New India Assurance Co. Ltd. v. Rona Thomson Abraham and Others

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 23[RD] DAY OF MARCH 2022 / 2ND CHAITHRA, 1944 MACA NO. 887 OF 2010 ``` ``` AGAINST THE AWARD DATED 21.11.2009 IN OP(MV)NO.350/2003 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA ``` ## `APPELLANT/4TH RESPONDENT:` ``` THE NEW INDIA ASSURANCE CO.LTD., CHENGANNUR, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, KANDAMKULATHY TOWER, M.G.ROAD, THIRUVANANTHAPURAM. ``` ``` BY ADV SRI.LAL GEORGE ``` ## `RESPONDENTS/ CLAIMANTS 1, 2 & 3:` ``` 1RONA THOMSON ABRAHAM , AGED 20 YEARS, KASHAVUMKAL PUTHENPURACKAL VEEDU, KAVIYOOR P.O., THIRUVALLA. 2K.THOMAS ABRAHAM, AGED 53 YEARS, KASHAVUMKAL PUTHENPURACKAL VEEDU, KAVIYOOR P.O., THIRUVALLA. ``` ``` 3K.V.KURUVILLA, KANJIRATHUMMOOTTIL HOUSE, THELLIYOOR P.O., MALLAPPALLY. ``` - `4 THE ORIENTAL INSURANCE COMPANY THIRUVALLA.` ``` 5RAM SANKAR, M/S.MARIAMUTHU & SONS, THIRUNELVELI, TAMIL NADU. ``` ``` BY ADVS.SRI.A.R.GEORGE SRI.SAJJU.S SRI. K.SHAJ ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.887/2010 -:2:- Dated this the 23[rd] day of March,2022 ## **J U D G M E N T** The fourth respondent-insurer in O.P. (MV)No.350/2003 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta, is the appellant. The claimants before the Tribunal are the respondents 1 and 2 in the appeal, and the respondents 1, 2 and 3 before the Tribunal are the respondents 3 to 5 in the appeal. The parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioners had filed the claim petition under Section 163A of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to the first petitioner in an accident on 19.01.2003. The second petitioner had represented the first petitioner in the claim petition due to his disability. M.A.C.A.No.887/2010 -:3:- It was their case that, on 19.01.2003, while the first petitioner was riding a motorcycle bearing registration No.TN-72/B-4440, owned by the third respondent, through the Thiruvalla-Kozhencherry road, another motorcycle bearing registration No.KL-5/C-6905 (offending motorcycle), owned by the son of the first respondent and driven by his friend in a negligent manner, hit the motorcycle on which the first petitioner was riding. The first petitioner sustained serious injuries, including a fracture of his right clavicle bone with abnormal mobility, cervical spine injury, fracture of the spinous process C6, C7, C8 and T1 and fracture of the mandible. He was treated as an inpatient from the date of accident till 18.02.2003 at the Pushpagiri Medical Hospital, Thiruvalla. The offending motorcycle was insured with the second respondent and the motorcycle on which the first petitioner was travelling was insured with the fourth respondent. The first M.A.C.A.No.887/2010 -:4:- petitioner was a computer multimedia designer and was earning a monthly income of Rs.3,300/-. Hence, the petitioners claimed a compensation of Rs.3,00,000/from the respondents, which claim was limited to Rs.2,00,000/-. 3. The respondent Nos.1 and 3 did not contest the proceeding and were set ex parte. 4. The second respondent – the insurer of the offending motorcycle had filed a written statement, admitting that the offending motorcycle had a valid insurance policy. It was contended that, as per the police records, it was the first petitioner who was negligent in causing the accident. Therefore, as the first respondent was a tortfeasor, he was not entitled to any amount as compensation. Hence, the second respondent prayed for dismissal of the claim petition. 5. The fourth respondent-insurer of the motorcycle driven by the first petitioner had filed a M.A.C.A.No.887/2010 -:5:- written statement, inter alia, contending that, as the police had referred the accident as a ‘motor occurrence’, the claim petition was not maintainable. Also, the third respondent had violated the insurance policy conditions. The fourth respondent also disputed the age, income and occupation of the first petitioner. 6. The petitioners had produced and marked Exts.A1 to A7 in evidence. The respondents did not let in any evidence. 7. The Tribunal,after analysing the pleadings and materials on record, in the interest of justice, held that the insurers of both the motorcycles – the respondents 2 and 4 – were liable to pay the compensation amount in equal shares. The Tribunal quantified the compensation at Rs.1,31,000/- with interest and cost of Rs.4,000/-. 8. Aggrieved by the impugned award, the fourth respondent, is in appeal. 9. Heard; Sri.Lal George, the learned counsel M.A.C.A.No.887/2010 -:6:- appearing for the appellant/fourth respondent-insurer and Sri. A. R. George, the learned counsel appearing for the fourth respondent/ second respondent-insurer of the offending motorcycle. 10. The point that arises for consideration in this appeal is whether the direction to the appellant/fourth respondent-insurer to pay 50% of the compensation amount is sustainable in law or not?. 11. Sri. Lal George, the learned counsel appearing for the appellant/fourth respondent-insurer, argued that since the accident was a self accident as per the police records, the first petitioner had stepped into the shoes of the owner and, hence, the appellant is not liable to any compensation, in the light of the law laid down by the Hon'ble Supreme Court in **Ningamma & Another v. United India Insurance Co.Ltd.** [(2009) 13 SCC 710]. He contended that, if at all the first petitioner is entitled to any amount, it is only the insurer of the M.A.C.A.No.887/2010 -:7:- offending motorcycle who has to pay the compensation. Thus, he prayed for total exoneration of the appellant. 12. Sri. A. R. George, the learned counsel appearing for the fourth respondent/second respondent-insurer of the offending motorcycle, vehemently countered the above submissions and argued that, as the appellant had confined the grounds in the memorandum of appeal to the question that the first respondent/first petitioner was not entitled to compensation because he had stepped into the shoes of the owner, the appellant cannot now expand or widen the scope of the appeal beyond the grounds formulated. Hence, this Court should limit the consideration of the appeal to the point whether the first respondent had stepped into the shoes of the owner or not. 13. The specific case of the petitioners in the claim petition was that, on 19.01.2003, while the first petitioner was riding the motorcycle bearing M.A.C.A.No.887/2010 -:8:- Registration No.TN-72/B-4440, due to the negligence of the rider of the offending motorcycle, which was owned by the son of the first respondent and insured with the second respondent before the Tribunal, the accident occurred. Even though the petitioners had produced Ext.A2 Final Report filed by the police, to establish that the accident occurred due to the skidding of the motorcycle driven by the first petitioner, the same is inconsequential and irrelevant now, in view of the ratio decidendi of the Hon’ble Supreme Court in **United India Insurance Co.Ltd. v. Sunil Kumar and Another** [2017 (4) KLT 1093(SC)], wherein it is held that the question of negligence shall not be looked into a claim under Section 163A of the Act, since it is akin to the no-fault liability principle. The above principle has been reiterated by the Hon’ble Supreme Court in **Ramkhiladi and Anr. v. United India Insurance Co. and Anr.** [(2020) 2 SCC 550]. M.A.C.A.No.887/2010 -:9:- 14. In the light of the law laid down and the unequivocal pleading in the claim petition that the accident occurred due to the collision between the motorcycle driven by the first petitioner and the offending motorcycle driven by the friend of the owner – the son of the first respondent before the Tribunal – the claim is maintainable under Section 163A of the Act. 15. Then the question is whether the insurer of the motorcycle on which the first petitioner was riding is to be mulct with the liability to pay 50% of the compensation amount. 16. In paragraph No.9.5 of Ramkhiladi(supra), it is held as follows: “ It is true that, in a claim under Section 163-A of the Act, there is no need for the claimants to plead or establish the negligence and/or that the death in respect of which the claim petition is sought to be established was due to wrongful act, neglect or default of the owner of the vehicle concerned. It is also true that the claim petition under Section 163-A of the Act is based on the principle of no-fault liability. However, at the same time, the deceased has to be a third party and cannot maintain a claim under Section 163-A of the Act against the owner/insurer M.A.C.A.No.887/2010 -:10:- of the vehicle which is borrowed by him as he will be in the shoes of the owner and he cannot maintain a claim under Section 163A of the Act against the owner and insurer of the vehicle bearing Registration No. RJ 02 SA 7811. In the present case, the parties are governed by the contract of insurance and under the contract of insurance the liability of the insurance company would be qua third party only. In the present case, as observed hereinabove, the deceased cannot be said to be a third party with respect to the insured vehicle bearing Registration No. RJ 02 SA 7811. There cannot be any dispute that the liability of the insurance company would be as per the terms and conditions of the contract of insurance. As held by this Court in Dhanraj, an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person(including an owner of the goods or his authorised representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. In the said decision, it is further held by this Court that Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle.” (emphasis given) 17. In view of the clear enunciation of law in **Ramkhiladi** (supra), I am definite view that the claim will not lie under Section 163A of the Act, against the insurer of one’s own vehicle. Admittedly, the first petitioner was riding a motorcycle that was owned by the third respondent and insured with the fourth M.A.C.A.No.887/2010 -:11:- respondent. Therefore, he has certainly stepped into the shoes of the third respondent. Hence, the claim will not lie against the fourth respondent-insurer, following the principles in **Ramkhiladi** and **Ningamma** (supra). Therefore, the finding of the Tribunal, that to meet the ends of justice, both the insurers have to pay the compensation is wrong and unsustainable in law. 18. Even though, the appellant/fourth respondent-insurer has not specifically casted a ground in the memorandum of appeal with regard to the liability of the insurer of the offending motorcycle, this Court cannot ignore the law laid down by the Hon’ble Supreme Court in **Ramkhiladi** and **Ningamma** (supra), which is a pure question of law, which has been subsequently interpreted and settled by the Hon’ble Supreme Court and has retrospective application. Furthermore, if the said course is not followed, the first petitioner would be denied 50% of the compensation M.A.C.A.No.887/2010 -:12:- amount, which again is impermissible in law. 19. On a comprehensive re-appreciation of the pleadings, materials on record and law on the point, I am of the firm view that the finding of the Tribunal that the appellant/fourth respondent-insurer is liable to pay 50% of the compensation amount is erroneous. Thus, I hold that, as the accident occurred between the two motorcycles, the fourth respondent-insurer is liable to pay the entire compensation amount to the first respondent. In the result, the appeal is allowed. The impugned award, so far as it directs the appellant/fourth respondent-insurer to pay 50% compensation amount , is set aside. The fourth respondent/second respondent-insurer of the offending motorcycle is directed to pay the entire compensation amount as per the impugned award, to the first petitioner. In the peculiar facts and circumstances of the case, the parties M.A.C.A.No.887/2010 -:13:- ## shall bear their respective costs. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/23.03.22 //True copy/ P.A.To Judge