Motor Vehicle Act
Jaideep Nayyar
(Querist) 18 December 2008
This query is : Resolved
Could someone kindly guide me, as to under the following situation what is the legal position
The injured/claimant was driving a scooter of his friend when he was hit by an unknown car which sped away. Now he has filed the claim petition u/s 163-A of the MV act making the owner and the insurance company of the Motor Cycle as the parties. Now my query is (a) as to whether the claim is payable under these circumstances (b) as to whether he shall be considered a gracious person (c) whether he can be considered as a third party, because as per section 147 of the MV Act any person other than the insured and the insurer is a third party.
Kindly guide me regarding the same.
After receiving the reply the further clarification required is
Now in this case I represent the insurance company, and the claimants have not made the owner driver or the insurance company of the car as party because the car fleed away from the scene and there were no [particulars of the car available. So you might correct me but as as stated by you the the injured is not a third party to the insurance company of the scooter and on the other hand he is not a gratious person. So under these circumstances do you think there is any liability of the insurance company of the scooter. I shall be greatful if you could quote some case law in support of your views.
Tribhuwan Pandey
(Expert) 19 December 2008
The injured/claimant was driving a scooter.
He should have valid driving license. Appeal should be filed against the owner and insurance co. of the car.
a)Your claim is maintainable against the owner/Insurance co. of the car. But you have filed claim petition against owner/co. of motor cycle. It depends on terms of policy.
b)as he himself is driving motor cycle, hence he shall not be treated as a gratuitous passenger. gratuitous passenger means who is traveling in a vehicle as a passenger and such vehicle has no permission for traveling passangers, e.g. traveling in goods vehicle.
c)against the motor cycle he shall not treat a third party but against the car involved in accident shall be treated as third party.
A. A. JOSE
(Expert) 19 December 2008
Mr.Pandey's view is endorosed.
J K Agrawal
(Expert) 19 December 2008
Mr Jaideep
It is ok to file a claim against owner and insurer of scooter u/s 163 A of M V Act. Claim is payable under these circumstances.
As the deceased hemself was driving the scooter hi is driver and not pillion rider or gratuitous passenger.
He is not a Third party.
There are two type of insurance policies
Act only policy which covers only a third party and not owner or driver or any body else travelling or driving vehicle (other then employee covered under W C Act)
The coverage under ACT ONLY Policy is as under
"i) LIABILITY TO THIRD PARTIES
1. Subject to the Limit of liability as laid down in the schedule hereto, the Company will indemnify the insured in the event of accident caused by or arising out of the use of the Motor Vehicle anywhere in India against all sums including claimant's costs and expenses which the insured shall become legally liable to pay in respect of
i. death of or bodily injury to any person so far as it is necessary to meet the requirements of the Motor Vehicles Act.
ii. damage to property other than property belonging to the insured or held in trust or in the custody or control of the insured up to the limit specified in the schedule."
Package policy which is governed by the terms of policy only. In such a case scope of cover as per INDIA MOTOR TERIF is as under
"Standard two wheeler package policy
SECTION II - LIABILITY TO THIRD PARTIES
1. Subject to the limits of liability as laid down in the Schedule hereto the Company will indemnify the insured in the event of an accident caused by or arising out of the use of the insured vehicle against all sums which the insured shall become legally liable to pay in respect of
i) death of or bodily injury to any person including occupants carried in the insured vehicle ( provided such occupants are not carried for hire or reward) but except so far as it is necessary to meet the requirements of Motor Vehicles Act, the Company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured,
ii) damage to property other than property belonging to the insured or held in trust or in the custody or control of the insured.
PROVIDED ALWAYS that the Company shall not be liable in respect of death injury or damage caused or arising beyond the limits of any carriageway or thoroughfare in connection with the bringing of the load to the vehicle for loading thereon or the taking away of the load from the vehicle after unloading there from.
2. The Company will pay all costs and expenses incurred with its written consent.
3. In terms of and subject to the limitations of the indemnity granted by this section to the insured, the Company will indemnify any driver who is driving the vehicle on the insured's order or with insured’s permission provided that such driver shall as though he/she was the insured observe fulfill and be subject to the terms exceptions and conditions of this Policy in so far as they apply.
4. In the event of the death of any person entitled to indemnity under this policy the Company will in respect of the liability incurred by such person indemnify his/her personal representative in terms of and subject to the limitations of this Policy provided that such personal representative shall as though such representative was the insured observe fulfill and be subject to the terms exceptions and conditions of this Policy in so far as they apply.
5. The Company may at its own option
(A) arrange for representation at any Inquest or Fatal Inquiry in respect of any death which may be the subject of indemnity under this Policy and
(B) undertake the defence of proceedings in any Court of Law in respect of any act or alleged offence causing or relating to any event which may be the subject of indemnity under this Policy."
It is clear that y
Jaideep Nayyar
(Querist) 19 December 2008
Thanks to all.
Mr Aggarwal the information provided by you is enlightening.
Mr Pandey
Now in this case I represent the insurance company, and the claimants have not made the owner driver or the insurance company of the car as party because the car fleed away from the scene and there were no [particulars of the car available. So you might correct me but as as stated by you the the injured is not a third party to the insurance company of the scooter and on the other hand he is not a gratious person. So under these circumstances do you think there is any liability of the insurance company of the scooter. I shall be greatful if you could quote some case law in support of your views.
Tribhuwan Pandey
(Expert) 21 December 2008
If the claimants have not made the owner/driver of the offending car as opp. party, you may take objection that owner/driver and insurance co. of the offending car are necessary parties.
Recently Supreme court has define the term third party in Civil Appeal No. 3634/2008 Oriental Insurance Co. vs Sudhakaran k.V. decided on 16-05-2008
In National Insurance Co. vs Faquir Chand AIR 1995 J&K 91 define the term third patry.
