Kunjila and Others v. Mary w/o Wilson and Oriental Insurance Co. Ltd. and Moideen (MACA No. 550 of 2012)

MACA.No.550/12 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _TUESDAY, THE 5[TH] DAY OF DECEMBER 2023 / 14TH AGRAHAYANA, 1945_ ## _MACA NO. 550 OF 2012_ _AGAINST THE ORDER/JUDGMENT OPMV 1006/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL & SPECIAL COURT FOR E.C. ACT CASES, THRISSUR_ ## _APPELLANTS/PETITIONERS:_ _1 KUNJILA, W/O.LATE ANTONY,_ - _2 ALANA, MINOR D/O.LATE WILSON._ - _3 ANUGRAHA, MINOR D/O.LATE WILSON._ - _4 ADONA, MINOR D/O.LATE WILSON._ _(MINOR APPELLANTS 2 TO 4 REPRESENTED BY THEIR GUARDIAN THE IST APPELLATE HEREIN), ALL ARE RESIDING AT PORATHUR KUNGUMATH HOUSE, ANTHIKKAD, PADIYAM, THRISSUR DISTRICT._ _BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD_ ## _RESPONDENTS/RESPONDENTS:_ - _1 MARY, W/O.WILSON, RESIDING AT PORATHUR HOUSE, ANTHIKKAD, THRISSUR DISTRICT._ - _2 THE ORIENTAL INSURANCE COMPANY LIMITED, KUNNAMKULAM, THRISSUR DISTRICT._ MACA.No.550/12 2 _3 MOIDEEN RESIDING AT NAMBRUVEETTIL, PUNNAYOOR, VADAKKEKAD._ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.550/12 3 ## **“CR”** ## **JUDGMENT** The appellants are the petitioners in O.P.(MV).No.1006 of 2003 passed by the Motor Accidents Claims Tribunal, Thrissur. The said claim petition was submitted by the appellants under Section 163A of the Motor Vehicles Act, seeking compensation for the death of one Wilson due to the injuries sustained to him in a motor accident that occurred on 17.11.2003. According to the appellants, the accident occurred when the motorcycle ridden by him was hit against a telephone post, thereby sustaining injuries. Even though he was taken to the hospital, he succumbed to the injuries. 2. The said vehicle was owned by the 1[st] respondent, who is none other than the wife of the deceased. The claim petition was submitted by the appellants in such circumstances, who were the mother and children of the deceased. The 2[nd] respondent/Insurance Company filed a written statement admitting the coverage of the policy over the said vehicle. However, they contended that the appellants are not entitled to compensation under Section 163A of the Motor Vehicles Act, as the same was not maintainable. It was MACA.No.550/12 4 contended that since the deceased himself was the tortfeasor, the claimants were not entitled to claim compensation. 3. The evidence in this case consists of Exts.A1 to A9 from the side of the appellants. The copy of the insurance policy was marked as Ext.B1 from the side of the 2[nd] respondent/Insurance Company. After the trial, the Tribunal came to the conclusion that the claim petition was not maintainable under Section 163A of the Motor Vehicles Act, in the light of the observations in **Ningamma and another v. United India Insurance Co.Ltd [2009 ACJ 2020].** This appeal is filed by the appellants, challenging the order of dismissal of the claim petition. 4. Heard Sri.A.R.Nimod, learned counsel for the appellants and Smt.K.S.Santhi, learned counsel for the 2[nd] respondent Insurance Company. 5. The only question that arises here is whether the claim petition submitted under Section 163A of the Motor Vehicles Act at the instance of the legal heirs of the deceased who was driving the vehicle at the relevant time can be entertained. It is an admitted case that it was a self-accident where no other vehicle was involved. The accident occurred when the motorcycle ridden by the deceased MACA.No.550/12 5 hit a telephone post. It is also an admitted fact that the motorcycle was owned by the 1[st] respondent, who is none other than the wife of the deceased. It was rightly observed by the Tribunal, in the light of **Ningamma** (supra), that the claim petition cannot be entertained as it was categorically held therein that when a person is driving a vehicle with the consent of the owner, he steps into the shoes of the said owner and therefore, no compensation can be claimed at his instance. This is because, in the event of entertaining a claim petition, he would be asking compensation from himself. However, in **Ramkhiladi & Anr. v. United India Insurance Company & Another [(2020) 2 SCC 550], t** he Honourable Supreme Court, after referring to **Ningamma (supra), observed** that if the policy contains personal accident coverage for the owner and driver, the benefits of the same can be extended to the claimants in a petition under Section 163A, even though the application is not maintainable. In **Oriental Insurance Co.Ltd. v. Rajni Devi & Ors. [(2009) ACC 297 (SC)]** also the very same view was taken by the Honourable Supreme Court. MACA.No.550/12 6 6. The learned Senior counsel for the insurer raised a contention that the personal accident coverage contemplated under the terms and conditions of the policy cannot be extended to any person other than the registered owner of the said vehicle. The learned senior counsel also explained the circumstances under which the order imposing the liability of the insurance company on the personal accident coverage happened to be passed in **Ramkhiladi (supra)** . According to him, in paragraph 4.3 of the **Ramkhiladi (supra)** , a submission was made by the learned Senior counsel for the insurance company therein that, if at all there could be any liability in respect of a claim under Section 163A, that can only be to the extent of the personal accident coverage provided for the owner cum driver, which is limited for Rs.1,00,000/-. According to the learned senior counsel appearing for the insurance company in this case, it was based on that submission, the liability was fastened upon the insurance company to the extent of personal accident coverage. The learned Senior counsel also brought the attention of this Court to the terms and conditions of the policy with regard to personal accident coverage. It was pointed out that in Section III of the terms and conditions of the policy, the coverage for MACA.No.550/12 7 ## personal accidents was provided, which was subject to three conditions, namely:- - a. the owner-driver is the registered owner the vehicle insured herein; - b. the owner-driver is the insured named in this policy. - c. The owner-driver holds an effective driving licence, in accordance with the provisions of the Rule 3 of the Central Motor Vehicle Rule, 1989, at the time of the accident. 7. It was contended that one of the essential requirements for providing coverage is that the owner-driver must be the registered owner of the insured vehicle, and such owner-driver must be the insured, named in the policy. By relying on it, it was contended that the policy coverage could not be extended to anyone other than the registered owner of the said vehicle. The further contention is that as far as the coverage of policy in this case is concerned, it is not governed by the statutory provisions stipulated under Sec.147 of the Motor Vehicles Act, but it is covered by the terms and conditions of the policy alone. Therefore, the coverage of the policy shall be confined to the limits as contemplated in the terms and conditions of the insurance contract, and no extension beyond the relevant clauses in the policy can be made. MACA.No.550/12 8 8. I have carefully gone through those conditions of the policy. As far as the contention of the learned Senior counsel with respect to the observations made by the Hon’ble Supreme Court is concerned, I do not find any reason to accept the same. This is because, even though a submission as referred to by the learned Senior Counsel is seen made before the Hon’ble Supreme Court in the **Ramkhiladi’s case** , in the later part of the decision, the said issue was specifically considered, and the coverage of policy was extended to the person who was driving the vehicle at the relevant time. In para 5.8 of the decision in **Ramkhiladi’s** case (supra), it was observed as follows: “However, at the same time, even as per the contract of insurance, in case of personal accident the ownerdriver is entitled to a 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. 1lakh, even as per the contract of insurance……..” Thus, the Honourable Supreme Court interpreted the clauses in the policy to include the person who stepped into the shoes of the owner also. MACA.No.550/12 9 9. On merits also, I am not inclined to accept the contention put forward by the learned Senior Counsel. Of course, it is true that the terms and conditions of the policy specifically provides that the coverage is contemplated only in respect of the death of, or injuries sustained by, the owner, who is the registered owner as well as the insured. However, the crucial aspect to be noticed is that as far as the claim petition is concerned, the same was filed under Sec.163A of the Motor Vehicles Act at the instance of the legal heirs of a person who was driving the vehicle with the consent of the owner of the said vehicle. The basic reason on which the application under Sec.163A was found to be not maintainable was that he stepped into the shoes of the owner. Therefore, he cannot claim compensation from himself. When the deceased was treated as an owner for the purpose of deciding the question as to the entertainability of the claim petition, he has to be treated as an owner for all practical purposes relating to the claim and all the consequences, including the rights, obligations and liabilities attached to the owner of the vehicle, irrespective of the question whether he was registered owner of the vehicle or not, have to follow. Therefore, when the claim of the legal representative of such a person was dismissed by MACA.No.550/12 10 treating him as the owner of the vehicle as he stepped into the shoes of the owner, for deciding the question of entertaining the application, for personal accident coverage alone, a different yardstick cannot be adopted, since the said contentions of the insurer in this regard, would be mutually inconsistent. In other words, when such a victim was treated as an owner for not maintaining a claim petition under section 163A of the MV Act, for the purpose of coverage of a personal accident also, he has to be treated as an owner. This is because, while treating him as an owner, he is deemed to have attained all the characteristics of the owner with all the rights and liabilities attached to such conferment of ownership. Therefore, I am of the view that for the purpose of coverage as contemplated under the clause relating to the personal accident coverage in the policy also, the rider who drove the vehicle with the consent of the owner has to be treated as an owner, and the insurance company has to be mulcted with the responsibility to satisfy the liability to the extent it is covered as per the clause relating to the personal accident cover. Therefore, I do not find any merit in the contention raised by the learned senior counsel. MACA.No.550/12 11 10. The learned senior counsel also placed reliance upon a decision rendered by this Court in M.A.C.A.No.1092 of 2016 **National Insurance Co. v. Shibi Mohanan [2022 (1)KLT OnLine 1263=2022 ACJ 2179]** wherein this Court held that the terms in the policy relating to the personal accident coverage, have to be strictly construed and the coverage can be provided only to the extend and to the persons covered as per the relevant clauses. However, the crucial aspect to be noticed is that this Court made the said observations in a case with respect to a claim made by a passenger of the vehicle and not the driver. In that case, the claim was put forward by the owner as a passenger in the said vehicle but not as the driver. The concept of stepping into the shoes of the owner was also not there in the said case. Therefore, the observations made by this Court in the said decision cannot be made applicable to this case. 11. In this case, the Ext.B1 policy shows that the insurer collected an additional premium for providing personal accident coverage to the owner/driver. Thus, even though the application under Section 163A of Motor Vehicles Act was not maintainable, in the light of the observations in **Ramkhiladi (supra)** the amount covered as per the personal accident coverage contemplated in the policy can be MACA.No.550/12 12 granted to the appellants. It is an admitted fact that the amount receivable by the appellants as per the said clause of the policy is Rs.1,00,000/- (Rupees one lakh only). In the light of the aforesaid observations, this appeal is allowed in part by setting aside the award passed by the Tribunal on 30.05.2011 in O.P.(MV).No.1006 of 2003 by granting an amount of Rs.1,00,000/- (Rupees one lakh only) as the compensation to the appellants. Accordingly, the said amount shall be deposited by the 2[nd] respondent/Insurance Company along with interest at the rate of 7.5% per annum from the date of petition till realization with proportionate costs within a period of three months from the date of receipt of a copy of this judgment. _Sd/-_ **ZIYAD RAHMAN A.A. JUDGE** DG/12.12.23