MACA Nos. 2189 of 2010 & 3974 of 2017, High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 27TH DAY OF AUGUST 2019 / 5TH BHADRA, 1941** ## **MACA.No.2189 OF 2010** **AGAINST THE AWARD DATED 30-12-2009 IN O.P (MV) 658/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA** ## **APPELLANTS/APPLICANTS :-** **1 SASIKALA AND OTHERS VENPAKAL PO, NEYYATTINKARA. 2 BHAGYASREE, (MINOR) DO. DO. REPRESENTED BY SASIKALA, FIRST RESPONDENT 3 SREEKANTH, (MINOR) DO. DO. REPRESENTED BY SASIKALA, FIRST RESPONDENT 4 GEETHA OF DO. DO. BY ADVS. SRI.R.T.PRADEEP SRI.J.ROBINSON SRI.V.VIJULAL** ## **RESPONDENTS/RESPONDENTS :-** **1 AJI KUMAR R.S. AND ANOTHER VENPAKAL, VENPAKAL PO, NEYYATTINKARA - 695 121.** **2 THE MANAGER ORIENTAL INSURANCE CO. LTD., PADMASREE, NEAR BUS STAND JUNCTION, NEYYATTINKARA - 695 121. BY ADV. SRI.A.R.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27.08.2019, ALONG WITH MACA.3974/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.Nos.2189 OF 2010 & 3974 OF 2017** **2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 27TH DAY OF AUGUST 2019 / 5TH BHADRA, 1941** **MACA.No.3974 OF 2017** **AGAINST THE AWARD DATED 24-07-2017 IN O.P (MV) 1123/2011 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV, PATHANAMTHITTA** ## **APPELLANTS/PETITIONERS IN THE O.P(MV) :-** |**1**|**SKARIAH M.K.**| |---|---| ||**AGED 66 YEARS, MURUPPEL VEEDU, MALLIKA,**| ||**THATTAYIL P.O., ADOOR, PATHANAMTHITTA DISTRICT.**| |**2**|**KUNJUMOL SKARIA**| ||**AGED 63 YEARS, MURUPPEL VEEDU, MALLIKA,**| ||**THATTAYIL P.O., ADOOR, PATHANAMTHITTA DISTRICT.**| ||**BY ADVS.**| ||**SRI.T.K.BIJU (MANJINIKARA)**| ||**SMT.ANNIE M.ABRAHAM**| ## **RESPONDENTS/RESPONDENTS IN THE O.P.(MV) :-** |**1**|**HARIKUMAR**| |---|---| ||**S/O.UNNIKRISHNAN ACHARI, PANACHAVILA KUTTIYIL,**| ||**MALLIKA, THATTAYIL P.O., ADOOR, PATHANAMTHITTA**| ||**DISTRICT.**| |**2**|**NATIONAL INSURANCE COMPANY LIMITED**| ||**DIVISIOINAL OFFICE, KAYAMKULAM,**| ||**REPRESENTED BY ITS DIVISIONAL MANAGER.**| ||**R2 BY ADV. SRI.E.M.JOSEPH**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27.08.2019, ALONG WITH MACA.2189/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.Nos.2189 OF 2010 & 3974 OF 2017** **3** ## **C.R.** ## **P.B.SURESH KUMAR, J.** **----------------------------------------------M.A.C.A. Nos.2189 of 2010 & 3974 of 2017 ----------------------------------------------Dated 27[th] August, 2019.** ## **J U D G M E N T** As the issue arising for consideration in these appeals is common, they are disposed of by this common judgment. 2. The appellants in M.A.C.A.No.2189 of 2010 are the legal representatives of one Bhuvanachandran Nair who died in a motor accident on 28.02.2004. Bhuvanachandran Nair was riding a motor cycle at the time of accident. It is alleged that while so, he lost control over the vehicle, fell on the road and sustained fatal injuries. As the accident occurred in the manner indicated above, the appellants instituted proceedings before the Motor Accidents Claims Tribunal under Section 163A of the Motor Vehicles Act, 1988 ('the Act'), claiming compensation from the owner and insurer of the motor cycle ridden by the deceased. 3. The appellants in M.A.C.A.No.3974 of 2017 are the legal representatives of one Juby Skaria who died in a motor **MACA.Nos.2189 OF 2010 & 3974 OF 2017** **4** accident on 9.9.2011. Juby Skaria was also riding a motor cycle at the time of accident. It is alleged that while so, he lost control over the vehicle, hit on the railing of a bridge and sustained fatal injuries. As in the earlier case, since the accident occurred in the manner indicated above, the appellants instituted proceedings before the Motor Accidents Claims Tribunal under Section 163A of the Act claiming compensation from the owner and insurer of the motor cycle ridden by the deceased. 4. In both cases, the owners of the vehicles remained _ex parte_ . The insurers of the vehicles, however, contested the proceedings, contending among others, that since the accidents occurred on account of the negligence of the deceased themselves, their legal representatives are not entitled to compensation under Section 163A of the Act. The proceedings which is the subject matter of M.A.C.A.No.3974 of 2017 was dismissed by the Tribunal accepting the said contention and the proceedings which is the subject matter of M.A.C.A.No.2189 of 2010 was dismissed by the Tribunal holding that the annual income of the deceased being more than Rs.40,000/-, his legal representatives are not entitled to seek compensation under Section 163A of the Act. The appellants are aggrieved by the aforesaid decisions of the Tribunals. **MACA.Nos.2189 OF 2010 & 3974 OF 2017** **5** 5. Heard the learned counsel for the appellants as also the learned counsel for the insurers in the proceedings. 6. It is unnecessary to examine the correctness of the reasons on the basis of which the proceedings were dismissed by the Tribunal as, according to me, the proceedings instituted by the appellants are not maintainable on another ground. Admittedly, the deceased themselves were riding motor cycles involved in the accidents. The vehicles involved in the accidents were, however, not owned by the deceased persons. They were vehicles registered in the names of the first respondent in the respective cases. In **Ningamma and Another v. United India Insurance Company Limited** [(2009) 13 SCC 710], the Apex Court held that in such cases, the deceased would step into the shoes of the owner of the vehicle and his/her legal representatives cannot claim compensation under Section 163A of the Act, for the liability to pay compensation under that provision is on the owner himself. 7. The learned counsel for the appellants in M.A.C.A.No.3974 of 2017 has, however, contended that in cases of this nature, it is obligatory for the insurer to establish the relationship between the victim and the owner of the vehicle. According to the learned counsel, in the absence of any material **MACA.Nos.2189 OF 2010 & 3974 OF 2017** **6** indicating the relationship, the Tribunal may not be justified in drawing an inference that the deceased would step into the shoes of the owner of the vehicle. The learned counsel placed reliance on paragraphs 18 and 19 of the judgment of the Apex Court in **National Insurance Company Ltd. v. Sinitha** [2011(4) KLT 821], in support of the said contention. According to the learned counsel, the insurer in the case on hand has not established the relationship between the victim and the owner of the vehicle and as such, they are liable to pay compensation to the appellants under Section 163A of the Act. 8. One cannot be both the person entitled to claim compensation and obliged to give compensation in respect of one and the same act is the principle recognised by the Apex Court in **Ningamma** . In the light of the said principle, according to me, the ratio in **Ningamma** would apply to all cases where the vehicle is used by persons authorised to do so by the owners, either expressly or impliedly, except in cases where the users are paid employees of the owners. Of course, paid employees are although persons authorised by the owner of the vehicle to use the vehicle, they would not step into the shoes of the owner as even otherwise, they are entitled to compensation from the owners under the Workmen's Compensation Act, 1923, renamed as **MACA.Nos.2189 OF 2010 & 3974 OF 2017** **7** Employee's Compensation Act, 1923. Coming to the issue relating to the burden to prove the relationship between the owner and user of the vehicle, when the sustainability of the claim is dependent on the relationship, it is for the claimants to prove the relationship, as it is fundamental that whoever desires the court to give judgment as to any legal right or liability dependent on the existence of facts must prove that those facts exist. Further, it is beyond dispute that the nature of the relationship between the owner and user of a vehicle would be known only to them and therefore, in the light of the principle enunciated in Section 106 of the Indian Evidence Act, 1872, only the claimants could be expected to prove the said relationship. Again, when one uses a vehicle owned by another, in the common course of natural events and human conduct, it can be presumed that such user is as permitted by the owner and it is for the person who asserts the contrary to establish the same. In the circumstances, I have no doubt that the burden to prove the relationship aforesaid would be on the user or his legal representatives. Coming to the facts of the cases on hand, the claimants have not pleaded the relationship between the owners and the deceased persons, in the claim petitions. They have also not adduced any evidence to prove the relationship between the owners of the vehicles and the **MACA.Nos.2189 OF 2010 & 3974 OF 2017** **8** deceased persons. In the absence of any pleading and evidence, the only inference possible is that the deceased were persons using the vehicle as permitted by its owners and that they would, therefore, step into the shoes of the owners. 9. Paragraphs 18 and 19 of the decision of the Apex Court in **Sinitha,** on which reliance was placed by the learned counsel for the appellants in M.A.C.A.No.3974 of 2017 _,_ read as follows :- “18. The second contention advanced at the hands of the learned counsel for the petitioner was, that Shijo being the rider of the motorcycle, cannot be treated as a third party. It was pointed out, that the claim under S.163A can only be raised at the behest of a third party. It seems, that the instant determination raised at the hands of the learned counsel for the petitioner, is based on the determination rendered by this Court in _Oriental Insurance Company Limited v. Jhuma Saha_ ((2007) 9 SCC 263), wherein, this Court held as under : “10. The deceased was the owner of the vehicle. For the reasons stated in the claim petition or otherwise, he himself was to be blamed for the accident. The accident did not involve motor vehicle other than the one which he was driving. The question which arises for consideration is that the deceased himself being negligent, the claim petition under S.166 of the Motor Vehicles Act, 1988 would be maintainable.” According to the learned counsel for the petitioner, since the rider of the vehicle involved in the accident was Shijo himself, he would stand in the shoes of the owner, and as such, no claim for compensation can be raised in an accident caused by him, under S.163A of the Act. **MACA.Nos.2189 OF 2010 & 3974 OF 2017** **9** 19. To substantiate his second contention, it would be essential for the petitioner to establish, that Shijo having occupied the shoes of the owner, cannot be treated as the third party. Only factual details brought on record through reliable evidence, can discharge the aforesaid onus. During the course of hearing, despite our queries, learned counsel for the petitioner could not point out the relationship between Shijo and the owner of the motorcycle involved in the accident. Shijo is not shown to be the employee of the owner. He was not even shown as the representative of the owner. In order to establish the relationship between the Shijo and the owner, the petitioner-Insurance Company could have easily produced either the owner himself as a witness, or even the claimants themselves as witnesses. These, or other witnesses, who could have brought out the relationship between the owner and Shijo, were not produced by the petitioner herein, before the Tribunal. The petitioner has, therefore, not discharged the onus which rested on its shoulders. Since the relationship between the Shijo and the owner has not been established, nor the capacity in which he was riding the vehicle has been brought out, it is not possible for us to conclude, that Shijo while riding the motorcycle on the fateful day, was an agent, employee or representative of the owner. It was open to the petitioner to defeat the claim for compensation raised by the respondents by establishing, that the rider Shijo represented the owner, and as such, was not a third party, in terms of the judgment rendered by this Court in _Oriental Insurance Company Limited_ case (supra). The petitioner failed to discharge the said onus. In view of the above, it is not possible for us to accede to the second contention advanced at the hands of the learned counsel for the petitioner”. It is seen from the extracted portion of the judgment that while considering the contention raised by the insurer in the said proceedings that the deceased in that case was also a person who would step into the shoes of the owner of the vehicle, the **MACA.Nos.2189 OF 2010 & 3974 OF 2017** **10** counsel for the insurer could not point out the relationship between the deceased and the owner of the vehicle. It is in the said circumstances, it was observed by Apex Court that it was obligatory for the insurer to establish the relationship to pursue the said contention. In so far as the question relating to the burden to prove the relationship between the owner and user of the vehicle in cases of this nature has not been considered by the Apex Court in the said case, the observations made therein can be construed only as observations made on the facts of that case. In the facts and circumstances, there is no merit in the appeals and the same are, accordingly, dismissed. Sd/- **P.B.SURESH KUMAR JUDGE** ## **SMA**