New India Assurance Co Ltd v Nelson Rajan & Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 16[TH] DAY OF NOVEMBER 2023/25TH KARTHIKA, 1945 ``` ``` MACA NO. 1845 OF 2012 ``` ``` AGAINST THE AWARD DATED 31.05.2012 IN OP(MV) 58/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR ``` ## **`APPELLANT/2ND RESPONDENT:`** ``` NEW INDIA ASSURANCE CO LTD SM SHOPPING COMPLEX, ALUVA ROAD, ANGAMALY - 683 572, ERNAKULAM DISTRICT, REP BY THE DY.MANAGER, REGIONAL OFFICE, KOCHI. BY ADV SRI.RAJAN P.KALIYATH ``` ## **`RESPONDENTS/CLAIMANTS 1 TO 3 AND R1:`** ``` 1NELSON RAJAN AGED 50 YEARS S/O.KUTTAN, ARAMANAPARAMBIL HOUSE, KEDAMANGALAM, N.PARAVUR P.O., ERNAKULAM, PIN 683513 2ELIZABETH K.P. AGED 46 YEARS W/O.NELSON RAJAN, -DO-. 3RAJESH KUMAR A.N. AGED 23 YEARS S/O.NELSON RAJAN, -DO-. 4SHOY JOSE S/O.JOSE, POTTAKKAL HOUSE, NEELESWARAM POST, KOTTAMAN, ERNAKULAM DISTRICT, PIN 683581 BY ADVS. SRI.G.BALAMURALEEDHARAN SRI.WILSON URMESE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. No.1845/2012 : 2 : ## JUDGMENT This appeal is submitted by the 2[nd] respondent in OP(MV) No.58/2007 on the files of the Motor Accident Claims Tribunal, North Paravur. The said claim petition was submitted by respondents 1 to 3 seeking compensation for the death of one Anil Kumar, who died due to the injuries sustained in a motor accident that occurred on 27.09.2004. The claim petition was submitted under Section 163A of the Motor Vehicles Act. 2. According to respondents 1 to 3, the accident occurred when the motorcycle ridden by the deceased hit a tree, and as a result, he was thrown to the road, sustaining serious injuries which ultimately led to his death. According to the claimants, the deceased was working as a sales representative with a monthly income of Rs.3,000/-. The claim petition was submitted in such circumstances. 3. The 2[nd] respondent insurance company alone contested the matter by filing a written statement wherein they admitted the coverage of the policy but disputed the liability on various grounds. It was contended that the accident was caused M.A.C.A. No.1845/2012 : 3 : due to the negligence of the deceased; hence, no compensation can be allowed. Therefore, they sought dismissal of the application. 4. The evidence in this case consists of the oral evidence of PW1 and Exts.A1 and A2 from the side of the claimants. From the side of the respondents, Exts.B1 and B1(a) were marked. 5. After the trial, the tribunal allowed the claim petition by passing an award permitting the claimants to recover an amount of Rs.4,12,500/- as compensation from the 2[nd] respondent insurance company along with interest at the rate of 7.5% per annum from the date of petition till realisation with costs of Rs.10,000/-. This appeal is submitted by the 2[nd] respondent/ insurer challenging the aforesaid award. 6. Heard Sri. Rajan P Kaliyath, the learned counsel appearing for the appellant, Sri. G. Balamuraleedharan, the learned counsel appearing for respondents 1 to 3 and Sri. Wilson Urmese, the learned counsel appearing for the 4[th] respondent. 7. The main contest in this case is relating to the maintainability of the application under Section 163A of the Motor M.A.C.A. No.1845/2012 : 4 : Vehicles Act. According to the learned counsel for the appellant, the tribunal could not have entertained the application in view of the fact that the deceased himself was riding the motorcycle owned by the 1[st] respondent. Therefore, he steps into the shoes of the owner, and therefore, he cannot claim compensation. To support the said contention, the learned counsel also places reliance upon the decision rendered by the Hon’ble Supreme Court in Ningamma & Anr vs United India Insurance Co.Ltd [ 2009 13 SCC 710] and Ramkhiladi v. United India Insurance Co. Ltd. [AIR (2020) SC 14]. 8. The learned counsel appearing for respondents 1 to 3, on the other hand, would oppose the aforesaid contention by highlighting that the 2[nd] claimant has filed a proof affidavit to the effect that, at the relevant time, the deceased was entrusted with the possession of the said vehicle by the registered owner to hand over a cheque issued by the registered owner to another person. Therefore, he was a permitted user of the said vehicle, and therefore, the observations made by the Hon’ble Supreme Court in Ningamma ’s case cannot be made applicable. According to him, Ningamma ’s case is applicable in a case where M.A.C.A. No.1845/2012 : 5 : the accident victim had borrowed the said vehicle from the registered owner. However, as the facts of this case are different, the principles laid down therein are not applicable, contends the learned counsel for the appellant. 9. I have carefully gone through the records and heard the contentions raised by both sides. The position of law with regard to the maintainability of an application under Section 163A of the Motor Vehicles Act at the instance of a person who was driving the motor vehicle, based on the permission of the owner, was specifically considered by the Hon’ble Supreme Court Ningamma ’s case. Paragraphs 18,19,20 and 21 of Ningamma ’s case reads as follows: 18.However, in the facts of the present case, it was forcefully argued by the counsel appearing for the respondent that the claimants are not the “third party”, and therefore, they are not entitled to claim any benefit under Section 163-A of the MVA. In support of the said contention, the counsel relied on the decision of this Court in Oriental Insurance Co. Ltd.v.Rajni Devi [(2008) 5 SCC 736 : (2008) 3 SCC (Cri) 67] and New India Assurance Co. Ltd. v. Sadanand Mukhi [(2009) 2 SCC 417 : (2009) 1 SCC (Cri) 815] . 19. In Oriental Insurance Co. Ltd. v. Rajni Devi [(2008) 5 SCC 736 : (2008) 3 SCC (Cri) 67] wherein one of us, namely, Hon'ble S.B. Sinha, J. was a party, it has been categorically held that in a case where third party is involved, the liability of the insurance company would M.A.C.A. No.1845/2012 : 6 : be unlimited. It was also held in the said decision that where, however, compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the claimant against the insurance company would depend upon the terms thereof. 20. It was held in Oriental Insurance Co. Ltd. Case [(2008) 5 SCC 736 : (2008) 3 SCC (Cri) 67] that Section 163-A of the MVA cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved. The decision further held that the question is no longer res integra. The liability under Section 163-A of the MVA is on the owner of the vehicle. So a person cannot be both, a claimant as also a recipient, with respect to claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163-A of the MVA. 21. In our considered opinion, the ratio of the decision I Oriental Insurance Co. Ltd. Case [(2008) 5 SCC 736 : (2008) 3 SCC (Cri) 67] is clearly applicable to the facts of the present case. In the present case, the deceased was not the owner of the motorbike in question. He borrowed the said motorbike from its real owner. The deceased cannot be held to be an employee of the owner of the motorbike although he was authorised to drive the said vehicle by its owner and, therefore, he would step into the shoes of the owner of the motorbike. We have already extracted Section 163-A of the MVA hereinbefore. A bare perusal of the said provision would make it explicitly clear that persons like the deceased in the present case would step into the shoes of the owner of the vehicle. 10. Of course, it is true that in the aforesaid observations, the Hon’ble Supreme Court considered the case of a person who M.A.C.A. No.1845/2012 : 7 : borrowed the motorcycle from the registered owner of the said vehicle, and it was held that in such circumstances, he steps into the shoes of the owner. However, on carefully going through observations made by the Hon’ble Supreme Court in the said decision, it can be seen that the principle that was discussed therein related to the maintainability of an application under Section 163A of the Motor Vehicles Act at the instance of a person who does not fall within the category of a third party. While understanding the meaning of the third party, the same has to be understood in terms of Section 147 of the Motor Vehicles Act. Therefore, unless the person who claims the compensation or on whose death the claim petition was submitted falls within the category of the persons referred to under Section 147 of the Motor Vehicles Act, he cannot be treated as a third party for the purpose of proceedings under the provisions of the Motor Vehicles Act, whether it is under Section 163A or 166 of the Motor Vehicles Act. This is particularly because the concept based on which the Hon’ble Supreme Court laid down the aforesaid principle was that a person cannot claim compensation from himself. Here, when the deceased was driving the said vehicle, M.A.C.A. No.1845/2012 : 8 : with the permission of the borrower, he stepped into the shoes of the registered owner, and therefore, practically, he will be claiming compensation from himself. The said question is not confined to the use of the said vehicle by a person after borrowing the vehicle from the registered owner, but it is to be applied in all the cases where the person concerned was driving the vehicle with the consent of the owner of the said vehicle. 11. However, when a person was driving the vehicle, with the consent of the owner, on the strength of employment under the registered owner, the position would be different. In this case, the learned counsel for the appellant submits that, the accident occurred when the deceased was riding the motorcycle, for fulfillment of a task entrusted by the registered owner. There is no case for them that he was undertaking the said task for remuneration. No employer-employee relationship between the deceased and the registered owner, was also claimed in the petition. Therefore, the contention raised by the claimant cannot be accepted. 12. The view taken by this Court is fortified by the observations made by the Hon'ble Supreme Court in Ramkhiladi’s M.A.C.A. No.1845/2012 : 9 : case (cited supra). The observations made by the Supreme Court in paragraphs 5.1 to 5.4 would fortify the view taken by this Court, which are extracted hereunder: “5.1. The learned Tribunal held that even in absence of the driver, owner and the insurance company of another vehicle involved in an accident and whose driver was solely negligent, the application under Section 163-A of the Act would be maintainable against the owner and the insurance company of the vehicle which was driven by the deceased himself, firstly on the ground that the deceased was in employment of the owner of the vehicle which was driven by him and secondly, in an application under Section 163-A of the Act, the negligence is not required to be established and proved and it is enough to establish and prove that the deceased has died in a vehicular accident and while driving a vehicle. The High Court has not agreed with the same and by the impugned judgment and order has held that as the claimants have not filed the claim petition against the owner of another vehicle whose driver was in fact negligent, even as per the claimants and the claim petition should have been filed by the claimants against the owner of another vehicle to seek the compensation, the application under Section 163-A of the Act against the insurance company of the vehicle driven by the deceased himself is liable to be dismissed. 5.2. While answering the aforesaid question involved in the present case, first of all, the findings recorded by the learned Tribunal on Issue 2 is required to be dealt with and considered. The learned Tribunal framed Issue 2 to the effect whether the deceased-driver was driving the vehiclemotorcycle bearing Registration No. RJ 02 SA 7811 being in employment of the vehicle owner-opposite partyBhagwan Sahay in his interest or with his permission/knowledge? 5.3. While answering the finding recorded by the learned Tribunal on Issue No.2, it appears that, as such, M.A.C.A. No.1845/2012 : 10 : the learned Tribunal has not at all answered the aforesaid issue. While answering Issue No.2, there is no specific finding whether the deceased-driver was in employment of the opponent-owner Bhagwan Sahay or not. Even otherwise, no evidence is led by the claimants to prove that the deceased-driver was in employment of the opponentowner Bhagwan Sahay. Despite the above, while answering Issue No.4 there is some observation made by the learned Tribunal that the deceased-driver was in employment of the opponent-owner Bhagwan Sahay, which is not supported by any evidence on record. Under the circumstances, the deceased-driver cannot be said to be in employment of the opponent-owner Bhagwan Sahay and, therefore, he can be said to be permissible user and/or borrower of motor vehicle owned by the opponentowner Bhagwan Sahay. With these findings, the main question posed for consideration of this Court referred to hereinabove is required to be considered. 5.4. An identical question came to be considered by this Court in the case of Ningamma (AIR 2009 SC 3056) (supra). In that case, the deceased was driving a motorcycle which was borrowed from its real owner and met with an accident by dashing against a bullock cart i.e. without involving any other vehicle. The claim petition was filed under Section 163-A of the Act by the legal representatives of the deceased against the real owner of the motorcycle which was being driven by the deceased. To that, this Court has observed and held that since the deceased has stepped into the shoes of the owner of the vehicle, Section 163-A of the Act cannot apply wherein the owner of the vehicle himself is involved. Consequently, it was held that the legal representatives of the deceased could not have claimed the compensation under Section 163-A of the Act. Therefore, as such, in the present case, the claimants could have even claimed the compensation and/or filed the claim petition under Section 163-A of the Act against the driver, owner and insurance company of the offending vehicle i.e. motorcycle bearing Registration No. RJ 29 2M 9223, being a third party with respect to the M.A.C.A. No.1845/2012 : 11 : offending vehicle. However, no claim under Section 163-A was filed against the driver, owner and/or insurance company of the motorcycle bearing Registration No. RJ 29 2M 9223. It is an admitted position that the claim under Section 163-A of the Act was only against the owner and the insurance company of the motorcycle bearing Registration No. RJ 02 SA 7811, which was borrowed by the deceased from the opponent-owner Bhagwan Sahay. Therefore, applying the law laid down by this Court in the case of Ningamma (supra), and as the deceased has stepped into the shoes of the owner of the vehicle bearing Registration No. RJ 02 SA 7811, as rightly held by the High Court, the claim petition under Section 163-A of the Act against the owner and insurance company of the vehicle bearing Registration No. RJ 02 SA 7811 shall not be maintainable.” In the light of the aforesaid observations, the finding of the Tribunal granting compensation to respondents 1 to 3 is liable to be interfered with. However, even while holding that the claimant could not have submitted the application under Section 163A, one aspect is to be noticed. It is discernible from the policy that, the appellant had collected additional premium for providing personal accident coverage to the owner and driver. In Ramkhiladi’s case (cited supra), the Honourable Supreme Court held that compensation could be granted to the claimants therein in terms of the personal accident coverage provided by the Company. It is discernible from the policy that, the amount covered as per the M.A.C.A. No.1845/2012 : 12 : personal accident coverage in the policy is Rs.1,00,000/-. Therefore, even while holding that the claimants were not entitled to claim the compensation under Section 163A of the Motor Vehicles Act, in the light of the specific observations made by the Honourable Supreme Court, it is held that the claimants 1 to 3 are entitled to recover an amount of Rs.1,00,000/-, on the strength of the personal accident coverage provided by the appellant Insurance Company and the appellant herein shall deposit the said amount along with interest @ 8% per annum from the date of petition till realisation within a period of three months from the date of receipt of a copy of this judgment. Sd/ZIYAD RAHMAN A.A. JUDGE ncd/scs