NALINAKSHAN and SANTHA S. and SHIJU v. VISHNU BALACHANDRAN and THE UNITED INDIA INSURANCE COMPANY LTD.

MACA NO. 2815 OF 2012 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 9[TH] DAY OF MARCH 2022 / 18TH PHALGUNA, 1943** **MACA NO. 2815 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 2086/2003 OF MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL ,TRIVANDRUM** ## **APPELLANT/S:** 1 NALINAKSHAN, S/O. NARAYANAN, CHARIVILAKATHU VEEDU, T.C. 14/1229, PADINJATTIL LANE, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. 2 SANTHA S., W/O. NALINAKSHAN, CHARIVILAKATHU VEEDU, T.C. 14/1229, PADINJATTIL LANE, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. 3 SHIJU, S/O. NALINAKSHAN, CHARIVILAKATHU VEEDU, T.C. 14/1229, PADINJATTIL LANE, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. BY ADVS. SRI.GRASHIOUS KURIAKOSE (SR.) SRI.GEORGE MATHEWS ## **RESPONDENT/S:** 1 VISHNU BALACHANDRAN, S/O. BALACHANDRAN, T.C. 1/2135, GOPALAM, NEAR C.G.HOSPITAL, PATTOM, THIRUVANANTHAPURAM, PIN-695004. 2 THE UNITED INDIA ASSURANCE COMPANY LTD. DIVISIONAL OFFICE, MALANKARA BUILDING, PALAYAM, THIRUVANANTHAPURAM, PIN-695001. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2815 OF 2012 2 ## **JUDGMENT** The appellants were the petitioners in OP(MV) No.2086/2003 on the file of the Motor Accidents Claims Tribunal, Thiruvananthapuram. The respondents in the appeal were the respondents before the Tribunal. 2. The appellants had filed the claim petition under Section 163 A of the Motor Vehicles Act, 1988 (in short, “Act”), claiming compensation on account of the death of Shibu (deceased) - son of the appellants 1 and 2 and brother of the 3[rd] appellant. It was their case that, on 01.12.2003, while the deceased was riding a motor cycle bearing registration No.KL 01 AC 6026 along with his friend Baiju on the pillion through the Palayam – Kesavadasapuram road, when they reached Plamoodu junction, the motor cycle hit against a wall. Both the deceased and the pillion rider sustained serious injuries. Even though the deceased was treated at the Medical College Hospital, Thiruvananthapuram, he lost his life on MACA NO. 2815 OF 2012 3 01.12.2003. The deceased was a tourist guide and he was earning a monthly income of Rs.3,000/-. The motor cycle was owned by the 1[st] respondent and was insured with the 2[nd] respondent. The appellants were the dependents and the legal heirs of the deceased. Hence, they claimed a compensation of Rs.6,00,500/- from the respondents, which claim was limited to Rs.5,00,000/-. 3. The 1[st] respondent did not contest the proceeding and was set ex-parte. 4. The 2[nd] respondent had filed a written statement, inter-alia, denying the allegations in the claim petition. It was stated that the accident was caused by a car, which hit the motorcycle from behind. Therefore, it was the driver, owner and insurer of the car, who were liable to pay the compensation amount. It was also stated that the compensation claimed was highly excessive. 5. The appellants produced and marked Exts.A1 to A7 in evidence. The 2[nd] respondent produced the MACA NO. 2815 OF 2012 4 insurance policy which was marked as Ext.B1. 6. The Tribunal after interpreting Section 163 A of the Act, arrived at a conclusion that, as the deceased had stepped into the shoes of the owner of the motor cycle, the appellants were not entitled to compensation under Section 163 A. The Tribunal also considered the question whether the appellants were entitled to the personal accident cover under the insurance policy, but answered the question also in the negative on the ground that the deceased was neither the registered owner nor the insured named in the policy. Therefore, the appellants were also not entitled to the personal accident cover. 7. Aggrieved by the dismissal of the claim petition, the petitioners are in appeal. 8. Heard; Sri. George Mathews, the learned counsel appearing for the appellant/petitioner and Sri.P.K. Manojkumar, the learned counsel appearing for the 2[nd] respondent/insurer. 9. The learned counsel appearing for the appellants MACA NO. 2815 OF 2012 **==> picture [6 x 9] intentionally omitted <==** placed strong reliance on paragraph 9.8 of the decision of the Honourable Supreme Court in **Ramkhiladi and** . **another vs. United India Insurance Company Ltd and another** [(2020) 2 SCC 550], wherein, the Honourable Supreme Court has categorically held that in the case filed under Section 163 A of the Act, the owner/driver is entitled to the personal accident cover mentioned in the policy, as the rider would step into the shoes of the owner. Hence, the appellants are entitled to an amount of Rs.1,00,000/- provided in the policy. 10. The above submission is strenuously countered by the learned counsel appearing for the 2[nd] respondent/insurer placing reliance on the decision of the Division Bench of this Court in **United India Insurance Company Ltd. Vs Vijayarajan** [2009 (3) KLT 269] and also on Ext.B1 insurance policy which states that only the owner cum driver of the vehicle would be entitled to the personal accident coverage, especially because there is no privity of contract between the insurer and a third 6 MACA NO. 2815 OF 2012 party driver. In the instant case, as the deceased was not the owner of the motor cycle, the appellants cannot aspire to claim the personal accident cover. In **Ramkhildai** (supra), the Honourable Supreme Court has not considered the conditions in the insurance policy, while directing the payment of the personal accident cover to the driver. Therefore, there is no error in the impugned award and the appeal is only liable to be dismissed. 11. The point that emerges for consideration in the appeal is whether the impugned award is sustainable in law or not ? 12. The law with regard to the maintainability of a claim petition under Section 163 A in the case in a self accident is no longer res-integra in view of the express declaration of law by the Honourable Supreme Court in **Ningamma and another vs. United India Insurance** **Company Ltd. [2009 KHC 5046]** , wherein it is held that, when the deceased borrows a vehicle from the MACA NO. 2815 OF 2012 7 owner and meets with a self accident, his legal heirs are not entitled to compensation, as the deceased steps into shoes of the owner. Therefore, the finding of the Tribunal in this regard is perfectly in consonance with the law laid down in **Ningamma** (supra). 13. Now coming to the next question whether the appellants are entitled to the personal accident coverage as per Ext.B1 policy. 14. This Court in **Vijayarajan** (supra) after referring to the terms and conditions of the insurance policy held that the owner and driver of the vehicle has to be the one and same person to claim the benefit of the personal accident cover. However in **Ramkhiladi** (supra) the Honourable Supreme Court has held as follows: “xxxxx 9.8. 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 lakh. Therefore, the deceased, as observed herein above, who would be in the shoes of the owner shall be entitled to a sum of Rs. 1 lakh, even as per the contract of insurance. However, it is the case on behalf of the original claimants that there is an MACA NO. 2815 OF 2012 8 amendment to the 2[nd] Schedule and a fixed amount of Rs. 5 lakh has been specified in case of death and therefore the claimants shall be entitled to Rs.5 lakh. 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 in 10.05.2018 i.e. much prior to the amendment in the 2[nd] Schedule. In the facts and circumstances of the present case, the claimants shall not be entitled to the benefit of the amendment to the 2[nd] Schedule. At the same time, as observed herein above, the claimants shall be entitled to Rs.1 lakh as per the terms of the contract of insurance, the driver being in the shoes of the owner of the vehicle”. (emphasis given) 15. The Honourable Supreme Court has in unequivocal words held in **Ramkhiladi** (supra) that the driver would step into the shoes of the owner of the vehicle. Therefore, the legal heirs of the deceased would also be entitled to the personal accident coverage. 16. In the light of the mandate enshrined in Article 141 of the Constitution of India, this Court is bound to follow the ratio decidendi in **Ramkhiladi** and is not empowered to interpret and give a different meaning to the ratio decidendi by holding that the Honourable MACA NO. 2815 OF 2012 9 Supreme Court had failed to consider the terms and conditions of the insurance policy. In the above legal matrix, I am of the definite view that, the appellants are entitled to an amount of Rs.1,00,000/- towards personal accident coverage provided in Ext.B1 policy. In the result, the appeal is allowed by setting aside the impugned award, and by allowing OP(MV) No.2086/2003 by ordering that the appellants are entitled to an amount of Rs.1,00,000/- with interest @ 6% per annum from the date of petition till the date of deposit and a cost of Rs.5,000/-. The 2[nd] respondent insurer is ordered to deposit Rs.1,00,000/- with interest and cost before the Tribunal within a period of 60 days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellants 1 and 2 in the ratio of 50:50. sd/- **C.S.DIAS, JUDGE** rkc/09.03.22