the impugned              A
Judgment and Order passed by the High Court and the evidence on
record. The short question which is posed for consideration of this
Court is whether, in the facts and circumstances of the case and in a
case where the driver, owner and the insurance company of another
vehicle involved in an accident and whose driver was negligent are not
                                                                              B
joined as parties to the claim petition, meaning thereby that no claim
petition is filed against them and the claim petition is filed only against
the owner and the insurance company of another vehicle which was
driven by the deceased himself and the deceased being in the shoes of
the owner of the vehicle driven by himself, whether the insurance
company of the vehicle driven by the deceased himself would be liable         C
to pay the compensation under Section 163A of the Act?; Whether the
deceased not being a third party to the vehicle No. RJ 02 SA 7811 being
in the shoes of the owner can maintain the claim under Section 163A of
the Act from the owner of the said vehicle?
       5.1 The learned Tribunal held that even in absence of the driver,      D
owner and the insurance company of another vehicle involved in an
accident and whose driver was solely negligent, the application under
Section 163A of the Act would be maintainable against the owner and
the insurance company of the vehicle which was driven by the deceased
himself, firstly on the ground that the deceased was in employment of
the owner of the vehicle which was driven by him and secondly, in an          E
application under Section 163A of the Act, the negligence is not required
to be established and proved and it is enough to establish and prove that
the deceased has died in a vehicular accident and while driving a vehicle.
The High Court has not agreed with the same and by the impugned
Judgment and Order has held that as the claimants have not filed the          F
claim petition against the owner of another vehicle whose driver was in
fact negligent, even as per the claimants and the claim petition should
have been filed by the claimants against the owner of another vehicle to
seek the compensation, the application under Section 163A of the Act
against the insurance company of the vehicle driven by the deceased
himself is liable to be dismissed.                                            G

       5.2 While answering the aforesaid question involved in the present
case, first of all, the findings recorded by the learned Tribunal on Issue
No. 2 is required to be dealt with and considered. The learned Tribunal
framed Issue No. 2 to the effect whether the deceased-driver was driving
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32            SUPREME COURT REPORTS                           [2020] 1 S.C.R.


A    the vehicle-motor cycle bearing registration No. RJ 02 SA 7811 being in
     employment of the vehicle owner-opposite party-Bhagwan Sahay in his
     interest or with his permission/knowledge?
            5.3 While answering the finding recorded by the learned Tribunal
     on Issue No. 2, it appears that, as such, the learned Tribunal has not at
B    all answered the aforesaid issue. While answering Issue No. 2, there is
     no specific finding whether the deceased-driver was in employment of
     the opponent-owner Bhagwan Sahay or not. Even otherwise, no
     evidence is led by the claimants to prove that the deceased-driver was
     in employment of the opponent-owner Bhagwan Sahay. Despite the
     above, while answering Issue No. 4 there is some observation made by
C    the learned Tribunal that the deceased-driver was in employment of the
     opponent-owner Bhagwan Sahay, which is not supported by any evidence
     on record. Under the circumstances, the deceased-driver cannot be
     said to be in employment of the opponent-owner Bhagwan Sahay and,
     therefore, he can be said to be permissible user and/or borrower of
D    motor vehicle owned by the opponent-owner Bhagwan Sahay. With
     these findings, the main question posed for consideration of this Court
     referred to hereinabove is required to be considered.
            5.4 An identical question came to be considered by this Court in
     the case of Ningamma (supra). In that case, the deceased was driving
E    a motorcycle which was borrowed from its real owner and met with an
     accident by dashing against a bullock cart i.e. without involving any other
     vehicle. The claim petition was filed under Section 163A of the Act by
     the legal representatives of the deceased against the real owner of the
     motorcycle which was being driven by the deceased. To that, this Court
     has observed and held that since the deceased has stepped into the
F    shoes of the owner of the vehicle, Section 163A of the Act cannot apply
     wherein the owner of the vehicle himself is involved. Consequently, it
     was held that the legal representatives of the deceased could not have
     claimed the compensation under Section 163A of the Act. Therefore,
     as such, in the present case, the claimants could have even claimed the
G    compensation and/or filed the claim petition under Section 163A of the
     Act against the driver, owner and insurance company of the offending
     vehicle i.e. motorcycle bearing registration No. RJ 29 2M 9223, being a
     third party with respect to the offending vehicle. However, no claim
     under Section 163A was filed against the driver, owner and/or insurance
     company of the motorcycle bearing registration No. RJ 29 2M 9223. It
H
RAMKHILADI v. THE UNITED INDIA INSURANCE COMPANY                                33
                   [M. R. SHAH, J.]

is an admitted position that the claim under Section 163A of the Act was        A
only against the owner and the insurance company of the motorcycle
bearing registration No. RJ 02 SA 7811 which was borrowed by the
deceased from the opponent-owner Bhagwan Sahay. Therefore, applying
the law laid down by this Court in the case of Ningamma (supra), and
as the deceased has stepped into the shoes of the owner of the vehicle
                                                                                B
bearing registration No. RJ 02 SA 7811, as rightly held by the High
Court, the claim petition under Section 163A of the Act against the owner
and insurance company of the vehicle bearing registration No. RJ 02 SA
7811 shall not be maintainable.
        5.5 It is true that, in a claim under Section 163A of the Act, there
is no need for the claimants to plead or establish the negligence and/or        C
that the death in respect of which the claim petition is sought to be
established was due to wrongful act, neglect or default of the owner of
the vehicle concerned. It is also true that the claim petition under Section
163A of the Act is based on the principle of no fault liability. However,
at the same time, the deceased has to be a third party and cannot maintain      D
a claim under Section 163A of the Act against the owner/insurer of the
vehicle which is borrowed by him as he will be in the shoes of the owner
and he cannot maintain a claim under Section 163A of the Act against
the owner and insurer of the vehicle bearing registration No. RJ 02 SA
7811. In the present case, the parties are governed by the contract of
insurance and under the contract of insurance the liability of the insurance    E
company would be qua third party only. In the present case, as observed
hereinabove, the deceased cannot be said to be a third party with respect
to the insured vehicle bearing registration No. RJ 02 SA 7811. There
cannot be any dispute that the liability of the insurance company would
be as per the terms and conditions of the contract of insurance. As held        F
by this Court in the case of Dhanraj (supra), an insurance policy covers
the liability incurred by the insured in respect of death of or bodily injury
to any person (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. In the
said decision, it is further held by this Court that Section 147 does not       G
require an insurance company to assume risk for death or bodily injury
to the owner of the vehicle.
      5.6 In view of the above and for the reasons stated above, in the
present case, as the claim under Section 163A of the Act was made only
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34            SUPREME COURT REPORTS                          [2020] 1 S.C.R.


A    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 and he would be in the shoes of the owner, the
     High Court has rightly observed and held that such a claim was not
     maintainable and the claimants ought to have joined and/or ought to have
     made the claim under Section 163A of the Act against the driver, owner
B
     and/or the insurance company of the offending vehicle i.e. RJ 29 2M
     9223 being a third party to the said vehicle.
            5.7 Now, so far as the reliance placed upon by the learned Advocate
     for the claimants on the decision of this Court in the case of Naveen
     Kumar (supra), on considering the issue involved in that decision, we
C    are of the opinion that the said decision shall not be applicable to the
     facts of the case on hand and/or the same shall not be of any assistance
     to the claimants. In that case, the issue was as to who could be said to
     be the registered owner of the vehicle and the liability of the owner who
     sold the vehicle, but his name continued to be as the owner with the
D    registering authority. To that, it was held that the person in whose name
     the motor vehicle stands registered is the owner of the vehicle for the
     purpose of the Act.
            5.8 However, at the same time, even as per the contract of
     insurance, in case of personal accident the owner-driver is entitled to a
E    sum of Rs.1 lakh. Therefore, the deceased, as observed hereinabove,
     who would be in the shoes of the owner shall be entitled to a sum of
     Rs.1 lakh, even as per the contract of insurance. However, it is the
     case on behalf of the original claimants that there is an amendment to
     the 2nd Schedule and a fixed amount of Rs.5 lakh has been specified in
     case of death and therefore the claimants shall be entitled to Rs.5 lakh.
F    The same cannot be accepted. In the present case, the accident took
     place in the year 2006 and even the Judgment and Award was passed
     by the learned Tribunal in the year 2009, and the impugned Judgment
     and Order has been passed by the High Court in 10.05.2018, i.e. much
     prior to the amendment in the 2nd Schedule. In the facts and circumstance
G    of the present case, the claimants shall not be entitled to the benefit of
     the amendment to the 2nd Schedule. At the same time, as observed
     hereinabove, the claimants shall be entitled to Rs.1 lakh as per the terms
     of the contract of insurance, the driver being in the shoes of the owner
     of the vehicle.

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RAMKHILADI v. THE UNITED INDIA INSURANCE COMPANY                                  35
                   [M. R. SHAH, J.]

       5.9 Now, so far as the submission made on behalf of the claimants          A
that in a claim under Section 163A of the Act mere use of the vehicle is
enough and despite the compensation claimed by the heirs of the owner
of the motorcycle which was involved in the accident resulting in his
death, the claim under Section 163A of the Act would be maintainable is
concerned, in view of the decision of this Court in Rajni Devi (supra),
                                                                                  B
the aforesaid cannot be accepted. In Rajni Devi (supra), it has been
specifically observed and held that the provisions of Section 163A of the
Act cannot be said to have any application with regard to an accident
wherein the owner of the motor vehicle himself is involved. After
considering the decisions of this Court in the cases of Oriental Insurance
Co. Ltd. V. Jhuma Saha (2007) 9 SCC 263; Dhanraj (supra); National                C
Insurance Co. Ltd. V. Laxmi Narain Dhut (2007) 3 SCC 700 and
Premkumari v. Prahlad Dev (2008) 3 SCC 193, it is ultimately concluded
by this Court 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
                                                                                  D
the claim in terms of Section 163A of the Act. It is further observed
that, for the said purpose, 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), it is specifically held by this Court
that the parties shall be governed by the terms and conditions of the
contract of insurance. Therefore, as per the contract of insurance, the           E
insurance company shall be liable to pay the compensation to a third
party and not to the owner, except to the extent of Rs.1 lakh as observed
hereinabove.
       6. In view of the above and for the reasons stated above, the
present appeal is partly allowed to the aforesaid extent and it is observed       F
and held that the original claimants shall be entitled to a sum of Rs.1 lakh
only with interest @ 7.5 per cent per annum from the date of the claim
petition till realization. In the facts and circumstance of the present
case, there shall be no order as to costs.
                                                                                  G
Ankit Gyan                                               Appeal partly allowed.




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