National Insurance Company Limited v. Ramachandran and Thilakan C.S.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 6[TH] DAY OF SEPTEMBER 2021 / 15TH BHADRA, 1943** **RP NO. 434 OF 2019** **AGAINST THE JUDGMENT DATED 26.11.2018 IN MACA NO.2648/2018** **OF HIGH COURT OF KERALA** ## **REVIEW PETITIONER/APPELLANT:** **NATIONAL INSURANCE COMPANY LIMITED, REPRESENTED BY BRANCH MANAGER, BRANCH OFFICE, VELLAKINAR JUNCTION, ALAPPUZHA, PIN - 688 001.** **BY ADV N.S.NAJEEB** ## **RESPONDENTS/RESPONDENTS 1 & 2:** - **1 RAMACHANDRAN, S/O. KUNJUNNI, PLAMOOTTIL HOUSE, MUHAMMA P.O, KANKUKUZHI GRAMA PANCHAYATH, WARD-10, CHERTHALA TALUK, ALAPPUZHA, PIN- 688 525.** **2 THILAKAN C. S., SIVAGANGA HOUSE, MUHAMMA P.O, KANKUKUZHI GRAMA PANCHAYAT, WARD-10, CHERTHALA THALUK, ALAPPUZHA, PIN - 688 525.** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 06.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.P.No.434/2019 in M.A.C.A.No.2648/2018 -:2:- Dated this the 6[th] day of September,2021 ## **O R D E R** The review petitioner was the appellant in M.A.C.A.No.2648/2018 of this Court. The respondents in the review petition were the respondents 1 & 2 in the appeal. The parties are, for the sake of convenience, referred to as per the status in the review petition. 2. The first respondent had filed O.P. (MV)No.243/2014 before the Motor Accidents Claims Tribunal, Alappuzha, under Section 163A of the Motor Vehicles Act, 1988 _(in short, 'Act')_ claiming compensation on account of the injury that he sustained in an accident on 16.07.2012. It was his case that, on 16.07.2012, while he was riding a motorcycle R.P.No.434/2019 in M.A.C.A.No.2648/2018 -:3:- bearing registration No. KL-32/A-5131 through the Alappuzha-Thanneermukkom road, when he reached a patrol pump at Muhamma, in order to save a cyclist, he applied sudden breaks. He fell to the ground, causing head injuries to him. He was treated at the Community Health Centre, Muhamma, at the Medial College Hospital, Alappuzha and then at the Medical Trust Hospital, Ernakulam. The second respondent was the owner and the review petitioner was the insurer of the motorcycle. The first respondent claimed a compensation of Rs.3,00,000/- from the review petitioner and the second respondent. 3. The second respondent filed a written statement admitting that the motorcycle belonged to him, and that he had given the motorcycle to the first respondent for his use on the eventful day. However, it was contended that the motorcycle had a valid insurance coverage with the review petitioner. R.P.No.434/2019 in M.A.C.A.No.2648/2018 -:4:- 4. The review petitioner/insurer filed a written statement contending that the claim petition was not maintainable because the accident was caused due to the negligence of the first respondent himself. No police case was registered in the matter. Later, on a complaint filed by the first respondent, it was stated that he was a pillion rider on the motorcycle. Nevertheless, during investigation, the police found that the first respondent was the rider of the motorcycle. Therefore, the first respondent had approached the Tribunal with unclean hands. The review petitioner also disputed the age, income and occupation of the first respondent. The review petitioner prayed that the claim petition be dismissed. 5. The Tribunal, after considering the pleadings and materials on record, allowed the claim petition in part, by permitting the first respondent to realise from the review petitioner an amount of Rs.1,64,360/- with R.P.No.434/2019 in M.A.C.A.No.2648/2018 -:5:- interest at the rate of 7% per annum from the date of petition till the date of realisation and proportionate costs. 6. Aggrieved by the impugned award, the review petitioner preferred M.A.C.A. No.2648/2018 before this Court. It was specifically averred that in Ground 'B' of the Memorandum of Appeal that in _**Ningamma & Another v. United India Insurance Co.Ltd.**_ [2009 ACJ 2020] the Hon'ble Supreme Court has categorically held that the liability under Section 163A of the Act _,_ is on the owner of the vehicle. So a person cannot be both, a claimant as also a recipient. It was held that the borrower of a vehicle steps into the shoes of the owner of the vehicle. Hence, a claim under Section 163A of the Act is not maintainable by a borrower of a vehicle in the case of a self accident. 7. This Court, after re-appreciating the pleadings and materials on record and relying on the R.P.No.434/2019 in M.A.C.A.No.2648/2018 -:6:- decision of the Hon'ble Supreme Court in _**United India Insurance Co.Ltd. v. Sunil Kumar and Another**_ [2017 (4) KLT 1093(SC)] , wherein the Hon'ble Supreme Court held that the question of negligence cannot be looked into a claim under Section 163A of the Act, dismissed the appeal by confirming the award passed by the Tribunal. 8. Aggrieved by the dismissal of the appeal, the review petition is filed. 9. Heard; Sri. N.S.Najeeb, the learned counsel appearing for the review petitioner/appellant/insurer and Sri. A.T. Anil Kumar, the learned Counsel appearing for the first respondent/ petitioner. 10. Sri. N.S. Najeeb argued that the review petitioner has specifically pleaded in ground 'B' of the Memorandum of Appeal that the claim petition was not maintainable, in the light of the decision of the Hon'ble Supreme Court in _**Ningamma**_ (supra). The ratio in R.P.No.434/2019 in M.A.C.A.No.2648/2018 -:7:- _**Ningamma**_ (supra) is squarely applicable to the facts and circumstances of the case because, admittedly, the first respondent was the borrower of the motorcycle owned by the second respondent and he met with a self accident. Thus, the first respondent had stepped into the shoes of the second respondent and was not entitled to claim compensation from the insurer under Section 163A of the Act. However, this Court without adverting to the law laid down in _**Ningamma**_ (supra), erroneously followed the ratio in _**Sunil Kumar**_ (supra) and confirmed the award passed by the Tribunal. According to Sri.N.S. Najeeb, there was an error apparent on the face of the judgment because this Court has failed to follow the ratio in _**Ningamma**_ (supra) which it is obliged to do in view of Article 141 of the Constitution of India. Hence, the review petition may be allowed. 11. Sri. A.T. Anil Kumar vehemently opposed the R.P.No.434/2019 in M.A.C.A.No.2648/2018 -:8:- contentions of Sri. N.S. Najeeb, by contending that the remedy of the review petitioner is to move the Hon'ble Supreme Court in appeal instead of filing a review petition before this Court. He relied on the decisions of the Hon'ble Supreme Court in _**Meera Bhanja(Smt.) v. Nirmala Kumari Choudhury (Smt.)**_ [(1995) 1 SCC 170] and the decision of this Court in _**Mohammedkutty v. Mammukutty**_ [1996 (2) KLT 342] to canvas the position that review petition cannot be equated with an appeal. An omission on the part of the court to consider an earlier decision, either by mistake or inadvertence, is not a ground to review its own judgment. Hence, the review petition may be dismissed. 12. The specific case of the review petitioner before the Tribunal was that, as the first respondent had borrowed the motorcycle from the second respondent – the owner of the motorcycle, the review R.P.No.434/2019 in M.A.C.A.No.2648/2018 -:9:- petitioner was not liable to pay compensation, as it was a self accident, which does not fall within the purview of the provisions of the Act and the conditions of the insurance policy. Nevertheless, the Tribunal allowed the claim petition by passing the impugned award. 13. In appeal, the review petitioner had pleaded in Ground 'B' of the Memorandum of Appeal that the claim petition was not sustainable in view of the law laid down in _**Ningamma**_ (supra), that the borrower of a vehicle steps into the shoes of the owner and, if it is a self accident, the insurer is not liable to pay compensation as held by the Hon'ble Supreme Court in _**Oriental Insurance Co.Ltd. v. Rajni Devi**_ [(2008) 5 SCC 736]. 14. Unfortunately, this Court had not adverted to Ground 'B' while considering the appeal. Instead this Court based on the ratio in _**Sunil Kumar**_ (supra) went R.P.No.434/2019 in M.A.C.A.No.2648/2018 -:10:- on to hold that, as there is no need to establish negligence in a claim under Section 163A of the Act. Therefore, the review petitioner is liable to indemnify the second respondent of his liability to pay compensation to the first respondent. 15. The law declared by the Hon'ble Supreme Court is binding on all courts within the territory of India as enshrined under Article 141 of the Constitution of India. 16. _**Ningamma**_ (supra) categorically lays down the law that the borrower of a vehicle steps into the shoes of the owner and, therefore, if he meets with a self accident, he is not entitled for compensation under Section 163A of the Act. This aspect has not been considered by this Court, while passing the impugned judgment, which according to me is an error apparent on the face of the record which warrants the setting aside of the impugned judgment. The decisions R.P.No.434/2019 in M.A.C.A.No.2648/2018 -:11:- that have been relied on by the learned counsel appearing for the first respondent are on the point that the court should not conduct a re-appreciation of the evidence and materials on record, while considering a review petition. The above decisions are irrelevant and inapplicable to the facts of the present case. Hence, I hold that the review petition is only to be allowed, as the matter needs reconsideration, particularly due to non-consideration of ground 'B' in the Memorandum of Appeal. If the argument of the learned counsel for the first respondent is to be accepted, it would render Article 141 of the Constitution of India a dead letter. In the result, the review petition is allowed, by setting the impugned judgment passed by this Court on 26.11.2018 in M.A.C.A.No.2648/2018. The interim order dated 03.12.2020 in the review petition will continue to remain in force till the disposal of the appeal . The Registry shall forthwith recall the Lower R.P.No.434/2019 in M.A.C.A.No.2648/2018 -:12:- Court Records (LCR) from the Tribunal and post the appeal for disposal, immediately on receipt of the LCR. Sd/- ## **C.S.DIAS,JUDGE** DST //True copy/ P.A.To Judge