National Insurance Company Ltd. v. Deepa Joji and Others (MFA No. 97 of 2003)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR FRIDAY, THE 1ST FEBRUARY 2008 / 12TH MAGHA 1929 MFA.No. 97 of 2003(B) --------------------OPMV.576/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT: 2ND RESPONDENT ------------- NATIONAL INSURANCE COMPANY LTD., KOTTAYAM. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENTS: PETITIONERS & R-1 ------------------------------ 1. DEEPA JOJI, CHOLLACKAL HOUSE, VELLAPPADU POST, PALA. 2. ALVIN JOJI (MINOR) -DO- REP. BY THE FIRST RESPONDENT 3. C.V.JOSEPH, CHOLLACKAL HOUSE, VALLICHIRA POST, PALA. BY ADV. SRI.LIJI.J.VADAKEDOM THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 01/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.PADMANABHAN NAIR, J.** ------------------------------- M.F.A.No.97 of 2003 ------------------------------- Dated this the 1[st] February, 2008. ## **J U D G M E N T** The 2[nd] respondent, Insurer, in O.P.(M.V) No.576/1999, on the file of the Motor Accidents Claims Tribunal, Pala, is the appellant. The appeal is filed against an interim award passed in the Original Petition, by which, the Tribunal had allowed the legal representatives of the deceased Joji, who died in a motor vehicle accident, an amount of Rs.50,000/= as compensation, under Section 140 of the Motor Vehicles Act. 2. The short facts necessary for the disposal of the appeal are as follows. Deceased Joji was driving a maruti car bearing Registration No.KL 5A 6693, at about 1 p.m. on 23.1.1999. It met with an accident and Joji died in the accident. His widow and minor child filed the Original Petition claiming an amount of Rs.96,200/= as compensation. In the Original Petition, there was no averment as to how the accident took place. In column-18, it was admitted by the petitioners that the deceased was driving the vehicle. Appellant, Insurer, entered appearance and filed a written statement, denying its **M.F.A.No.97/2003** 2 liability. It was contended that the deceased was the son of the owner of the vehicle, and the accident occurred due to his negligence. It was also contended that the vehicle was covered with an Act only policy. It was further contended that since the accident occurred solely due to the negligence of the deceased himself, respondents-petitioners are not entitled to get any amount as compensation. In the Original Petition, claimants/respondents filed I.A.No.1625/99 for passing an interim award under Section 140 of the Motor Vehicles Act. The appellant filed objection contending that the deceased was the son of the owner and the vehicle was covered with an Act only policy, and as such, the respondents are not entitled to get any compensation. The Tribunal took a view that since the claim is under Section 140 of the Motor Vehicles Act, even if the accident occurred due to the negligence of the deceased, his legal representatives are entitled to get a compensation of Rs.50,000/= under Section 14 of the Motor Vehicles Act, and passed an interim award to that effect. Challenging that decision, Insurer has filed this appeal. 3. The learned counsel appearing for the appellant has argued that in this case, the Insurer had absolutely no liability to indemnify the insured. The counsel for the appellant has relied on the **M.F.A.No.97/2003** 3 decisions reported in **G.Appala Narasimha Raju v. National Insurance Co. Ltd.** _(II (2007) ACC 880 (SC);_ **New India Assurance Co. Ltd. v. Meera Bai** _(III (2007) ACC 665 (SC)_ ; **Oriental Insurance Company Limited v. Meena Variyal** _(IV (2007) ACC 335 (SC)_ ; and **Yallwwa v. National Insurance Co. Ltd.** _(III (2007) ACC 269 (SC)_ . 4. The learned counsel appearing for the respondents relying on decision reported in **The New India Assurance Co. Ltd. v. Parameswaran and Others** _(ILR 2005 (4) Kerala 104),_ has argued that in a claim under Section 140 of the Motor Vehicles Act, the liability is absolute, when the death or permanent disablement takes place, and it is not necessary to prove the negligence at all. 5. There cannot be any doubt regarding the principle laid down in Parameswaran's case supra. Since, this is a petition filed under Section 140 of the Motor Vehicles Act, it is not at all necessary to plead and prove the negligence on the part of the deceased. In fact, in the petition itself, it was admitted that the deceased himself was driving the vehicle. It is also submitted by the counsel for the appellant that after passing of the interim award, the main petition was **M.F.A.No.97/2003** 4 dismissed as not pressed. So, the only question arising for consideration is whether the Insurer can be made liable in this particular case. 6. In G.Appala Narasimha Raju's case supra, the question arose for consideration was whether the scope and ambit of provisions of the Motor Vehicles Act,1988 can be extended to the provisions of the Workmen's Compensation Act, 1923. The Apex Court, after considering the relevant provisions, found that it is not possible to extend the scope and ambit of provisions of 1988 Act to the provisions of 1923 Act. In fact, that was a case which arose under the provisions of the Workmen's Compensation Act. The short facts are as follows. A tractor bearing Registration No.AP 37P 3717 belonged to Smt.Gottumukkala Venkata Lakshmi and covered by a policy of insurance issued by National Insurance Company met with an accident. One Bangaru Raju who was driving the Tractor died. He was the husband of the owner of the vehicle. Compensation was claimed alleging that the relationship between the owner and her husband was stained, and he was residing else where. It was also contended that her husband was employed by brother of the owner as a driver of the Tractor. The question arose as to whether he can be **M.F.A.No.97/2003** 5 considered as a workmen of his wife. The Apex Court found that technically it may be possible that husband may be employed under the wife, and found that while deciding a petition under Section 22 of the Workmen's Compensation Act, the court shall not apply the provisions of 1988 Act. 7. In Yallwwa's case (supra) , the Apex Court has held that while considering a petition under Section 140 of Motor Vehicles Act, the Tribunal shall consider the objections raised by the Insurer before taking a decision. 8. In Meena Variyal's case (supra), the Apex Court considered the liability of the Insurer in the case of a death of an employee. In that case, the widow of one Suresh Chandra Variyal has filed a petition claiming compensation impleading the owner, a company incorporated under the provisions of the Companies Act, as well as the Insurer of the vehicle. The deceased was working as a Regional Manager of the employer company. The vehicle met with an accident and Suresh Chandra Variyal died. In the Original Petition, there was no averment as to who was driving the vehicle. The Insurer contended that driver of the vehicle was one Mahmood Hasan, and the **M.F.A.No.97/2003** 6 accident occurred due to his negligence, but he was not impleaded. the Tribunal and the High Court found that the vehicle was driven by the deceased himself. However, the Apex Court found that since the accident occurred due to the negligence of the deceased himself and his legal representatives were not entitled to get any compensation. The principle laid down by the Apex Court shows that compulsory insurance is necessary in respect of the risk covering third party, and that is limited to that Section, in view of the provisions contained under Section 145 of the Motor Vehicles Act. 9. If the policy does not cover the risk of an employee or a gratuitous passenger travelling in a private vehicle, he is not entitled to claim compensation from the Insurer. In this case, the policy issued was an Act only policy, which does not cover the risk of any other person, other than the third party or paid driver. The deceased was the son of the Original owner. There is absolutely nothing on record to show that he was actually working as an employee of his father. In the absence of pleadings and proof, it is not possible to make the company liable for the amount. **M.F.A.No.97/2003** 7 In the result, the appeal is allowed. Appellant-Insurer is exonerated from the liability. It is seen that the appellant had deposited an amount of Rs.25,000/= in pursuance of the interim order passed by this Court. Respondents-claimants filed a petition for withdrawing the same, which was allowed and a cheque for Rs.25,000/= was also issued. In view of the peculiar facts and circumstances, I direct that the appellant-Insurer shall not recover this amount from the respondents-claimants. ## **K.PADMANABHAN NAIR, JUDGE** ## **nj.** ## **K.PADMANABHAN NAIR, J.** ------------------------------- M.F.A.No.97 of 2003 ## **J U D G M E N T** Dated:1[st] February, 2008. -------------------------------