Binson K. Paul v. T.K. Purushothaman, M.A. Baby, The Oriental Insurance Co. Ltd., and Addl. R4 Elcy Baby

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 15TH DAY OF MARCH 2016/25TH PHALGUNA, 1937 MACA.No.862 of 2007 (C) ------------------------- AGAINST THE AWARD IN OPMV 122/2003 of MACT, MUVATTUPUZHA DATED 16-12-2006 APPELLANT/CLAIMANT: -------------------- BINSON K.PAUL, AGED 41, KALATHOORKUDIYIL HOUSE, KAYANADU KARA, MARADY VILLAGE, MUVATTUPUZHA. BY ADVS.SRI.JOHN JOSEPH (ROY) SRI.SAMSON AROOJA RESPONDENTS/RESPONDENTS:: --------------------------- 1. T.K.PURUSHOTHAMAN, S/O.SIVARAMAN NAIR, DEVIMANDHIRAM, MEKKADAMPU P.O., MUVATTUPUZHA TALUK. 2. M.A.BABY, S/O. AUGUSTINE, * [EXPIRED] MUNDAKAVIL HOUSE, KALIYAR P.O., VANNAPURAM, THODUPUZHA TALUK. ## 3. THE ORIENTAL INSURANCE CO. LTD., THODUPUZHA BRANCH, JYOTHI SUPER BAZAR,THODUPUZHA. Addl. R4. ELCY BABY, W/O.LATE M.A.BABY, MUNDAKAVIL HOUSE, KALIYAR PO., VANNAPURAM, THODUPUZHA TALUK, IDUKKI DISTRICT, PIN - 685 582. ADDL.R4 IS IMPLEADED AS PER ORDER DTD.4.12.2015 IN I.A.No.4252/15 IN MACA.No.862 of 2007. R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ. -----------------------------------------------------------------M.A.C.A.No.862 of 2007 -----------------------------------------------------------------Dated this the 15[th] day of March, 2016** ## **JUDGMENT** ## Anil K.Narendran, J. The appellant is the claimant in O.P.(M.V.)No.122 of 2003 on the file of the Motor Accidents Claims Tribunal, Muvattupuza, an application filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the injury sustained in a motor accident occurred on 16.7.2002. The Tribunal by the impugned award dismissed the claim petition holding that, the appellant failed to plead and prove negligence on the part of the 1[st] respondent rider of the motor cycle, in which he was travelling as a pillion rider. 2. We heard the arguments of the learned counsel for appellant and also the learned counsel appearing for the respondent/insurer. 3. The pleadings and materials on record would show that, on the date of accident the appellant was travelling in a motor cycle bearing No.KL-6/B-597 as a pillion rider from Vannappuram to Mullaringadu. The motor cycle was ridden by the M.A.C.A.No.862 of 2007 2 1[st] respondent. When the motor cycle reached the place of occurrence it capsized, as a result of which the appellant sustained injuries. The 2[nd] respondent is the registered owner of the motor cycle and the 3[rd] respondent is the insurer of the said vehicle. Claiming a total compensation of ₹1,70,000/- under different heads, claim petition was filed before the Tribunal. 4. Before the Tribunal, respondents 1 and 2 were set ex parte. The 3[rd] respondent insurer filed written statement contending that the appellant, who was in possession and control of the motor cycle and using it for his own, is not entitled to claim any compensation for the injuries sustained in the accident. The insurer has also raised a contention that the appellant was actually the rider of the motor cycle at the time of accident. 5. Before the Tribunal Exts.A1 to A10 were marked on the side of the appellant and he was examined as PW1. On the side of the respondents, a copy of the insurance policy was marked as Ext.B1. Ext.X1 is a true extract of the General Diary from Kaliyar Police Station. 6. Based on the pleadings and evidence on record, the Tribunal came to the conclusion that the accident occurred while M.A.C.A.No.862 of 2007 3 the appellant was travelling in the motor cycle in question as a pillion rider, which was ridden by the 1[st] respondent. From the evidence of PW1, the Tribunal found that the 2[nd] respondent, namely the registered owner of the motor cycle, handed over possession of the said vehicle to the appellant and the 1[st] respondent as per their demand and that, the appellant also failed to prove that the accident had occurred due to any negligence on the part of the 1[st] respondent in riding the motor cycle. Accordingly, the Tribunal dismissed the claim petition holding that the appellant is not entitled for any compensation. 7. The appellant as well as the 1[st] respondent rider are Police Constables. The pleadings and evidence on record would show that the accident occurred while the 1[st] respondent was riding the motor cycle with the appellant as the pillion rider. While the 1[st] respondent was negotiating an upward slope at Kottappara, the motor cycle abruptly stopped due to mechanical defects. When the 1[st] respondent tried to control the vehicle, the motor cycle fell down resulting injuries to the appellant. In Ext.A2 First Information Statement given by the appellant, which forms part of Ext.A1 First Information Report, the appellant has M.A.C.A.No.862 of 2007 4 categorically stated that the accident occurred not due to any negligence on the part of the 1[st] respondent rider. Ext.A5 is a copy of the final report in Crime No.104/02 of Kaliyar Police Station, which would show that the Police has filed a refer report before the Magistrate Court stating that, there was no negligence on the part of the 1[st] respondent rider in causing the accident. It was after referring to the materials on record and also the oral evidence of the appellant as PW1, the Tribunal came to the conclusion that the accident occurred not due to any negligence on the part of the 1[st] respondent rider and as such, the appellant is not entitled for any compensation from the respondents. 8. Admittedly, the claim petition filed by the appellant is one filed under Section 166 of the Motor Vehicles Act. In **Oriental Insurance Company Ltd. v. Meena Variyal and others (2007 (5) SCC 428)** , the Apex Court held that Section 166 of the Motor Vehicles Act, 1988 provides for fault-based liability and negligence of the driver or the owner has to be proved before the owner of the vehicle or the insurer can be held liable for payment of compensation in a motor accident claim. This position was reiterated by the Apex Court in **Surender** M.A.C.A.No.862 of 2007 5 ## **Kumar Arora and another v. Manoj Bisla and others (2012** ## **(4) SCC 552)** . 9. In Surendar Kumar Arora's case (supra), the claim petition was one filed under Section 166 of the Act. Based on the evidence on record, the Tribunal came to the conclusion that the driver of the offending vehicle was not driving it in a rash and negligent manner and as such, the insurer cannot be mulcted with the responsibility of paying compensation to the parents of the deceased. The Award passed by the Tribunal was under challenge in an appeal filed before the High Court, which ended in dismissal. The matter was taken up before the Apex Court. The Apex Court found that the deceased was travelling in a motor vehicle driven by the 1[st] respondent, who happens to be his close associate/friend. It has come out in the evidence of the claimants that, the vehicle in question was not driven in a rash and negligent manner by the 1[st] respondent. The Apex Court noticed that, may be, in order to help the 1[st] respondent, the claimants had not taken up the plea of negligence before the Tribunal and as such, the High Court was justified in sustaining the order passed by the Tribunal in dismissing the claim petition. M.A.C.A.No.862 of 2007 6 The Apex Court has also noticed that, if for any reason, the claimants had filed the claim petition under Section 163A of the Motor Vehicles Act, then the dicta of the Apex Court in **Kaushnuma Begum v. New India Assurance Co. Ltd.** . **(2001** **(2) SCC 9)** would have come to the assistance of the claimants. Therefore, the Apex Court dismissed the appeal holding that, the issue raised for consideration is squarely covered by its decision in Meena Variyal's case (supra). 10. In view of the principle laid down in the judgments of the Apex Court referred to supra, the finding of the Tribunal that the appellant is not entitled for any compensation as he failed to plead and prove negligence on the part of the 1[st] respondent rider of the motor cycle is perfectly legal, warranting no interference in this appeal. 11. As we have already noticed, the fact that the appellant and the 1[st] respondent obtained possession of the motor cycle in question from the 2[nd] respondent who was a registered owner of the said vehicle for their use is a fact admitted by the appellant, who was examined as PW1. In **Ningamma and another v. United India Insurance Company (2009 (13) SCC 710)** the M.A.C.A.No.862 of 2007 7 Apex Court held that when a person borrows the motor cycle from its real owner for use, he steps into the shoes of the owner of the motor cycle and as such he is not entitled to get any compensation from the insurer. In that view of the matter, the appellant who had stepped into the shoes of the owner of the motor cycle, namely the 2[nd] respondent herein, could not have maintained a claim against the insurer of the said vehicle under Section 166 of the Motor Vehicles Act. 12. For the reasons stated above, we find absolutely no grounds to interfere with the award passed by the Tribunal. In the result, the appeal fails and the same is dismissed. Sd/- ## **P.R.RAMACHANDRA MENON, JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** skj True copy P.A to Judge