High Court of KeralaSingle Judge2018-11-19MACA No.523/2009 dismissed; MACA No.874/2009 al...

MACA Nos. 523 of 2009 and 874 of 2009, High Court of Kerala at Ernakulam

Case / Petition Number:MACA No. 523 of 2009; MACA No. 874 of 2009

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2018-11-19
Court Decision / Holding: MACA No.523/2009 stands dismissed. MACA No.874/2009 is allowed, setting aside the award against the insurer of the ambulance and directing the Insurance Company to credit compensation by NEFT to the claimant’s account after the claimant furnishes bank details (with a copy to the Insurance Company) within one month; failure to comply allows the claimant to approach the Tribunal for enforcement.
Final Disposition: MACA No.523/2009 dismissed; MACA No.874/2009 allowed (set aside against ambulance insurer) with NEFT payment directions and bank-detail compliance by the claimant.

Parties to the Case

Appellants / Petitioners

Biju S.
United India Insurance Company Limited

Respondents

Star Health Transport Officer Directorate of Health Service, Trivandrum
John
United India Insurance Company Ltd.
K. Chandrashekaran Nair
M.P. John Meledath House, Karuvattta, Adoor
State Health Transport Officer Directorate of Health Services, Thiruvananthapuram

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Ajeesh S. Brite
• Sri Mathews Jacob (Sr.)
• Sri P. Jacob Mathew

Counsels for Respondents

• Sri Mathews Jacob (Sr.)
• Sri P. Jacob Mathew
• Sri Renil Anto
• Sri M.T Suresh Kumar

Case Synopsis & Summary

These MACA appeals arise from a single accident on 28 June 1999 involving a lorry and an ambulance. The Motor Accidents Claims Tribunal awarded modest compensation to the lorry driver for injuries and vehicle damage, and held that the insurer of the ambulance was not liable. The two appeals concerned: (i) MACA 523 of 2009 by the lorry driver seeking enhancement of the Tribunal’s award and challenging the challenge to liability on the insurer, and (ii) MACA 874 of 2009 by United India Insurance Company Ltd. challenging the Tribunal’s findings and urging that the insurer of the ambulance bears no liability. The court examined authorities including Jiljet & Another v. Stephen George & Others (following Ningamma v. United India Insurance Co. Ltd.) and United India Insurance Co. Ltd. v. Mohanan and Others. The court noted that in the cited two-vehicle scenarios, Section 163A may apply in some contexts, but the present facts show the ambulance driver cannot pursue indemnification from the insurer of the lorry where the driver is the claimant and his own negligence is involved. Relying on the driver-stands-in-the-owner doctrine, the court held that liability could not be imposed on the insurer. Consequently, MACA 523/2009 was dismissed, while MACA 874/2009 was allowed, with the award set aside against the ambulance insurer and directions for payment by NEFT after the claimant provides bank details.

Provisions of Law Cited

Section 163A of the Motor Vehicles Act, 1988

Legal Doctrines & Maxims

Driver steps into the shoes of the owner (Ningamma principle)
No substantial liability on owner or insurer where the claimant driver is the other vehicle’s driver and the owner's liability is contingent on the other vehicle’s fault

Submissions & Arguments

Contentions of Appellants / Petitioners

The lorry-driver appellant in MACA 523 contends for enhancement of the Tribunal’s award and argues that the evidence (Exts A7–A12) supports higher compensation for injuries and property damage. He relies on authorities suggesting potential liability of an insurer under Section 163A in appropriate two-vehicle scenarios, and emphasizes that the award undervalues damages. The appellant in MACA 874 (insurer) argues there is no liability on the ambulance insurer since the driver’s negligence does not entail insurer indemnification; relying on Ningamma and related lines, the insurer contends that the driver cannot anchor a claim against the insurer when the fault lies with the ambulance driver and the other vehicle’s insurer should not be saddled with liability.

Contentions of Respondents

Respondents oppose enhancement in MACA 523 and contend, following Jiljet and Ningamma, that the driver-insurer relationship does not render the ambulance insurer liable where the driver’s own negligence is involved. They rely on Mohanan to argue that Section 163A may apply in certain two-vehicle contexts but not in the present case, where the award is against the insurer of the ambulance rather than the owner. They submit that the two-vehicle scenario does not justify imposing liability on the ambulance insurer for the injuries sustained by the lorry driver; thus the Tribunal’s findings deserve sustained rejection or limited reliance.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Jiljet v. Stephen George & Others	[2018 (5) KHC 206]	Positive	Cited as authority for the principle that the driver stands in the shoes of the owner, limiting insurer liability in certain two-vehicle scenarios.
Ningamma v. United India Insurance Co. Ltd.	[AIR 2009 SC 3056]	Positive	Cited as the foundational authority for the driver-in-owner doctrine later followed by Jiljet.
United India Insurance Co. Ltd. v. Mohanan and Others	[2011 KHC 567]	Distinguished	Mentioned to show a contrary stance where 163A could apply, but the present facts distinguish this case.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **MONDAY, THE 19TH DAY OF NOVEMBER 2018 / 28TH KARTHIKA, 1940** ## **MACA.No. 523 of 2009** **AGAINST THE AWARD IN OP[MV] NO.1153/1999 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA DATED 14-01-2008** ## **APPELLANT/PETITIONER:** **BIJU S., AGED 30 YEARS S/O.SULAIMAN RAWTHER, R/AT HOUSE NO.1, DR.ZAKIR HUSSAIN NAGAR, KANNAMKODU, ADOOR, PATHANAMTHITTA DISTRICT.** **BY ADV. SRI.AJEESH S.BRITE** ## **RESPONDENTS/RESPONDENT:** **1 STAR HEALTH TRANSPORT OFFICER DIRECTORATE OF HEALTH SERVICE, TRIVANDRUM. 2 JOHN, AGED 44 YEARS MELADATHU HOUSE, KARUVATTA, MOONNALM, ADOOR, PATHANAMTHITTA DISTRICT. 3 UNITED INDIA INSURANCE COMPANY LTD., BR. OFFICE, KIZHAKKEDATH BUILDINGS, 2ND FLOOR, PATHANAMTHITTA, PATHANAMTHITTA DISTRICT-689645. 4 K.CHANDRASHEKARAN NAIR PANNAPUZHA HOUSE, VAZHOOR EAST P.O., KOTTAYAM. BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW, SC SENIOR GOVERNMENT PLEADER SRI.RENIL ANTO** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19.11.2018, ALONG WITH MACA NO.874/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No. 523 & 874 of 2009 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **MONDAY, THE 19TH DAY OF NOVEMBER 2018 / 28TH KARTHIKA, 1940** **MACA. No.874 of 2009** **AGAINST THE AWARD IN OP[MV] NO.465/2000 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA DATED 15-09-2008** **APPELLANT/PETITIONER:** **UNITED INDIA INSURANCE COMPANY LIMITED PATHANAMTHITTA, NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, “SHARANYA”, HOSPITAL ROAD, KOCHI-11.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/PETITIONER & 1ST RESPONDENT:** **1 M.P.JOHN MELEDATH HOUSE, KARUVATTA, ADOOR. 2 STATE HEALTH TRANSPORT OFFICER DIRECTORATE OF HEALTH SERVICES, THIRUVANANTHAPURAM.** **BY ADVS. SRI.M .T SURESH KUMAR SENIOR GOVERNMENT PLEADER SRI.RENIL ANTO** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19.11.2018, ALONG WITH MACA NO.523/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No. 523 & 874 of 2009 3 ## **JUDGMENT** **The appeals arise from the very same accident with respect to two awards. A lorry dashed against an ambulance and both the drivers of the vehicles were injured. The accident occurred on 28.06.1999 and the Tribunal found that the ambulance driver was negligent. OP(MV) No.1153 of 1999 was filed by the lorry driver, who suffered injuries in the accident. The lorry was also damaged, for which also claim was raised. OP(MV) No.465 of 2000 was filed by the ambulance driver. The appeal of the Insurance Company is against the award passed in OP(MV) No.465 of 2000. The appeal of the lorry driver is for enhancement of the award granted by the Tribunal in OP(MV) No.1153 of 1999.** **2. M.A.C.A. No.874 of 2009 has been filed by the Insurance Company contending that there is no liability cast on the insurer of the ambulance van** MACA.No. 523 & 874 of 2009 4 **for reason of the injury having been caused by the negligence of the driver of the vehicle, which has been insured. A learned Single Judge of this Court in** _**Jiljet & Another v. Stephen George & Others [2018 (5) KHC 206]**_ **following** _**Ningamma v. United India Insurance Co. Ltd. [AIR 2009 SC 3056]**_ **held that the driver steps into the shoes of the owner and there is no question of any liability on the owner or indemnification by the Insurance Company.** **3. The learned Counsel for the appellant relies on the judgment of a Division Bench of this Court in** _**United India Insurance Co. Ltd. v. Mohanan and Others [2011 KHC 567],**_ **wherein despite the negligence of the driver it was held that a claim under Section 163A would lie. However, this does not help the respondent herein, since though therein driver was found to be negligent, the claim was against the other vehicle involved in the accident. This is very evident from the question** MACA.No. 523 & 874 of 2009 5 **framed by the Court seen in paragraph 1, which is extracted hereunder:** _**“Where two vehicles are involved in an accident and the driver/rider of one vehicle suffers injury on account of his own alleged negligence is he entitled to sustain a claim under S.163A of the Motor Vehicles Act against the owner and authorised insurer of the other vehicle involved in the accident? This is the crucial question arising for consideration before us.”**_ **4. In the present case, if the ambulance driver had raised a claim against the lorry, then necessarily Section 163A could have been allowed. The ambulance driver having impleaded only his own registered owner and the Insurance Company, cannot claim compensation from the registered owner or indemnification by the Insurer, for the injuries sustained in an accident caused by his own negligence. In such circumstances, M.A.C.A. No.874 of 2009 has to be allowed setting aside the award passed as against the insurer of the ambulance,** MACA.No. 523 & 874 of 2009 6 **which was involved in the accident and the driver of which, who was also the claimant, was found to be negligent.** **5. OP(MV) No.1153 of 1999 was filed by the lorry driver. The injuries suffered by the lorry driver, who was aged 20 years, were only small abrasions for which Rs.10,000/- was awarded by the Tribunal. There is no cause for any enhancement on that count. For damage to the vehicle, another Rs.10,000/- was granted. The appellant claims enhancement. Exts.A7 to A9 documents were relied on to substantiate the case of personal injuries caused. The Tribunal found that Ext.A7 Wound Certificate shows only abrasions and Ext.A8 Discharge Card discloses inpatient treatment for 15 days. Ext.A9 are the series of medical bills, which shows the total amount of Rs.602.59. It is hence the Tribunal adopted a lumpsum amount of Rs.10,000/- for the purpose of compensation, which** MACA.No. 523 & 874 of 2009 7 **is not liable to be interfered with. As to the property damage, Ext.A5 is the report of the Assistant Motor Vehicle Inspector. Ext.A5 report only speaks of the damages caused and does not assess the amounts required for repairing the lorry. The reliance placed for sustaining the claim of Rs.1,75,000/- is on Exts.A11 to A12 quotations issued by various private parties. None were examined to prove the documents. It is also pertinent that the accident was caused in the year 1999 and quotations were of the year 2006. It cannot be said that the lorry was not repaired for so long. Ext.A10 is dated 08.09.2006, however Exts.A11 & A12 are not even dated. No reliance can be placed on the said documents.** **In such circumstances, MACA No.523/2009 stands dismissed. The appellant would not be entitled to the interest for 297 days, being the delay occasioned in filing the appeal. The** MACA.No. 523 & 874 of 2009 8 **appellant shall produce a copy of a cancelled cheque of the Bank account in his name with copy of AADHAAR before the Tribunal within one month, with copy to the Insurance Company. The Insurance Company shall credit the amount through NEFT of the said account, failing which, the applicant can approach the Tribunal.** Sd/- **K.VINOD CHANDRAN JUDGE** sp/28/11/18 **//True Copy// P.A. To Judge**