M/s United India Insurance Co. Ltd. v. Master Arun P. Nair and Omana Amma

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942** ## **MACA.No.774 OF 2006** **AGAINST THE AWARD IN OPMV 1564/2001 DATED 30-09-2005 OF SPECIAL JUDGE COURT FOR TRIAL OF SC/ST CASES, TVM** ## **APPELLANT/2ND RESPONDENT:** **M/S.UNITED INDIA INSURANCE CO. LTD. DIVISIONAL OFFICE NO.I. C.N.C.BUILDING, L.M.S., COMPOUND, PALAYAM, THIRUVANANTHAPURAM, REP. BY, THE ASSISTANT MANAGER, OFFICE OF THE REGIONAL, MANAGER, UNITED INDIA** **BY ADV. SMT.DEEPA GEORGE** ## **RESPONDENTS/PETITIONER AND 1ST RESPONDENT IN OP(MV):** **1 MASTER ARUN P.NAIR S/O.LATE PRABHAKARAN NAIR, REPRESENTED BY HIS, PATERNAL UNCLE, BALAKRISHNAN NAIR, S/O.KRISHNA, PILLAI, PRABHA NIVAS, MANDPATHINKADAVU,, OTTASEKHARAMANGALAM P.O. NEYYAT** **2 OMANA AMMA.P. W/O.LATE PRABHAKARAN NAIR PRABHA NIVAS, KURAVARA, MANDAPATHINKADAVU,, OTTASEKHARAMANGALAM P.O.THIRUVANANTHAPURAM.** **R1 BY ADV. SRI.NAGARAJ NARAYANAN R1 BY ADV. SRI.SAIJO HASSAN R1 BY ADV. SRI.A.S.SABU** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10-03-2021, THE COURT ON 18-03-2021 DELIVERED THE FOLLOWING:** **MACA.No.774 OF 2006** **2** **P.V.KUNHIKRISHNAN, J ----------------------------------------------M.A.C.A. No.774 of 2006 -------------------------------------Dated this the 18[th] day of March, 2021** ## **JUDGMENT** The 2[nd] respondent in O.P.(M.V.) No. 1564/2001 on the file of the Motor Accidents Claims Tribunal, Neyyattinkara is the appellant in this appeal. The 1[st] respondent in this appeal filed the claim petition under Sec.163A of the Motor Vehicles Act. The 1[st] respondent is the minor son of the deceased Prabhakaran Nair, who died in a motor vehicle accident. (Hereinafter the parties are mentioned in accordance to their rank before the Tribunal). 2. The case of the petitioner before the Tribunal is that on 21.8.2001 at about 1.45 pm, the deceased Prabhakaran Nair was riding the motor cycle bearing registration No.KL-01-D-9190 from Parassala to Kirathoor Nithiravila from west to east and when he reached near Thirumancholai and while negotiating a lorry coming from the opposite direction, there was skidding of the scooter and Prabhakaran Nair sustained fatal injuries. He was taken to the Medical College Hospital, Thiruvananthapuram, where he was declared dead. The minor son of the deceased Prabhakaran Nair filed **MACA.No.774 OF 2006** **3** a claim petition under Sec.163 A of the Motor Vehicles Act, in which the 1[st] respondent is the wife of the deceased and the mother of the petitioner. 3. To substantiate the case, Exts.A1 to A12 were marked on the side of the petitioner. After going through the evidence and the documents, the Tribunal passed an award allowing the applicant to realize Rs.2,12,500/- with interest at the rate of 9% per annum from 26.12.2010, the date of application till realization. Aggrieved by the above award, this appeal is filed by the 2[nd] respondent. 4. Heard counsel for the 2[nd] respondent/appellant and counsel for the petitioner/claimant. 5. The counsel for the 2[nd] respondent submitted that in the light of the judgment of the Apex Court in **Ningamma v. United India Insurance Company Ltd** [2009 KHC 5046] and the Division Bench judgment of this Court in **Jiljet and anr.** v. **Stamphen George and others** [2018 (5) KHC 206] **,** the claim petition under Sec. 163 A of the Motor Vehicles Act is not maintainable. 6. The counsel for the petitioner/claimant conceded about the principle laid down by the Apex Court in **Ningamma’s case (supra)** and **Jiljet’s case (supra).** But, the counsel submitted that as per Ext.A7, the policy issued by the 2[nd] respondent-Insurance Company, it is clear that additional premium is paid for the personal accident of the insured. **MACA.No.774 OF 2006** **4** Therefore, the counsel submitted that the principle laid down in **Ningamma’s case** (supra), that the petitioner will step into the shoes of the owner, is applicable here, for getting the personal accident of insured. The sum and substance of the argument of the counsel is that since the petitioner was riding the vehicle owned by the 1[st] respondent, he will step into the shoe of the owner and therefore, in the light of the payment of additional premium, the 2[nd] respondent is liable to pay the compensation applicable to the owner. 7. The Apex Court in **Ningamma’s case** (supra) considered this point in detail. The relevant portion of the judgment is extracted hereunder : "19. We have already extracted S.163A of the MVA hereinbefore. A bare perusal of the said provision would make it explicitly clear that persons like the deceased in the present case would step into the shoes of the owner of the vehicle. In a case wherein the victim died or where he was permanently disabled due to an accident arising out of the aforesaid motor vehicle in that event the liability to make payment of the compensation is on the insurance company or the owner, as the case may be as provided under S.163A. But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to pay the same is on him. This proposition is absolutely clear on a reading of S.163A of the MVA. Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under S.163-A of the MVA. 20. When we apply the said principle into the facts of the present case we are of the view that the claimants were not entitled to claim compensation under S.163-A of the MVA and to that extent the High Court was justified in coming to the conclusion that the said provision is not applicable to the facts and circumstances of the present case. However, the question remains as to whether an application for **MACA.No.774 OF 2006** **5** demand of compensation could have been made by the legal representatives of the deceased as provided in S.166 of the MVA. The said provision specifically provides that an application for compensation arising out of an accident of the nature specified in subs.(1) of S.165 may be made by the person who has sustained the injury; or by the owner of the property; or where death has resulted from the accident, by all or any of the legal representatives of the deceased; or by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be. When an application of the aforesaid nature claiming compensation under the provisions of S.166 is received, the Tribunal is required to hold an enquiry into the claim and then proceed to make an award which, however, would be subject to the provisions of S.162, by determining the amount of compensation, which is found to be just. Person or persons who made claim for compensation would thereafter be paid such amount. When such a claim is made by the legal representatives of the deceased, it has to be proved that the deceased was not himself responsible for the accident by his rash and negligent driving. It would also be necessary to prove that the deceased would be covered under the policy so as to make the insurance company liable to make the payment to the heirs. In this context reference could be made to relevant paras of S.147 of the MVA which reads as follows: 147. Requirements of policies and limits of liability- (1) In order to comply with the requirement of this Chapter, a policy of insurance must be a policy which- - (a) is issued by a person who is an authorised insurer; or - (b) insurer the person or classes of persons specified in the policy to the extent specified in sub-s.(2)(i) against any liability which may be incurred by him in respect of the death of or bodily [injury to any person, including owner of the goods or his authorised 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 a public place; - (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place: Provided that a policy shall not be required- - (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of his death of, or bodily injury to, any such employee- - (a) engaged in driving the vehicle, or - (b) if it is a public service vehicle engaged as conductor of the **MACA.No.774 OF 2006** **6** vehicle or in examining tickets on the vehicle, or (c) if its is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability. xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx (2) Subject to the proviso to sub-s.(1), a policy of insurance referred to in sub-s.(1), shall cover any liability incurred in respect of any accident, up to the following limits, namely: (a) save as provided in clause (b), the amount of liability incurred; (b) in respect of damage to any property of a third party, a limit of rupees six thousand: Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier. xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx (5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons." ## 8. This Court in **Jiljet’s case (supra)** considered the ## same point and the relevant paragraphs are extracted hereunder : 10. “A contention is put forth by the learned counsel for the appellants, that by virtue of the wordings in the conditions of the policy - Section II, there is liability for the insurer to satisfy the claim in respect of "any person". The said clause reads as follows: ## **"SECTION II - LIABILITY TO THIRD PARTIES** (1) Subject to the Limits of Liability the Company will indemnify the insured in the event of accident caused by or arising out of the use of Motor Cycle against all sums including claimant's cost and expenses which the insured shall become legally liable to pay in respect of **MACA.No.774 OF 2006** **7** (i) death or bodily injury to any person including person conveyed in or on the Motor Cycle provided such person is not carried for hire or reward. (ii) damage to property other than property belonging to the insured or hold in trust by or in the custody or control of the insured or any member of the insured's household or being conveyed by the Motor Cycle. Provided that company shall not be liable in respect of death, injury or damage caused or arising beyond the limits of any carriage way or thoroughfare in connection with the bringing of the load to the Motor Cycle for loading thereon or taking away of the load from the Motor Cycle after unloading therefrom." 11. Obviously, the heading of 'Section II' itself says that it is in respect of the 'liability to 3rd parties'. As held by the Apex Court in Ningamma's case (cited supra) and also by the Full Bench of this Court in Oriental Insurance Co. Ltd. v. Joseph V.V. @ Johny and Others, 2012 (2) KHC 1 : 2012 (2) KLT 132 : ILR 2012 (2) Ker. 1 : 2012 (2) KLJ 195 : AIR 2012 Ker. 116 the insured is not 3rd party and rider of the motor cycle will step into the shoes of the insured. This position stands in tact. The liability undertaken by the insurer is to "Indemnify the insured", to meet the claim because of the accident which the insured shall become legally liable to pay in respect of the cause involving death or bodily injury to a person including the person conveyed in or on the motor cycle, provided that such person is not carried for hire or reward; or in respect of the property; to the extent as specified therein. The accident on riding a motorcycle by the owner / insured was declared as not an instance to be covered by the insurer, by the Apex Court, in New India Assurance Company v. Sadanand Mukhi, 2009 KHC 4129 : 2009 (2) SCC 417 : 2009 (2) KLT SN 25 : AIR 2009 SC 1788 : 2009 (1) SCALE 252 : 2009 (1) SCC (Cri) additional premium is required to be paid. There is no legal liability for the insured, to satisfy any claim to himself and as such, the term 'any person' mentioned under the clause extracted above does not take in the insured or rider of the motor cycle, who has stepped into the shoes of the insured as held by the Apex Court in Ningamma's case (cited supra). 12. In the above circumstances, this Court is of the firm view that the rider of the motorcycle is never a '3rd party' and in the instant case, no wider coverage was provided in respect of him, by paying any additional premium. The verdict passed by the Tribunal is perfectly within the four walls of law and it does not warrant any interference. Appeal fails and it is dismissed accordingly.” **MACA.No.774 OF 2006** **8** 9. Therefore, in the light of the above principle laid down by the Apex Court, which is followed by this Court, it is clear that the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under Sec.163A of the Motor Vehicles Act. Admittedly, the deceased was the husband of the 1[st] respondent, who is the registered owner of the vehicle. Petitioner is the minor son of the deceased and the 1[st] respondent. Therefore, in the light of **Ningamma’s case (supra),** the petition under Sec.163A of the Motor Vehicles Act is not maintainable and consequently, the application is to be rejected. 10. Then, the point raised by the counsel for the petitioner is to be decided. According to him, an additional premium is paid towards personal accident to the insured and therefore, the 2[nd] respondent is liable to pay compensation. This point is also considered in detail by the Punjab and Haryana High Court in **National Insurance Company Ltd. v. Ranjana and others** [2020 ACJ 1185]. The relevant portion of the judgment is extracted hereunder : “11. The issue now arise is that once it is held that borrower steps into the shoes of owner can a contrary stand be taken by insurance company that borrower will not be covered under PAC. 12. The answer is yes, he will not be covered under PAC. 13. It would be appropriate at this stage to quote Sections 140 **MACA.No.774 OF 2006** **9** and 163-A of the Act and GR-36. “140. Liability to pay compensation in certain cases on the principle of no fault – (1) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicles shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section. (2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of fifty thousand rupees and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of twenty – five thousand rupees. (3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or de-fault of the owner or owners of the vehicle or vehicles concerned or of any other person. (4) A claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement. (5) Notwithstanding anything contained in sub-section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force: Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under section 163-A. **MACA.No.774 OF 2006** **10** 163-A Special provisions as to payment of compensation on structured formula basis - (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle of the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehiclecompensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation.- For the purposes of this sub-section, “permanent disability” shall have the same meaning and extent as in the Workmen's Compensation Act, 1923. (2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule. GR 36 Personal Accident (PA) Cover under Motor Policy (not applicable to vehicles covered under Section E, F and G of Tariff for Commercial Vehicles) A. Compulsory Personal Accident Cover for Owner-Driver Compulsory Personal Accident Cover shall be applicable under both Liability only and Package policies. The owner of insured vehicle holding an 'effective' driving license is termed as Owner-Driver for the purposes of this section. Cover is provided to the Owner-Driver whilst driving the vehicle including mounting into/dismounting from or travelling in the insured vehicle as a co-driver. NB This provision deals with Personal Accident cover and only the registered owner in person is entitled to the compulsory cover where he/she holds an effective driving license. Hence compulsory PA cover cannot be granted where a vehicle is owned by a company, a partnership firm or a similar body corporate or where the owner driver does not hold an effective driving license. In all such cases, where compulsory PA cover cannot be granted, the **MACA.No.774 OF 2006** **11** additional premium for the compulsory P.A. Cover for the owner-driver should not be charged and the compulsory P.A. Cover provision in the policy should also be deleted. Where the owner-driver owns more than one vehicle, compulsory PA cover can be granted for only one vehicle as opted by him/her. 14. It is not disputed that in the present case, that extra premium was paid for PAC for owner-driver. The term 'ownerdriver' has been defined under GR-36. It states “Compulsory Personal Accident Cover shall be applicable under both policies i.e. Liability Only and Package policies. The owner of insured vehicle holding an 'effective driving license is termed as OwnerDriver for this purposes. The definition clearly restricts the meaning of 'owner-driver'. It only includes owner of the insured vehicle. There is a further rider that for claiming compensation for PAC owner should be holding an 'effective' driving license. 15. Note in GR-36 states that only the registered owner in person is entitled for Personal Accident Cover if he holds an effective driving license. The said Cover is not to be granted where the vehicle is owned by a company, a partnership firm or a similar body corporate. This further clarifies that representative of the owner will not fall within the ambit of PAC. 16. The term 'owner-driver' has been defined, hence, no word can be added or deleted from the definition to extend the benefit to claimant so that the term 'owner-driver' can be stretched to mean owner or driver.” 11. I respectfully agree with the above decision of the Punjab and Haryana High Court. After considering the provisions of the Motor Vehicles Act and other relevant materials, it is concluded by the Punjab and Haryana High Court that the Insurance Company is not liable to pay compensation in such situation also. The Insurance Company is liable to pay only as per the terms of the policy. The additional premium is paid for personal accidents only to the “insured”. No words can be added or deleted from the definition to the extent the **MACA.No.774 OF 2006** **12** benefits to the claimants, so that the term insurer can be stretched to make the borrower or any other persons also. In such circumstances, according to me, the claim petition is not maintainable .The deceased stepped into the shoes of the owner and therefore, the minor son cannot file a claim petition under Sec.163A of the Motor Vehicles Act. Consequently, the impugned award is to be set aside. Therefore, this appeal is allowed. The impugned award dated 30.09.2005 on the file of the Motor Accidents Claims Tribunal, Neyyattinkara is set aside. The amount, if any deposited by the appellant-Insurance Company shall be disbursed to them. SD/- **P.V.KUNHIKRISHNAN JUDGE** SKS