National Insurance Company Limited v. Anumol Soye and others (MACA 2460 of 2010)

MACA 2460 of 2010 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 06TH DAY OF AUGUST 2019 / 15TH SRAVANA, 1941** ## **MACA.No.2460 OF 2010** **AGAINST THE AWARD IN OPMV 970/2001 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA** ## **APPELLANT/ SECOND RESPONDENT :** **NATIONAL INSURANCE COMPANY LIMITED INDORE, NOW REPRESENTED BY ITS MANAGER,, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G. ROAD, KOCHI - 35.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/PETITIONERS AND 1ST RESPONDENT :** - **1 ANUMOL SOYE, W/O.LATE SOYE, KADANKAVIL HOUSE, ANCHERI.P.O, ALAKODE VILLAGE 680 006.** - **2 BABY OF SOYE MINOR REPRESENTED BY HIS MOTHER IST RESPONDENT, -DO-** - **3 JOSE.K.T -DO-** - **4 SELLAMMA W/O. JOSE -DO-** **5 PRAKASH MAHOR 6/18, MAHESH NAGAR, INDORE P.O., MADHYAPRADESH 452 020.** **R1 TO R4 BY ADV. SRI.JOSE MATHEW KAVALAKALAM R1 TO R4 BY ADV. SRI.T.J.MICHAEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA 2460 of 2010 2 ## **P.B.SURESH KUMAR, J.** **-----------------------------------------------** **M.A.C.A.No.2460 of 2010** **-----------------------------------------------** **Dated 6[th] August, 2019** ## **J U D G M E N T** The insurer in a proceeding for compensation before the Motor Accidents Claims Tribunal has come up in this appeal challenging the decision of the Tribunal. 2. One Soye Jose died in a motor accident on 22.8.2001. The deceased was driving a car registered in the name of the first respondent in the proceedings and the accident occurred when he lost control over the vehicle and dashed on a Banyan tree on the side of the road. The claim petition was filed by the legal representatives of the deceased under Section 163A of the Motor Vehicles Act claiming compensation from the registered owner and insurer of the vehicle. The registered owner of the vehicle remained ex parte in the proceedings. The insurer of the vehicle contested the claim petition contending, among others, that the deceased being a person stated to be earning a sum of Rs.5,796/- per month, his legal representatives are not entitled to compensation under Section 163A of the Act. It was also contended by the insurer that the deceased was the owner MACA 2460 of 2010 3 himself of the vehicle involved in the accident and the policy of insurance does not cover the risk of the owner-cum-driver of the vehicle. The Tribunal rejected the contention raised by the insurer as to the income of the deceased and determined the compensation that could be claimed by the claimants in terms of Section 163A of the Act as Rs.2,80,436/-. It, however, found that the deceased was the ownercum-driver of the vehicle and that the policy is a private car package policy covering the risk of the owner-cum-driver to the extent of Rs.2,00,000/-. In the circumstances, the Tribunal passed an award permitting the claimants to realize Rs.2,00,000/- from the insurer of the vehicle. The insurer of the vehicle is aggrieved by the said decision of the Tribunal. 3. Heard the learned senior counsel for the appellant as also the learned counsel for the claimants. 4. The learned senior counsel for the appellant contended that the specific pleading of the claimants in the claim petition was that the deceased was earning Rs.5796/- by way of monthly salary from Vindhyachan Academy, Dewas, Madhyapradesh. According to the learned counsel, on that sole ground, the claim petition should have been dismissed by the Tribunal as, if the deceased was earning Rs.5,796/- by way of monthly salary, his yearly income would exceed Rs.40,000/-. It was also contended by the learned senior counsel that MACA 2460 of 2010 4 it is a case of self accident and in a case of this nature, the driver of the vehicle would step into the shoes of the owner of the vehicle and the obligation to pay compensation under Section 163A being one fastened on the owner of the vehicle, a person stepping into the shoes of the owner will not be entitled to compensation under the said provision. In support of the said contention, the learned senior counsel placed reliance on the decision of the Apex Court in **Ningamma and Another** v. **United India Insurance Company Ltd.** [2009 KHC 5046] and the decision of this court in **Jiljet and Another** v. **Stamphen George and others** [2018(5)KHC 206] 5. Per contra, the learned counsel for the claimants submitted that the deceased was earning only a sum of Rs.3,250/- by way of his monthly salary and the said fact was proved in the proceedings by producing Ext.A2 salary certificate. As such, according to the learned counsel, the Tribunal cannot be faulted for having treated the deceased as a person who does not have yearly income exceeding Rs.40,000/-. It was contended by the learned counsel that the proceedings before the Tribunal being inquisitorial in nature and the provision under which compensation is claimed being a social welfare measure, the pleadings of the claimants does not preclude the Tribunal from arriving at a true finding as to the income of the deceased. It was also contended by the learned counsel, placing MACA 2460 of 2010 5 reliance on the cover note of the policy produced by the claimant in the proceedings before the Tribunal, that a sum of Rs.15/- has been collected by the insurer as additional premium for covering the risk of the driver of the vehicle and as the risk of the driver was covered by the policy issued, the Tribunal should have passed an award against the insurer for the entire amount of compensation determined as due to the claimants. 6. I have considered the submissions made by the learned counsel on either side. 7. As noted, the victim of the accident was admittedly driving the vehicle involved in the accident. He was therefore not a third party. If he is not a third party, his risk is not covered by a policy in terms of the requirements of the Act. Insurer would be liable in such cases only if the risk of the driver is also covered by a separate contract on an additional premium. It is in this context, the learned counsel for the claimants raised the argument based on the alleged payment of additional premium for the driver. Ext.B1 is the copy of the private car package policy issued by the insurer for the vehicle involved in the accident. It clarifies that on receipt of additional premium, the insurer has undertaken to cover the risk of only the paid driver. The relevant clause in the policy reads thus: “17. PERSONAL ACCIDENT COVER TO PAID DRIVERS, CLEANERS AND CONDUCTORS: MACA 2460 of 2010 6 In consideration of the payment of an additional premium, it is hereby understood and agreed that the insurer undertakes to pay compensation on the scale provided below for bodily injury as hereinafter defined sustained by the paid driver/cleaner/conductor in the employ of the insured in direct connection with the vehicle insured whilst mounting into dismounting from or travelling in the insured vehicle and caused by violent accidental external and visible means which independently of any other cause shall within six calendar months of the occurrence of such injury result in:- |Details of injury|Scale of compensation| |---|---| |i) Death|100.00%| |ii) Loss of two limbs or sight of two eyes or one limb and sight<br>on one eye|100.00%| |iii) Loss of one limb or sight of one eye|50.00%| |iv) Premium Total Disablement from injuries other than named<br>above|100.00%| Provided always that (I) Compensation shall be payable under only one of the items (i) to (iv) above in respect of any such person arising out of any one occurrence and total liability of the insurer shall not in the aggregate exceed the sum of Rs......* during any of period of insurance in respect of any such person. (2) No compensation shall be payable in respect of death or injury directly or indirectly wholly or in part arising or resulting from or traceable to (a) intentional self injury suicide or attempted suicide physical defect or infirmity or (b) an accident happening whilst such person is under the influence of intoxicating liquor or drugs. (3) Such compensation shall be payable only with the approval of the insured named in the policy and directly to the injured person or his/her legal representative(s) whose receipt shall be a full discharge in respect of the injury of such person. Subject otherwise to the terms, exceptions, conditions and limitations of this policy. *The Capital Sum insured (CSI) per person is to be inserted”. In the light of the aforesaid clause, the contention raised by the learned counsel for the claimants based on the additional premium collected by the insurer for covering the risk of the driver is only to be MACA 2460 of 2010 7 rejected and I do so. 8. It is seen that the Tribunal has directed the insurer to pay a sum of Rs.2,00,000/- by way of compensation to the legal representatives of the deceased as it was found that there was a personal accident cover to the tune of Rs.2,00,000/- for the ownercum-driver of the vehicle in terms of the policy issued. It is clarified in Ext.B1 policy that this cover is available only to the registered owner of the vehicle. The relevant clause reads thus:- “SECTION III-PERSONAL ACCIDENT COVER FOR OWNER-DRIVER The company undertakes to pay compensation as per the following scale for bodily injury/death sustained by the owner-driver of the vehicle, in direct connection with the vehicle insured or whilst driving or mounting into/dismounting from the vehicle insured or whilst travelling in it as a codriver, caused by violent accidental external and visible means which independent of an other cause shall within six calendar months of such injury result in: |Nature of injury|Scale of compensation| |---|---| |(i) Death|100.00%| |(ii) Loss of two limbs or sight of two eyes or<br>one limb and sight of one eye|100.00%| |(iii) Loss of one limb or sight of one eye|50.00%| |(iv) Permanent total disablement from<br>injuries other than named above|100.00%| Provided always that A) Compensation shall be payable under only one of the items (I) to (iv) above in respect of the owner-driver arising out of any one occurrence and the total liability of the insurer shall not in the aggregate exceed the sum of Rs.2 lakhs during any one period of insurance. B) No compensation shall be payable in respect of death or bodily injury directly or indirectly wholly or in part arising or resulting from or traceable to MACA 2460 of 2010 8 (1) intentional self injury suicide or attempted suicide physical defect or infirmity or (2) an accident happening whilst such person is under the influence of intoxicating liquor or drugs. C) Such compensation shall be payable directly to the insured or to his/her legal representatives whose receipt shall be the full discharge in respect of the injury to the insured. - 1) This cover is subject to (a) The owner-driver is the registered owner of the vehicle insured herein; - (b) the owner-driver is the insured named in this policy (c) The owner-driver holds an effective driving licence, in accordance with the provisions of Rule 3 of the Central Motor Vehicles Rule, 1989 at the time of the accidental (d) The fact that the owner is likely to drive the vehicle disclosed in the proposal and the required extra premium paid”. Interpreting identical clause, a Division Bench of this Court has held in **United India Insurance Co. Ltd.** v. **Vijayarajan** [2009(3) KLT 269] that the legal representatives of the victim who was not the registered owner of the vehicle, are not entitled to the benefit of the personal accident cover of a simialr nature. If that be so, the insurer has no liability to compensate the claimant under the personal accident cover in favour of the owner-cum-driver of the vehicle also. 9. The first claimant, the wife of the victim, who gave evidence in the proceedings admitted that the vehicle involved is one purchased by the victim. In other words, the victim was the owner of the vehicle himself, though the registration of the vehicle was not in his name. If the victim was the owner of the vehicle himself, if there is MACA 2460 of 2010 9 no insurance coverage, his legal representatives cannot claim compensation under Section 163A of the Act as the obligation to pay compensation under the said provision is on the owner himself. In the result, the appeal is allowed, the impugned award is set aside and the claim petition is dismissed. ## **Sd/-** **P.B.SURESH KUMAR, JUDGE.** tgs