MACA.No.291 of 2010 & MACA.No.1137 of 2010

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942** **MACA.No.291 OF 2010** **AGAINST THE AWARD IN OPMV 567/2003 DATED 30-05-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,NEYYATTINKARA** ## **APPELLANT:** **UNITED INDIA INSURANCE CO. LTD. HOSPITAL JUNCTION, NEYYATTINKARA,, REP. BY THE MANAGER.** ## **BY ADV. SRI.RAJAN P.KALIYATH** ## **RESPONDENTS:** - **1 CHRISTAL BAI KAVADITHERI PUTHEN VEEDU,, MANJARAMOOLA, RUSSELPURAM POST,, NEYYATTINKARA.** - **2 BABY CHRISTAL BAI MINOR, REP. BY THE MOTHER AND NATURAL GUARDIAN, THE FIRST RESPONDENT, CHRISTAL BAI,, RESIDING AT DO. DO.** - **3 NARAYANAN @ HRISTUDAS RESIDING AT DO. DO.** - **4 SUSEELA RESIDING AT DO. DO.** - **5 SURESH KUMAR KUMARAVILASOM VEEDU, VIZHINJAM STREET,, THIRUVANANTHAPURAM.** - **6 AJI S/O.GEORGE NJARAVILA PUTHEN VEEDU,, MANJARAMOOLA, RUSSELPURAM POST,, NEYYATTINAKRA.** - **R1 BY ADV. SRI.J.ROBINSON R1 BY ADV. SRI.LATHEESH SEBASTIAN R1 BY ADV. SRI.R.T.PRADEEP R1 BY ADV. SRI.V.VIJULAL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05-03-2021, ALONG WITH MACA.1137/2010, THE COURT ON 10-03-2021 DELIVERED THE FOLLOWING:** MACA.291/2010, MACA.1137/2010 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942 MACA.No.1137 OF 2010** **AGAINST THE AWARD IN OPMV 1090/2003 DATED 30-05-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,NEYYATTINKARA** ## **APPELLANT:** **UNITED INDIA INSURANCE CO. LTD** **DIVISINAL OFFICE,NEYYATTINKARA,REPRESENTED BY THE, UNITED INDIA INSURANCE CO.LTD,OFFICE OF THE, REGIONAL MANAGER,HOSPITAL ROAD,ERNAKULAM.** **BY ADV. SMT.DEEPA GEORGE** ## **RESPONDENTS:** |**1**|**NISHA,**| |---|---| ||**W/O.DECEASED VIJAYAKUMAR @SANTHOSH,BUNGLOW**| ||**VEEDU,MANJARAMOOLA,RUSSELPURAM.PO, MARANALLOOR**| ||**VILLAGE,NEYYATTINKARA TALUK.**| |**2**|**AKILESH(MINOR)S/O.DECEASED VIJAYAKUMAR**| ||**@ SANTHOSH,MANJARAMOOLA,BUNGLOW VEEDU,RUSSELPURAM,**| ||**P.O,MARANALLOOR VILLAGE,NEYYATTINKARA TALUK.**| |**3**|**SANTHAMA M/O.DECEASED VIJAYAKUMAR**| ||**SANTHOSH,OF -DO- -DO-**| |**4**|**REMYA SISTER OF DECEASED VIJAYAKUMAR**| ||**@ SANTHOSH,OF -DO- -DO-**| |**5**|**AJI,S/O.GEORGE NJARAVILA PUTHEN VEEDU**| ||**MANJARAMOOLA,RUSSELPURAM.P.O,MARANALLOOR VILLAGE,,**| ||**NEYYATTINKARA TALUK.**| |**6**|**SURESH KUMAR,SO.SUBBAYYAN ACHARI**| ||**KUMARAVILASOM VEEDU,VIZHINJAM,, THIRUVANANTHAPURAM.**| ||**R1 BY ADV. SRI.GEO PAUL**| ||**R1 BY ADV. SRI.NOEL JOSEPH**| ||**R1 BY ADV. SRI.C.R.PRAMOD**| ||**R1 BY ADV. SRI.R.T.PRADEEP**| MACA.291/2010, MACA.1137/2010 3 **R1 BY ADV. SRI.K.V.REJANISH R1 BY ADV. SRI.SANU MATHEW R1 BY ADV. SRI.M.B.SANDEEP** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05-03-2021, ALONG WITH MACA.291/2010, THE COURT ON 10-03-2021 DELIVERED THE FOLLOWING:** MACA.291/2010, MACA.1137/2010 4 ## **P.V.KUNHIKRISHNAN, J** -------------------------------- MACA.291/2010 & MACA.1137/2010 ------------------------------- ## **JUDGMENT** Dated this the 10th day of March 2021 MACA.291/2010 is filed by the 2[nd] respondent in O.P.(MV)No.567/2003 on the file of Motor Accidents Claims Tribunal, Neyyattinkara. The respondents 1 to 4 filed the above claim petition under Section 166 of the Motor Vehicles Act. MACA No.1137/2010 was filed by the 2[nd] respondent in OP(MV).No.1090/2003. OP(MV).No.567/2003 was disposed by the tribunal along with OP(MV).No.1090/2003. (Hereinafter the parties are mentioned in accordance to their rank before the tribunal). 2. The brief facts are like this:- The deceased involved in O.P.(MV)No.567/2003 is one Shaji C Kumar @ Shaji. He was the rider of the motorcycle bearing registration No.KL-01-L-1120 and Vijayakumar @ Santhosh the deceased in OP(MV).No.1090/2003 was the pillion rider of the above MACA.291/2010, MACA.1137/2010 5 motorcycle. Petitioners in O.P.(MV)No.567/2003 are the wife, minor son and parents of the deceased Shaji C Kumar @ Shaji and petitioners 1 to 4 in OP(MV).No.1090/2003 are the wife, minor son, mother and minor sister respectively of the deceased Vijayakumar @ Santhosh. 3. MACA No.291/2010 was filed against the award in O.P.(MV)No.567/2003 on the file of Motor Accidents Claims Tribunal, Neyyattinkara and MACA No.1137/2010 was filed against the award in O.P. (MV)No.1090/2003. Since, these two appeals are connected, I am disposing these appeals by a common judgment. 4. To substantiate the case, the claimants produced Exts.A1 to A8. One witness was examined as RW1 on the side of respondents. Three documents were produced on the side of the respondents as B1 to B3. 5. Before the tribunal the following issues were framed:- “6. The following common issued are raised: (1).Did Shaji C Kumar and Vijayakumar die in the accident involving and out of the use of the motorcycle KL-01-L-1120 as alleged? (2) Are the applicants in the Ops MACA.291/2010, MACA.1137/2010 6 entitled to compensation as claimed, and if so, to what quantum? (3) In the event of any award being passed, on whom, is the liability to pay?” 6. First issue is found in favour of the applicants. Thereafter, the tribunal passed award in both the claim petitions. In both the claim petitions, the tribunal directed to pay the compensation by the insurance company and allowed them to recover the amount from Suresh Kumar who is common respondent in both the claim petitions. Aggrieved by the same, the insurance company filed these two appeals. 7. Heard the learned counsel for the appellant, and the learned counsel for the respondents. 8. The learned counsel for the appellant submitted that the claim petition in OP(MV) No.567/2003 is not maintainable under Section 163A because the rider of the motorcycle borrowed the vehicles from the registered owner and then the accident happened. The counsel relied the judgment of the apex court in **Ramkhiladi and another v. United India Insurance co.Ltd and another [2020 ACJ 627]** and the judgment of this court in **Sasikala v Aji Kumar [2019 (4)KLT** MACA.291/2010, MACA.1137/2010 7 **117].** The counsel also relied the decision of the apex court in **Ningamma and Another v. United India Insurance Company Ltd. [2009(13)SCC 710].** The counsel for the claimants submitted that the tribunal after considering the entire facts and circumstances passed the award and this court may not interfere with the impugned award. 9. I am considering MACA No.291/2010 first. Admittedly in this case, the legal heirs of the deceased rider of the motorcycle filed the applications under Section 163A. This court in Sasikala's case considered this point and observed like this:- _“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_ MACA.291/2010, MACA.1137/2010 8 _Act, 1923, renamed as 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 S.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 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.”_ MACA.291/2010, MACA.1137/2010 9 ## 10. Similarly, in Ramkhiladi's case, the apex court considered this point in detail and observed like this:- “5.4 An identical question came to be considered by this Court in the case of Ningamma 2009 ACJ 2020(SC). In that case, the deceased was driving a motorcycle which was borrowed from its real owner and met with an accident by dashing against a bullock cart ,i.e., without involving any other vehicle. The claim petition was filed under Section 163-A of the Act by the legal representatives of the deceased against the real owner of the motorcycle which was being driven by the deceased. To that, this Court has observed and held that since the deceased had stepped into the shoes of the owner of the vehicle, Section 163-A of the Act cannot apply wherein the owner of the vehicle himself is involved. Consequently, it was held that the legal representatives of the deceased could not have claimed the compensation under Section 163-A of the Act. Therefore, as such, in the present case, the claimants could have even claimed the compensation and/or filed the claim petition under Section 163-A of the Act against the driver, owner and insurance company of the offending vehicle i.e. motorcycle bearing registration No. RJ 29-2M 9223, being a third party with respect to the offending vehicle. However, no claim under Section 163-A was filed against the driver, owner and/or insurance company of the motorcycle bearing registration No. RJ 29-2M 9223. It is an admitted position that the claim under Section 163-A of the Act was only against the owner and the insurance company of the motorcycle bearing registration No. RJ 02-SA 7811 which was borrowed by the deceased from the opponent-owner Bhagwan Sahay. Therefore, applying the law laid down by this Court in the case of Ningamma (supra), and as the deceased had stepped into the shoes of the owner of the vehicle bearing registration No. RJ 02SA 7811, as rightly held by the High Court, the claim petition under Section 163A of the Act against the owner and insurance company MACA.291/2010, MACA.1137/2010 10 of the vehicle bearing registration No. RJ 02 -SA 7811 shall not be maintainable. 5.5 It is true that, in a claim under Section 163A of the Act, there is no need for the claimants to plead or establish the negligence and/or that the death in respect of which the claim petition is sought to be established was due to wrongful act, neglect or default of the owner of the vehicle concerned. It is also true that the claim petition under Section 163-A of the Act is based on the principle of no fault liability. However, at the same time, the deceased has to be a third party and cannot maintain a claim under Section 163-A of the Act against the owner/insurer of the vehicle which is borrowed by him as he will be in the shoes of the owner and he cannot maintain a claim under Section 163-A of the Act against the owner and insurer of the vehicle bearing registration No. RJ 02- SA 7811. In the present case, the parties are governed by the contract of insurance and under the contract of insurance the liability of the insurance company would be qua third party only. In the present case, as observed hereinabove, the deceased cannot be said to be a third party with respect to the insured vehicle bearing registration No. RJ 02 SA 7811. There cannot be any dispute that the liability of the insurance company would be as per the terms and conditions of the contract of insurance. As held by this Court in the case of Dhanraj 2005 ACJ 1(SC), an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorized representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. In the said decision, it is further held by this Court that Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle. 5.6 In view of the above and for the reasons stated above, in the present case, as the claim under Section 163A of the Act was made only against the owner and insurance company of the vehicle which was being driven by the deceased himself as borrower of the MACA.291/2010, MACA.1137/2010 11 vehicle from the owner of the vehicle and he would be in the shoes of the owner, the High Court has rightly observed and held that such a claim was not maintainable and the claimants ought to have joined and/or ought to have made the claim under Section 163A of the Act against the driver, owner and/or the insurance company of the offending vehicle i.e. RJ 29 2M 9223 being a third party to the said vehicle. 5.7 Now, so far as the reliance placed by the learned Advocate for the claimants on the decision of this Court in the case of Naveen Kumar 2018 ACJ 677 (SC), is concerned, on considering the issue involved in that decision, we are of the opinion that the said decision shall not be applicable to the facts of the case on hand and/or the same shall not be of any assistance to the claimants. In that case, the issue was as to who could be said to be the registered owner of the vehicle and the liability of the owner who sold the vehicle, but his name continued to be as the owner with the registering authority. To that, it was held that the person in whose name the motor vehicle stands registered is the owner of the vehicle for the purpose of the Act. 5.8 However, at the same time, even as per the contract of insurance, in case of personal accident the owner¬driver is entitled to a sum of Rs.1,00,000/-. Therefore, the deceased, as observed hereinabove, who would be in the shoes of the owner shall be entitled to a sum of Rs.1,00,000/-., even as per the contract of insurance. However, it is the case on behalf of the original claimants that there is an amendment to the Second Schedule and a fixed amount of Rs.5,00,000/- has been specified in case of death and therefore the claimants shall be entitled to Rs.5,00,000/-. The same cannot be accepted. In the present case, the accident took place in the year 2006 and even the Judgment and Award was passed by the learned Tribunal in the year 2009, and the impugned Judgment and Order has been passed by the High Court on 10.05.2018, i.e. much prior to the amendment in the Second Schedule. In the facts and circumstance of the present case, the claimants shall not be entitled MACA.291/2010, MACA.1137/2010 12 to the benefit of the amendment to the Second Schedule. At the same time, as observed hereinabove, the claimants shall be entitled to Rs.1,00,000/- as per the terms of the contract of insurance, the driver being in the shoes of the owner of the vehicle.” 11. In the light of the above principle, the rider of the motorcycle will step into the shoes of the registered owner. Admittedly, the deceased in this case is the rider of the motorcycle. There is no evidence adduced by the claimants to prove otherwise. He borrowed the motorcycle from the owner. In such circumstance, a petition under Section 163 A is not maintainable at the instance of the legal heirs of the rider of the motorcycle. Therefore, the award passed by the tribunal is to be set aside. 12. As far as MACA No.1137/2010 is concerned the claimants are the legal heirs of the pillion rider of the motorcycle. Ext.B3 is the insurance policy produced by the respondents. Admittedly, it is an act only policy. If its an act on policy the pillion rider is not covered by the said policy. The point is considered by the apex court in **United Insurance Company Ltd v Tilak Singh India [2006(2)KLT 884].** MACA.291/2010, MACA.1137/2010 13 13. In the light of the above principle, the insurance company has no liable to pay the compensation. In such situation, the 6[th] respondent in this appeal is liable to pay the compensation award. Therefore, these two appeals are disposed in the following manner:- i. MACA 291/2010 is allowed. The impugned award dated 30.5.2009 in OP(MV)No.567/2003 on the file of Motor Accidents Claims Tribunal, Neyyattinkara is set aside. ii. MACA No.1137/2010 is allowed in part. The direction to the appellant to pay the compensation is set aside and the 6[th] respondent in the appeal is directed to pay the compensation ordered by the tribunal. iii. The appellants are allowed to withdraw the amount already deposited as directed by this court and also the amount deposited as a pre-condition for filing these appeals. **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **JUDGE** ska