New India Assurance Company Limited v. Rajesh R., Shini S.R., and Hon'ble Permanent Lok Adalat

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE AMIT RAWAL ``` ``` THURSDAY, THE 16[TH] DAY OF JUNE 2022 / 26TH JYAISHTA, 1944 ``` ``` WP(C) NO. 13447 OF 2022 ``` ## **`PETITIONERS:`** ``` NEW INDIA ASSURANCE COMPANY LIMITED, CHANDRASEKHARAN NAIR STADIUM COMPLEX, PALAYAM, THIRUVANANTHAPURAM, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM. ``` ``` BY ADVS. GEORGE CHERIAN (SR.) JACOB MATHEW KAITHALIL GEORGE A.CHERIAN ``` ## **`RESPONDENTS:`** ``` 1RAJESH R., S/O. BALASUBRAMANIAYAN, THIRUVATHIRA, SIVAJIPURAM, MALAYINKEEZHU, MACHEL P.O., MACHEL, THIRUVANANTHAPURAM-695571. 2SHINI S.R., W/O. RAJESH R., THIRUVATHIRA, SIVAJIPURAM, MALAYINKEEZHU, MACHEL P.O., MACHEL, THIRUVANANTHAPURAM-695571. 3HONOURABLE PERMANENT LOK ADALATH, THIRUVANANTHAPURAM (FOR PUBLIC UTILITY SERVICE). ``` ``` BY ADVS. SRI.JUSTIN JACOB, SR. GP. SRI.R.T.PRADEEP SRI.M.BINDUDAS SRI.K.C.HARISH ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 13447 OF 2022 ``` ``` -2- ``` ## **`JUDGMENT`** Petitioner insurance Company, insurer of the vehicle bearing Registration No.KL 74 A 2259 owned by Shini S.R., second respondent, mother of the deceased, has challenged the order of the Permanent Lok Adalat, Thiruvananthapuram in O.P.No.42 of 2020 filed under Section 22C of the Legal Services Authorities Act, 1987. The sole contention of the petitioner insurance company is that as per the terms and contract of the insurance policy the extra premium of Rs.320/-(Rupees three hundred and twenty only) was paid towards the personal accident of owner and driver. 2. In the instant case Adarsh, son of respondents 1 and 2, unfortunately met with an accident on 04.02.2020 while driving the aforementioned motor cycle owned by the second respondent. The insurance policy was valid from 07.10.2019 to 06.10.2020 and the insurance company would not be liable to pay the compensation as Adarsh would not fall within the ambit ``` WP(C) NO. 13447 OF 2022 ``` ``` -3- ``` of owner-driver as he would be a third party. In support of the aforementioned contention the judgment of High Court of Punjab and Haryana in **National Insurance Company Ltd. V. Ranjana and others [2020 ACJ 1185]** and of this Court in **M/s.United India Insurance Co.Ltd. Vs. Master Arun P.Nair and Others** in M.A.C.A. No.774 of 2006 had been relied upon. It is contended that the novel method of invoking the jurisdiction of 22C has been adopted as petition under Section 163A could not have been maintainable by impleading the registered owner of the vehicle. But in case of impleadment of the offending vehicle it would happen. But could not have been barred to file the petition impleading the owner and driver of the offending vehicle. Terms and conditions of the insurance policy are sacrosanct once the premium is confined to personal accident of owner-driver. Adarsh, the deceased son of the respondents could not be said to be driver or owner of the vehicle. ``` WP(C) NO. 13447 OF 2022 ``` ``` -4- ``` 3. On the other hand, learned counsel appearing on behalf of the claimants submitted that it is settled law that a claim petition under Section 163A is against the owner and driver of the vehicle and if the deceased was driving it would not be maintainable but against the offending vehicle, is maintainable. In support of the aforementioned contention judgment of honourable Supreme Court in **Ramkhiladi and another v. United India Insurance Co.Ltd. And another** (2020 ACJ 627) was relied to contend that even if the personal accident cover has been paid for owner and driver it would also cover the borrower. The present case is not the case of a borrower but of a son driving the vehicle owned by the mother. In paragraph Nos. 5.4 and 5.5 of the judgment aforementioned, it has been held that the parties would be governed by the contract. Insurance company had obliged to pay in case of an accident, personal cover i.e., PA cover under Section III for owner-driver as Rs.15,00,000/-. It is precisely what has been awarded by the Lok Adalath. Once the premium Rs.320/- has been ``` WP(C) NO. 13447 OF 2022 ``` ``` -5- ``` paid and the insurance company undertaken to pay, cannot now volteface in warding off the liability as they are the custodian of the public repository while obtaining the insurance policy. The order of the Lok Adalath is perfectly legal and justified. 4. I have heard learned counsel for the parties and appraised the paper books and of the view that there is no force or merit. There would have been a force had petition under Section 163A been filed against the owner and driver of the vehicle on which the deceased were driving. It is not a case where the owner-driver of the offending vehicle had been involved but it is a case where the insurance company had undertaken to pay a sum of Rs.15,00,000/- on receipt of the premium of Rs.320/- as personal accident cover for driver-owner. 5. Supreme Court in paragraph No.5.4 and 5.5 has held as under: “5.4 An identical question came to be considered by this court in the case of Ningamma, 2009 ACJ 2020 (SC). In that case, ``` WP(C) NO. 13447 OF 2022 ``` ``` -6- ``` the deceased was driving a motor cycle which was borrowed from its real owner and met with an accident by dashing against a bullock cart, ie, 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 motor cycle which was being driven by the deceased. To that, this court has observed and held that since the deceased had 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, ie., motor cycle bearing registration No. RJ 29-2M 9223, being a third party with respect to the offending vehicle. However, no claim under section 163-A was filed against the driver, owner and/or insurance company of the motor cycle 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 ``` WP(C) NO. 13447 OF 2022 ``` ``` -7- ``` company of the motor cycle 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 had 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. 5.5 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 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 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 163-A of the Act against the owner and insurer of the vehicle bearing registration No. RJ 02-SA 7811. In the present case, the parties ``` WP(C) NO. 13447 OF 2022 ``` ``` -8- ``` 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 the case of Dhanraj, 2005 ACJ 1 (SC), 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.” 6. On perusal of the same, it is evident that while answering the arguments of the respective parties, it has been held that deceased has to be a third party and cannot maintain a claim petition under 163A of the Act against the owner and insurer of the vehicle which is ``` WP(C) NO. 13447 OF 2022 ``` ``` -9- ``` borrowed by him as he will be in the shoes of the owner. Once it has been found that the borrower has been in the shoes of the owner question is he would be termed to be a driver and owner for which a premium has been paid of Rs.320/- as the insurance company bound itself to pay a maximum amount of Rs.15,00,000/- and the terms and conditions of the contract have also been noticed in paragraph No.5.8 which reads as under: “5.8 However, at the same time, even as per the contract of insurance, in case of personal accident the owner-driver is entitled to a sum of Rs. 1,00,000. Therefore, the deceased, as observed hereinabove, who would be in the shoes of the owner shall be entitled to a sum of Rs. 1,00,000 even as per the contract of insurance. However, it is the case on behalf of the original claimants that there is an amendment to the Second Schedule and a fixed amount of Rs. 5,00,000 has been specified in case of death and, therefore, the claimants shall be entitled to Rs. 5,00,000. The same cannot be accepted. In the present case, the accident took place in the year 2006 and even the judgment and award was passed by the learned Tribunal in the year 2009, and the impugned judgment and order has been passed by the High Court on ``` WP(C) NO. 13447 OF 2022 ``` **==> picture [30 x 9] intentionally omitted <==** 10.5.2018, i.e., much prior to the amendment in the Second Schedule. In the facts and circumstances of the present case, the claimants shall not be entitled to the benefit of the amendment to the Second Schedule. At the same time, as observed hereinabove, the claimants shall be entitled to Rs. 1.00000 as per the terms of the contract of insurance, the driver being in the shoes of the owner of the vehicle.” 7. The 'driver's clause' and 'limits of liability clause' undertaken by the insurance company is as follows: “Driver's Clause: Any person including the insured: Provided that the person driving holds an effective driving license at the time of the accident and is not disqualified from holding or obtaining such license. Provided also that the person holding an effective learner's license may also drive the vehicle & that such person satisfies the requirements of Rule 3 of the Central Motor Vehicle Rules, 1989. Limits of Liability Clause: Under Section II-1(i) of the policy-Death of or bodily injury: Such amount as is necessary to meet the requirements of the Motor Vehicle Act 1988. ``` WP(C) NO. 13447 OF 2022 ``` **==> picture [30 x 9] intentionally omitted <==** Under Section II 1(ii) of the policy-Damage to third party property is Rs.1 Lakhs PA Cover Under Section III for Owner-Driver is Rs. 1500000.” On perusal of the above, I am of the view that the award of the Lok Adalat is perfectly legal awarding the composition confining to Rs.15,00,000/- in respect of death of deceased Adarsh, who was at young age at the time of accident. Writ petition sans merit. Accordingly dismissed. Sd/- ## **`AMIT RAWAL`** ``` JUDGE ``` ``` vv ``` ``` WP(C) NO. 13447 OF 2022 ``` ``` -12- ``` ## **`APPENDIX OF WP(C) 13447/2022`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1TRUE COPY OF O.P.NO.42/2020 OF PERMANENT LOK ADALATH, THIRUVANANTHAPURAM. ``` ``` Exhibit P2TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER. ``` ``` Exhibit P3TRUE COPY OF THE ORDER IN O.P.NO.42/2020 OF THE PERMANENT LOK ADALATH. ```