MACA No. 2211 of 2007: Oriental Insurance Co. Ltd. v. P.P. Nandanam and Jiss

**CR** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MRS.JUSTICE K.HEMA** **& THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN** **FRIDAY, THE 23RD DAY OF NOVEMBER 2012/2ND AGRAHAYANA 1934** **MACA.No. 2211 of 2007 ( )** **------------------------OPMV.2917/2002 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR** **APPELLANT(S)/APPELLANT/2ND RESPONDENT::** **--------------------------------------** **THE ORIENTAL INSURANCE CO. LTD., THRISSUR, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18.** **BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)** ## **RESPONDENT(S)/CLAIMANT & 1ST RESPONDENT::** **-----------------------------------------** **1. P.P. NANDANAN, S/O. P.V. PRABHAKARAN, PANGAPARAMBIL HOUSE, THANIKUDAM DESOM KURICHIKKARA POST, THRISSUR TALUK.** **2. MR.JISS, S/O. POULOSE, KADHALIPARAMBIL HOUSE, X/491 A-KANNAKY, PANANCHERY THRISSUR DISTRICT.** **R1-BY ADV. SRI.M.ANIL KUMAR** **R1-BY ADV. SMT.PREETHI K.PURUSHOTHAMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **“CR”** ## **K. HEMA & P.S. GOPINATHAN, JJ.** ...................................................... M.A.C.A.NO.2211 OF 2007 ...................................................... Dated this the 23[rd] day of November, 2012 ## **JUDGMENT** ## **Gopinathan, J** . Appellant is the 2[nd] respondent in O.P.No.2917/2002 on the file of the Motor Accidents Claims Tribunal, Thrissur. At 7.30 p.m on 26.6.2001 at Aramkallu along Thrissur-Palakkad National Highway, a motor cycle bearing Reg.No.KL/J 6378 ridden and owned by respondents 1 and 2 hit against one Majid, a pedestrian. Appellant was the insurer. As a result of the hit, Majid and the 1[st] respondent, fell down and sustained injuries. At 9.30 p.m on the same day, Majid succumbed to the injuries while undergoing treatment at the Medical College Hospital, Thrissur. Legal heirs of Majid filed a petition as O.P.No.1885/2001 before the Tribunal seeking compensation against the respondents and the appellant with a plea that the accident occurred because of the rash and negligent riding of the motor bike by the 1[st] respondent and hence all the respondents are liable to compensate the petitioners. 2. The 1[st] respondent filed O.P.No.2917/2002 under : 2: ## M.A.C.A.NO.2211 OF 2007 Sections 140,166 and 163A of the Motor Vehicles Act against the 2[nd] respondent and the appellant seeking a sum of Rs.2,00,000/- as compensation with a plea that the 1[st] respondent sustained injury while using the motor vehicle. 3. In O.P.No.2917/2002, the 2[nd] respondent did not file any written statement. The appellant filed a written statement, inter alia contending that the accident occurred because of the negligence of the 1[st] respondent and that the 1[st] respondent was not covered by the policy which was marked as Ext.B5. Hence, the appellant is not liable to compensate the 1[st] respondent. 4. After raising the issues, both the petitions were tried jointly. Pending proceedings before the Tribunal, the 1[st] respondent filed an application to amend the petition to delete Sections 140 and 166 quoted in the petition to make claim petition one under Section 163 A of the Motor Vehicles Act. It was allowed. The 1[st] petitioner in O.P.No.1885/2001 was examined as PW1. Exts.A1 to A20 and B1 to B6 were marked. 5. The Tribunal on appraisal of the evidence, especially referring to Ext.A6 final report submitted by the police after investigation, by the impugned common award, arrived at a : 3: ## M.A.C.A.NO.2211 OF 2007 finding that the accident occurred because of the rash and negligent driving of the motor cycle by the 1[st] respondent. Consequently, in O.P.No.1885/2002 an award was passed against the appellant and the respondents. In O.P.No.2917/2002, the Tribunal, in view of the Full Bench decision in National Insurance Co.Ltd. v. Malathi C. Salian (2003 (3) KLT 460 (F.B) found that the 1[st] respondent is entitled to get compensation from the appellant as he had sustained injury while using the motorbike. On evaluation of the evidence, the Tribunal determined the compensation at Rs.1,23,600/- and the appellant was directed to compensate the 1[st] respondent as if the claim under Section 163 A is a no faulty liability. Assailing the said award, this appeal is preferred. 6. We have heard the learned counsel on either side. Perused the award impugned and the evidence on record. The quantum assessed is not assailed. Only the liability is under challenge. 7. The finding of the Tribunal that the accident occurred because of the rash and negligent driving of the motor cycle by the 1[st] respondent is not assailed. Therefore, it has become : 4: ## M.A.C.A.NO.2211 OF 2007 final. Then the question that arises is whether the appellant is liable to compensate the 1[st] respondent for the injury sustained by his own negligence. The learned counsel for the appellant would submit that the policy obtained by the 2[nd] respondent would not cover either the rider or the owner of the vehicle, and therefore, in view of the latest Full Bench decision of this Court in Oriental Insurance Co.Ltd. v. Joseph (2012(2) KLT 132 (F.B), the appellant is not liable to satisfy the award. In that case, the Full Bench, at paragraph-8 it is held that: “[T]herefore, in a case, where though a claim is raised under Section 163 A, once the insurer or the insured comes up with the defence of absolving the liability to pay compensation, on the ground, that the deceased was responsible for the death or injury on account of either wrongful act, negligent act or default, then, the liability of the insurer can be absolved, if such plea or defence is established”. If the above ratio is applied to the case on hand, in view of the specific finding of the Tribunal that the accident occurred due to the rash and negligent riding of the motor cycle by the 1[st] respondent, the appellant/insurer is not liable to compensate : 5: ## M.A.C.A.NO.2211 OF 2007 the 1[st] respondent. 8. In New India Assurance Company Limited. v. Radhika (2009 (2) KLT 488), a Division Bench of this Court held that: "[a] driver who was driving the vehicle would also be treated as a third party and therefore the insurer has to pay the compensation". The Full Bench in Joseph's case (supra) was on a reference made by another Division Bench doubting the correctness of the above ruling in Radhika's case. The Full Bench after discussing various case laws, at paragraph-10 held that: "in view of the matter we are of the opinion that the law laid down in Radhika's case is not the correct position of law. 9. In National Insurance Company Ltd. v. V. Sinitha [2011 (4) KLT 821(SC)] the Apex court, in paragraph-13 held that: "[T]he object for incorporating subsection (2) in Section 163 A of the Act is, that the burden of pleading and establishing proof of "wrongful act", "neglect" or "default" would not rest on the shoulders of the claimant. The absence of a provision similar to subsection(4) of Section 140 of the Act from Section 163 A of the Act, is for shifting the onus of proof on the grounds of "wrongful act", "neglect" or "default" onto the shoulders of the defence (owner or the insurance company). A claim which can be defeated on the : 6: M.A.C.A.NO.2211 OF 2007 basis of any of the aforesaid considerations, regulated under the "fault" liability principle. We have no hesitation therefore to conclude, that Section 163 A of the Act is founded on the "fault" liability principle." 10. In Oriental Insurance Company Limited v. Hansrajbhai v. Kodala (2001 (2) KLT 235 (SC) the Apex Court held that : "[i]t is open for the owner of the vehicle or insurer to defeat the claim under Section 163 A by pleading or establishing any one of the three faults as stated above. This would only mean that to avoid the liability of payment of compensation, the insurer and the insured can always take the defence by pleading any one of the faults as stated above i.e., 'wrongful act', 'neglect' or 'default'. 11. In Oriental Insurance Company Limited v. Rajni Devi and Others (2008 (4) KLT 145 (SC)=(2008)5 SCC 736), the Apex Court held that: "[t]he heirs of the deceased could not have maintained a claim in terms of Section 163 A of the Act and only by virtue of the terms of the contract of insurance they can take recourse to. In other words, what their Lordships would mean is, unless the terms of the policy cover a case of present nature, the claim by the heirs of the owner, wherein the owner himself was the victim of the accident cannot be considered under Section 163 A. For example, if the owner of the vehicle insures the vehicle by paying additional premium, as personal accident coverage, they by virtue of the terms of contract of insurance, the insurer would : 7: M.A.C.A.NO.2211 OF 2007 be liable to pay compensation depending upon the limits of liability". The Full Bench, in Joseph's case (supra) followed the above dictum. 12. To sum up, we find that the claim under Section 163 A is also founded on fault liability principle. The only difference between claim under Section 163 A and 166 of the Motor Vehicles Act is that when compensation is claimed as per the structured formula under Section 163 A, the claimant need not plead or prove negligence on the side of the owner or driver. But it is open for the owner or the insurer to avert the liability by pleading and establishing wrongful act, neglect or default on the part of the driver if the driver is the claimant or on the side of the claimant or on the part of the person under whom the claim is made. Therefore, in claims for compensation as per the structured formula under Section 163 A of the Motor Vehicles Act, in the event the owner or insurer pleads to avoid the liability on plea of negligence, default or wrongful act on the part of the claimant or on the part of the : 8: ## M.A.C.A.NO.2211 OF 2007 person under whom claim is made, Tribunal shall consider the merit of such defence before fixing the liability on the basis of pleading and evidence on record. In the event, the owner or insurer succeeds to establish negligence, default or wrongful act against the claimant or the person under whom the claim is made, no award can be passed against them, unless the policy covers the owner or driver or any other person as the case may be. To sum up, we find that in this case, the policy covering the motor cycle ridden by the 1[st] respondent is only a third party policy. It did not cover either the owner or the rider. The 1[st] respondent sustained injury due to his own negligence in riding the motor cycle. Therefore, the appellant/insurer is not liable to compensate the 1[st] respondent. The impugned award in favour of the 1[st] respondent is a reward for the negligence of the 1[st] respondent. It is not legally sustainable. The appellant is not liable to satisfy the award in dispute. He is entitled to succeed in the appeal. In the result, the appeal is allowed. The impugned award : 9: M.A.C.A.NO.2211 OF 2007 as against the appellant would stand set aside. No order as to costs. **K. HEMA, JUDGE.** **P.S. GOPINATHAN, JUDGE.** cl : 10: M.A.C.A.NO.2211 OF 2007