National Insurance Company Limited v. V.K. Suresh and K.V. Shaijala, MACA No. 1429 of 2012

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 24[TH] DAY OF NOVEMBER 2021 / 3RD AGRAHAYANA,** **1943** **MACA NO. 1429 OF 2012** **AGAINST THE AWARD IN O.P(M.V) 1279/2004 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/2ND RESPONDENT:** NATIONAL INSURANCE COMPANY LIMITED, THRISSUR, 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 ## **RESPONDENT/PETITIONER AND 1ST RESPONDENT:** 1 V.K.SURESH, S/O.KRISHNANKUTTY, C/O.K.P.VASU, KANJIRATHAINKAL HOUSE, KARIATTUKARA, ELTHURUTH P.O., THRISSUR DISTRICT, PIN-680320. 2 K.V.SHAIJALA, D/O.VASU, 116, KANJIRATHINKAL HOUSE, KARIATTUKARA, ELTHURUTH P.O., THRISSUR DISTRICT, PIN-680320. BY ADV SRI.P.V.CHANDRA MOHAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A No.1429 of 2012** 2 ## **'CR'** ## **J UDGMENT** This appeal emanates from award in O.P. (M.V) No.1279/2004 dated 30.01.2012 on the file of the Motor Accidents Claims Tribunal, Thrissur. 2. The appellant herein is the 2[nd] respondent before the Tribunal, the insurer. The respondents herein are the petitioner as well as the 1[st] respondent before the Tribunal. 3. One V.K.Suresh, who alleged to have sustained injuries in consequence of a motor accident occurred on 24.08.2003 at 11:40 p.m., while he was riding KL-8/X-6452 motor bike through Chiyyaram to Alumvettuvazhi road, approached the Tribunal and filed petition under Section 163A claiming compensation under the principles of no fault. According to him, while he was riding, an unidentified car hit against the motor bike and in consequence ## **M.A.C.A No.1429 of 2012** **==> picture [7 x 9] intentionally omitted <==** thereof, he sustained injuries. A claim of Rs.9,45,500/- was raised before the Tribunal. 4. The 1[st] respondent was declared ex-parte by the Tribunal. 5. The appellant, Insurance Company, filed written statement disputing the liability on the ground that the petitioner could not avail the benefit under Section 163A or 140 of the Motor Vehicles Act. Apart from that the quantum of compensation was disputed while admitting policy to cover the risk of 3[rd] parties, issued in the name of the insured. The Tribunal adjudicated the matter along with the connected O.P.(M.V) No.1329/2004 and finally granted award for Rs.1,32,000/- in favour of V.K.Suresh with interest thereof with direction to the appellant to pay the same. 6. The Insurance Company, the appellant herein, disputes the liability on the submission that the 1[st] respondent, the original ## **M.A.C.A No.1429 of 2012** 4 petitioner who had ridden the motor cycle at the time of accident with the permission of the owner stepped into the shoes of the owner and thereby his status is that not of a '3[rd] party'. As such the Insurance Company has no liability to pay compensation under Section 147 of the Motor Vehicles Act to the original petitioner. It is submitted by the learned counsel for the appellant further that as early in the year 2009, the Honourable Apex Court considered this issue in the decision reported in _**Ningamma & Another v. United India Insurance Co. Ltd.**_ **:** **(2009) 13 SCC 710** and it was held that when 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, they would step into the shoes of the owner and thereby they could not be categorised as third parties. It is submitted further by the learned counsel for **M.A.C.A No.1429 of 2012** 5 the appellant that the ratio in _**Ningamma's**_ case (supra) has been followed by this Court in the decisions reported in _**Sasikala v. Aji Kumar**_ **: 2019 (4) KLT 117** and _**Jiljet v. Stamphen George**_ **: 2019 (1) KLT 546.** 7. Refuting this contention, the learned counsel for the 1[st] respondent, the original petitioner, submitted that no specific contention raised in the written statement categorising the 1[st] respondent as a person, who stepped into the shoes of the owner and as a person, who ridden the vehicle after borrowing the same from the owner. Therefore, the contention raised by the Insurance Company lacks support of pleadings and, therefore, the said contention cannot be appreciated. It is submitted by the learned counsel further that in the decision reported in _**National Insurance Company Limited v. Sinitha**_ **: 2011 (4) KLT 821 (SC),** the Apex Court held that it is the duty ## **M.A.C.A No.1429 of 2012** 6 of the Insurance Company to prove the relationship between the claimant and the owner of the motor cycle involved in the accident and the said aspect not established in this case and, therefore, the contention as canvassed by the learned counsel for the appellant cannnot be countenanced. It is fairly conceded by the learned counsel further that though _**Sinitha's**_ case (supra), was overruled by a larger bench of the Apex Court to hold that the Company cannot defeat claim under Section 163A by pleading and establishing negligence on the part of the petitioner, this position was not interferred. 8. While appreciating the rival contentions, it is necessary to look into the petition averments. In column no.28, it was specifically asserted by the petitioner/1[st] respondent that he was dashed down by a motor cycle driven from the opposite direction, while **M.A.C.A No.1429 of 2012** 7 he was riding the motor cycle. In paragraph no.3, it is specifically pleaded that “at the time of accident the Motor Cycle was insured with the second respondent and it was driven by the petitioner himself with the permission of first respondent who is the owner of the Motor Cycle.” Though the learned counsel for the original petitioner/1[st] respondent attempted to carve out a difference by explaining the term 'permission' on the submission that the word permission could not be interpreted to understand that the petitioner/1[st] respondent had borrowed the vehicle from the owner. This submission appears to be not convincing since the word permission itself would indicate that the owner permitted the petitioner/1[st] respondent to ride the vehicle and the subsequent action is nothing but borrowing of the motorcycle by the petitioner from the owner for riding the same. ## **M.A.C.A No.1429 of 2012** **==> picture [7 x 9] intentionally omitted <==** 9. That apart, in the decision in _**Sasikala’s**_ case (supra) in paragraphs 8 and 9, this Court has observed specifically that one cannot be both the person entitled to claim compensation and obliged to give compensation in respect of one and same act as recognised by the Apex Court in _**Ningamma’s**_ case (supra). The relevant portion of paragraph no.8 of _**Sasikala’s**_ case (supra) is extracted here under: _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._ _xxxxxxxx_ _Coming to the issue relating to the burden to prove the relationship_ **M.A.C.A No.1429 of 2012** 9 _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._ 10. In a recent decision of the Honourable Supreme Court reported in _**Ramkhiladi v. United**_ **M.A.C.A No.1429 of 2012** 10 _**India Insurance Company**_ **: AIR 2020 SC 527,** the liability of the Insurance Company under Section 163A was considered in the context of _**Ningamma's**_ case (supra) and in paragraph 5.6 of the judgment, the Honourable Supreme Court observed as under: _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 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._ 11. In the instant case, in the written ## **M.A.C.A No.1429 of 2012** 11 statement filed by the Insurance Company/ appellant liability to pay compensation was disputed though in so many words, it is not pleaded that the original petitioner stepped into the shoes of the owner as he had borrowed the motorcycle from the owner. However, the admitted case in the original petition as extracted above would go to show that the petitioner had ridden the motorcycle with permission of the owner. Following the ratio in _**Ningamma's**_ case (supra) and _**Sasikala's**_ case (supra) when the vehicle is used by a person authorised to do so by the owner, either expressly or impliedly, the said person would step into the shoes of the owner except in cases when the users are paid employees of the owner. When the original petitioner in this case admitted such a permission it has been expressly established that the original petitioner's status is that of a person stepped ## **M.A.C.A No.1429 of 2012** **==> picture [13 x 9] intentionally omitted <==** into the shoes of the owner and not that of a third party. In view of the settled legal proposition as aforesaid, I have no hesitation to hold that the Insurance Company has no liability to indemnify the insured in a claim under Section 163A where the driver/rider stepped into the shoes of owner/insured and his status is not that of a 'third party'. Thus the contention raised by the learned counsel for the original petitioner can only be dispelled. 12. In view of the matter, the award passed by the Tribunal fastening liability upon the Insurance Company, the appellant/2[nd] respondent, cannot sustained, as such the same is liable to be set aside. 13. In the result, the appeal is allowed. The award is set aside insofar as the same, fastened liability upon the 2[nd] respondent, Insurance Company is concerned. It is held that the 2[nd] respondent, Insurance Company, has no ## **M.A.C.A No.1429 of 2012** **==> picture [13 x 9] intentionally omitted <==** liability to pay compensation to the petitioner /1[st] respondent, who stepped into the shoes of the owner and his status is not that of a 3[rd] party. Regarding the quantum of compensation, I am not inclined to address the same since the said aspect is not pressed into by the learned counsel for the appellant. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww