Laisa V.M. and others v. Dipu T.T. and New India Assurance Co. Ltd.

MACA.No.894/13 1 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _THURSDAY, THE 7[TH] DAY OF MARCH 2024 / 17TH PHALGUNA, 1945_ ## _MACA NO.894 OF 2013_ _AGAINST THE ORDER/JUDGMENT DATED 19.11.2012 IN OPMV NO.953 OF 2007 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, NORTH PARAVUR_ ## _APPELLANTS/PETITIONERS:_ - _1 LAISA V.M., W/O.LATE SALU, THOPPIL HOUSE, VADAKKUMBHAGOM ELOOR NORTH, UDYOGAMANDAL P.O., ELOOR VILLAGE, PARAVUR TALUK, ERNAKULAM DISTRICT._ - _2 ABHIRAMI, AGED 16 YEARS, D/O.LATE SALU, -DO- -DO-._ _3 SIVAKAMI, AGED 10 YEARS, D/O.LATE SALU, -DO- -DO-, APPELLANTS 2 AND 3 MINORS REPRESENTED BY NATURAL GUARDIAN MOTHER 1ST APPELLANT._ _BY ADVS.SRI.P.V.BABY SRI.A.A.MOHAMMED NAZIR_ ## _RESPONDENTS/RESPONDENTS:_ _1 DIPU T.T., S/O.THILAKAN, 1/403, THOPPIL HOUSE, ELOOR NORTH, ELOOR P.O., ELOOR VILLAGE, PARAVUR TALUK, ERNAKULAM DISTRICT - 683 101._ MACA.No.894/13 2 - _2 NEW INDIA ASSURANCE CO.LTD., DIVISIONAL OFFICE, RS ROAD, ALUVA P.O., ERNAKULAM DISTRICT - 683 101._ _BY ADV.SRI.RAJAN P.KALIYATH_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.894/13 3 ## **JUDGMENT** Appellants were the petitioners in O.P.(MV). No.953 of 2007 on the file of the Motor Accidents Claims Tribunal, North Paravur, which was submitted under Section 163A of the Motor Vehicles Act. The said claim petition was submitted seeking compensation for the death of one Salu, due to the injuries sustained in a motor accident that occurred on 15.10.2006. 2. According to the appellants, the accident occurred when the motorcycle ridden by him was hit by an unidentified vehicle which came from the opposite direction. Even though he was taken to Medical Trust Hospital, immediately after the accident, he succumbed to the injuries on the very same day. The motorcycle which was being ridden by the deceased was owned by the 1[st] respondent and it was insured with the 2[nd] respondent. The claim petition was submitted by the wife and children of the deceased. 3. The 2[nd] respondent filed a written statement challenging the maintainability of the application under Section 163A of the Motor Vehicles Act. It was contended that, as the deceased was riding the motorcycle after borrowing the same MACA.No.894/13 4 from the registered owner of the vehicle, who is the 1[st] respondent, he stepped into the shoes of the owner and hence the application was not maintainable. It was also contended that no coverage was contemplated for the rider of the motorcycle as per the policy. However, it was admitted that they have collected Rs.50/- towards the personal accident coverage for the owner cum rider and the liability as per the said clause is confined to Rs.1,00,000/- for the death of the said person. Dismissal of the application was sought in such circumstances. 4. To substantiate the contentions, the appellants examined PW1. As documentary evidence Exts.A1 to A3 were marked. From the side of the respondents, the Ext.B1 policy certificate was marked. The Tribunal after considering all the relevant aspects came to the conclusion that, the 2[nd] respondent Insurance Company is not liable to pay the compensation in this case and passed an award permitting the appellants to recover an amount of Rs.3,69,500/- along with interest at the rate of 7.5% per annum from the date of petition till realization and with proportionate cost of Rs.8,500/- from the 1st respondent/owner of the said vehicle. This appeal is submitted by the appellant challenging the exoneration of the Insurance Company. MACA.No.894/13 5 5. Heard Sri.A.N.Santhosh, learned counsel for the appellants and Sri.Rajan. P. Kaliyath, learned counsel for the 2[nd] respondent. 6. The learned counsel for the appellants points out that the insurer should not have exonerated from the liability. When considering the aforesaid question, the crucial aspect to be noticed is that, one of the specific contentions raised by the 2[nd] respondent/insurer in the written statement filed by them is that, as the deceased was riding the vehicle after borrowing the same from the registered owner, he stepped into the shoes of the registered owner and hence the application was not at all maintainable. As far as the said contention is concerned, the same was upheld by the Honourable Supreme Court in **Ningamma & Anr. v. United India Insurance Co. Ltd. [(2009)** **13 SCC 710]** , wherein it is held that, in a case where a person sustained injuries or died while driving a vehicle with the consent of the owner of the said vehicle, he steps into the shoes of the owner of the said vehicle and therefore he or his legal representatives cannot maintain an application under Section 163A of the Motor Vehicles Act. MACA.No.894/13 6 7. However, in a subsequent decision rendered by the Honourable Supreme Court in **Ramkhiladi and Another v. The United India Insurance Company and Another [(2020) 2 SCC 550],** even though **Ningamma (supra)** was referred to and followed, it was held that the claimants shall be entitled to get the coverage of the personal accident. In the said decision, considering the fact that Rs.1,00,000/- was the coverage provided for the death of the owner cum rider as personal accident coverage, the Honourable Supreme Court directed the Insurance Company to pay the said amount. In **MACA.No.1610 of 2016** , this Court followed the decision in **Ramkhiladi (supra)** and passed an order directing the Insurance Company therein to deposit Rs.1,00,000/- coverage as per the personal accident clause in the policy, even though it was found that the application could not have been entertained under Section 163A of the Motor Vehicles Act under normal circumstances. 8. The 2[nd] respondent raised a contention that, the personal accident coverage cannot be claimed by the legal heirs of the rider, in view of the fact that as per the terms and conditions of the policy, the said coverage is contemplated only to the owner cum driver and according to him it is also specifically MACA.No.894/13 7 mentioned in the terms and conditions of the policy that the said coverage is confined to the “owner” which is intended to cover the risks of the registered owner of the vehicle alone and no one else. However, the crucial aspect to be noticed is that, the basic contention raised by the 2[nd] respondent in the written statement itself is that, the deceased stepped into the shoes of the registered owner as he was riding the motorcycle after borrowing the same from the registered owner of the said vehicle. Since such a contention is taken, which is in tune with the principles laid down by the Honourable Supreme Court in **Ningamma’s case (Supra)** , the deceased has to be treated as a person who actually stepped into the shoes of the owner, for the purpose of the claim petition. In such circumstances, it is not proper on the part of the 2[nd] respondent to take a stand which is completely inconsistent with the said contention, when it comes to the question of coverage of policy and hence the same cannot be entertained. When a person is treated as a registered owner for the purpose of not entertaining the claim petition, all the consequences of the same have to be followed. Therefore, for considering the question of coverage of the policy also, he has to be treated as the registered owner and all the rights and MACA.No.894/13 8 liabilities of the registered owner shall be extended to such person as well. In such circumstances, I do not find any valid ground to accept the contention raised by the learned counsel for the 2[nd] respondent in this regard. Moreover, the said view is fortified by the decision rendered by the Honourable Supreme Court in **Ramkhiladi (Supra)** as well. In such circumstances, I find that interference is required in the award passed by the Tribunal in the matter of exoneration of the Insurance Company from liability. However, when accepting the said contention of the appellants, it is to be held that the appellants are not entitled to compensation as determined by the Tribunal and their entitlement shall be confined to the amount covered as per the personal accident coverage, which is Rs.1,00,000/- as admitted by the 2nd respondent in the written statement. In such circumstances, this appeal is allowed in part. The award passed by the Motor Accidents Claims Tribunal, North Paravur in O.P.(MV). No.953 of 2007 dated 19.11.2012 is hereby set aside by holding that, the entitlement of the appellants to get the compensation is confined to the personal accident coverage contemplated under the policy, which is Rs.1,00,000/- (Rupees on lakh only). The 2nd respondent is liable to pay the said MACA.No.894/13 9 compensation and accordingly, the 2[nd] respondent is directed to deposit the said amount along with interest at the rate as ordered by the Tribunal and with proportionate costs within a period of three months from the date of receipt of a copy of this judgment. It is further ordered that the claimants shall furnish the details of the PAN Card, AADHAR Card and Bank details to enable the Insurance Company to make the deposit as ordered above, within a period of one month from the date of receipt of a copy of this judgment. In case, they fail to furnish the said details, it shall be open for the Insurance Company to deposit the said amount before the Tribunal. ## **Sd/-** **ZIYAD RAHMAN A.A. JUDGE** DG/11.3.24