New India Assurance Co. Ltd v. A.T. Rapheal and Raju A.T., MACA.No.3872 OF 2016(D)

1 MACA.No.3872 OF 2016 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 04TH DAY OF NOVEMBER 2020 / 13TH KARTHIKA, 1942** ## **MACA.No.3872 OF 2016(D)** **AGAINST THE AWARD IN OPMV 365/2005 DATED 03-02-2015 ON THE FILE OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL , TRISSUR** ## **APPELLANT/S:** **THE NEW INDIA ASSURANCE CO. LTD KUNNAMKULAM, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, MG. ROAD, ERNAKULAM** **BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI** ## **RESPONDENT/S:** **1 A.T.RAPHEAL S/O.THOMAS, ANTHIKKAT HOUSE, PULIYANNOOR, P.O.VELLANTTANJOOR, THRISSUR DISTRICT 2 RAJU A.T S/O.THOMAS, ANTHIKKAT HOUSE, P.O.VELLANTHANJOOR, THRISSUR DISTRICT** **BY ADV. SRI.P.V.CHANDRA MOHAN** **THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 4-11-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA.No.3872 OF 2016 ## **C.S.DIAS, J. ====================== M.A.C.A No.3872 of 2016 ====================== Dated this the 4[th] day of November, 2020.** ## **JUDGMENT** The second respondent – the Insurance Company - in OP(MV) No.365/2005 on the file of the Motor Accidents Claims Tribunal, Thrissur is the appellant. The first respondent in the appeal was the claimant and the second respondent - the owner of the vehicle - was the first respondent in the claim petition. The parties are, for the sake of convenience, referred to as per their litigate status in the claim petition. 2. The petitioner had filed the claim petition under Sec.163A of the Motor Vehicles Act, 1988, claiming compensation on account of injuries that he sustained on 4.12.2003, while he was riding the motorcycle bearing registration No.KL-8/L 7967. 3. It was the case of the petitioner that, on 4.12.2003, while he was riding the motorcycle, the 3 MACA.No.3872 OF 2016 motorcycle swerved and it overturned. The petitioner sustained injuries. He was treated at the Amala Hospital, Thrissur as an inpatient. Accordingly, he claimed an amount of Rs.1,58,000/- as compensation with 18% interest. 4. The first respondent was set exparte. 5. The second respondent filed a written statement and an additional written statement, inter alia, contending that a mere existence of a valid policy does not ipso facto attach any liability with the respondent to pay compensation. The policy issued by the respondent does not cover the risk of the rider or pillion rider of the motorcycle. The respondent had not collected any premium so as to cover the risk of rider or pillion rider. The policy is only a 'Liability Only' policy, which covers only third party damage. Therefore, the respondent may be exonerated from the liability to indemnify the insured, even if the petitioner is found entitled for the compensation. Hence, the claim petition may be dismissed. 6. The Doctor who treated the petitioner was examined as PW1. Exts A1 to A7 were marked on the side of 4 MACA.No.3872 OF 2016 the petitioner. Ext B1 insurance policy certificate was marked on the side of the second respondent. 7. The Tribunal, after considering the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by holding that the petitioner is entitled to compensation and that the second respondent is liable to indemnify the first respondent. Therefore, the second respondent was held liable to pay an amount of Rs.1,06,400/- with interest at the rate of 9% per annum, from the date of the claim petition till the date of realization with proportionate costs. 8. It is assailing the impugned award that the second respondent has filed this appeal. 9. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the first respondent. 10. The learned counsel appearing for the appellant argued that the 'lis' in the appeal is squarely covered by the decision of this Court in **Jiljet v. Stamphen George [2019** **(1) KLT 546],** wherein this Court while deciding an 5 MACA.No.3872 OF 2016 identical issue held that a rider of the motorcycle is never a third party, even if the claim is filed under Sec.163A of the Motor Vehicles Act. She also relied on the decisions of the Hon'ble Supreme Court in **Ningamma and another v. United India Insurance Co.Ltd [AIR 2009 SC 3056]** and **United India Insurance Co.Ltd v. Sunil Kumar and another [2017 (4) KLT 1093(SC)],** to fortify her contentions. According to her, in view of the explicit terms in Ext B1 policy, there is no doubt that Ext B1 is a “Liability Only” policy and that the Insurance Company had not received any additional premium to cover any accident involving the owner/ driver of the vehicle. Hence, the award passed by the Tribunal is erroneous and unsustainable in law and is liable to be set aside. 11. The learned counsel appearing for the first respondent, on the other hand, contended that this Court in **Jiljet** (supra) has not considered the ratio in **National Insurance Company vs. Sinitha [2011 (4) KLT 821(SC)].** He also relied on the decision of the Hon'ble Supreme Court in **Ramkhiladi and another v. United** 6 MACA.No.3872 OF 2016 ## **India Insurance Company Ltd and others [2020 ACJ** **627]** and contended that the rider of the vehicle would step into the shoes of the owner, as provided under Sec.163 A of the Act. He contended that Ext B1 policy shows that the owner of the vehicle has paid additional premium so as to cover personal accidents. Hence, the Tribunal has rightly arrived at the conclusion that the appellant is liable to pay compensation to the first respondent. 12. The sole question that emerges for consideration in this appeal is whether the appellant is liable to indemnify the insured, and consequentially pay the compensation to the first respondent for the injuries sustained in the accident. 13. This Court while considering a case of identical nature in **Jiljet** (supra), held as follows:- “11. Obviously, the heading of 'Section II' itself says that it is in respect of the 'liability to 3[rd] parties'. As held by the Apex Court in Ningamma's case (cited supra) and also by the Full Bench of this Court in Oriental Insurance Co. Ltd v. Joseph V.V @ Johny and others [2012 (2) KLT 132 (FB) = 2012 (2) KHC 1], **the insured is not 3[rd] party and rider of the motor cycle will step into the shoes of the insured. This position stands in** 7 MACA.No.3872 OF 2016 **tact. The liability undertaken by the insurer is to 'indemnify the insured', to meet the claim because of the accident which the insured shall become legally liable to pay in respect of the cause involving death or bodily injury to a person including the person conveyed in or on the motor cycle, provided that such person is not carried for hire or reward, or in respect of the property; to the extent as specified therein.** The accident on riding a motorcycle by the owner/insured was declared as not an instance to be covered by the insurer, by the Apex Court, in New India Assurance Company v. Sadanand Mukhi [2009 (2) KLT SN 21 (C No.25) SC = (2009) 2 SCC 417]. The purpose and object of the statue and the scope of contractual insurance were explained in categoric terms, holding that when the owner of the vehicle is proposed to be covered, additional premium is required to be paid. **There is no legal liability for the insured, to satisfy any claim to himself and as such, the term, 'any person' mentioned under the clause extracted above does not take in the insured or rider of the motor cycle, who has stepped into the shoes of the insured –** as held by the Apex Court in Ningamma's case (cited supra) 14. It was the specific case of the appellant in the additional written statement, that Ext B1 policy does not cover the risk of rider or pillion rider of the motorcycle; that the appellant had not collected any premium so as to cover the risk of rider or pillion rider and that the policy is only a “Liability Only” policy, which covers only third party 8 MACA.No.3872 OF 2016 damage. 15. On a perusal of Ext B1 policy, it is explicitly mentioned on the first page, that it is a “Liability Only” policy. Even assuming that owner has paid additional premium, to cover personal accident, it is seen on the second page of Ext B1, that the language used is 'compulsory p.a to owner cum driver'. 16. The meaning of the word “cum” in Oxford Advanced Learner's Dictionary is “as well as” i.e., to link two nouns and the words have to used conjunctively. Hence, the words 'owner cum driver' can only mean owner who is the driver, and not owner or driver, as argued by the learned counsel for the first respondent. This legal position is no longer res-integra in view of a Division Bench of this Court in **Khadeeja and others v. Rushdi and another [2016 (3) KLT 400]** . 17. The specific case of the first respondent in the claim petition was that he had ridden the motorcycle with the permission of the first respondent, the owner of the vehicle. Thus, even assuming that the owner had paid 9 MACA.No.3872 OF 2016 additional premium to cover personal accident, according to me, only if the owner was the driver of the vehicle, he would be entitled to be indemnified. Admittedly, the first respondent has pleaded that he was self-employed and doing “chicken business”. 18. On a perusal of the impugned award, it is seen that the Tribunal has relied on the decision of **Sinitha** (supra) and held that as the appellant has not adduced any evidence, to defeat the claim raised under Sec.163A of the Act i.e., by pleading and establishing one of the three grounds namely, wrongful act, neglect or default. 19. I am afraid that the Tribunal has gone wrong because we do not have a case of wrongful act, neglect or default, but a case where the Insurance Company has specifically contended that it is not liable to indemnify the insured in view of the unambiguous terms and conditions in Ext B1 policy, which is only a 'Liability Only' policy. Therefore, the Insurance Company cannot be saddled with the liability to indemnify the insured and consequentially pay compensation to the first respondent, as enunciated by 10 MACA.No.3872 OF 2016 this Court in **Jiljet** (supra), which was rendered relying on the decision in **Ningamma's** case (supra) and subsequently in **Sunil Kumar's** case(supra). 20. Therefore, I am of the definite opinion that the Tribunal has gone wrong in holding that the appellant is liable to pay compensation to the first respondent. 21. In the result, I allow the appeal by setting aside the impugned award passed by the Tribunal and dismiss OP (MV) No.365/2005 as against the appellant. ## **Sd/-** **C.S.DIAS** SKS/4.11.2020 **JUDGE**