The New India Assurance Co. Ltd. v. Chenthamara M.K. and Others

``` PRESENT ``` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` FRIDAY, THE 10[TH] DAY OF FEBRUARY 2023 / 21ST MAGHA, 1944 ``` ``` MACA NO. 812 OF 2014 ``` ``` AGAINST THE AWARD DATED 28.06.2013 IN OP(MV)NO.26/2006 OF MOTOR ACCIDENTS ``` ``` CLAIMS TRIBUNAL, TIRUR ``` ## `APPELLANT/4TH RESPONDENT:` ``` THE NEW INDIA ASSURANCE CO.LTD REGIONAL OFFICE,KANDAMKULATHY TOWERS, M.G.ROAD,ERNAKULAM, REPRESENTED BY ITS DULY AUTHORISED OFFICER. ``` ``` BY ADV SRI.VPK.PANICKER ``` ## `RESPONDENTS/RESPONDENTS 1,2,3 & PETITIONERS:` ``` 1CHENTHAMARA.M.K., S/O.KANDUMUTHAN,ANAPPARA HOUSE, MUNDOOR,NECHIPPULLY,PIN-673580. 2MANAGING DIRECTOR, K.S.R.T.C,THIRUVANANTHAPURAM-695001. 3RAJESH, S/O.GOPALAKRISHNAN,NADAKKANDIYIL HOUSE, ANGADIPURAM(PO),PIN-679321. 4SWAPNA.T.P., W/O.SUBRAMANYAN @ BABU 5SINI (MINOR) D/O.SUBRAMANYAN @ BABU 6VISHNU, (MINOR) S/O.SUBRAMANYAN @ BABU V.C.APPU @ CHELLY(DIED) (AMENDED AS PER ORDER IN I.A.8785/07 DTD 8/10/07). 7KUNCHU, W/O.APPU @ CHELLY,(RESPONDENTS 4 TO 7 ARE RESIDING AT VAYARATH HOUSE,THIRUVEGAPPURA(PO),OTTAPPALAM TALUK,PALAKKAD DISTRICT,5TH AND 6TH RESPONDENTS ARE MINORS,REPRESENTED BY MOTHER GUARDIAN 4TH RESPONDENT,PIN-679304. R4 TO R7 BY ADVS.SRI.M.I.JOHNSON SRI.T.K.MOIDEEN KUTTY SRI.T.K.SAIDALIKUTTY SRI.ALEX ANTONY SEBASTIAN P.A. STANANDING COUNSEL SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN. SRI.JOHN MATHEW, SC, KERALA STATE ROAD TRANSPORT CORPORATION ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.812 of 2014 ``` ``` 2 ``` ## **`JUDGMENT`** ``` Dated this the 10[th] day of February, 2023 ``` The Appeal on hand is preferred by the 4[th] respondent in the Original Petition who is the insurer involved in the case on hand. Claim Petition was preferred under Section 163 A of the Motor Vehicles Act, 1988 (for short ‘the M.V.Act’). 2. The facts of the case are stated in brief hereunder: On 24.11.2005 at about 2 p.m. while Mr.Subramanian who was the husband of the 1[st] petitioner and father of the 2[nd] and 3[rd] petitioners and son of the 4[th] petitioner was riding a motorcycle bearing Registration Number KL-13/7567 from Valancherry to Thiruvegapuram, a KSRTC bus bearing Registration No.KL-15/3782 dashed against it near Karuna Hospital and thereby he was thrown on the road, sustained grievous injuries and later succumbed to those. The accident was allegedly occurred due to the rash and negligent driving of the bus by its driver. The Original Petition seeking compensation was preferred against respondents 1 to 4 who are the driver and the owner of the KSRTC bus and the owner ``` M.A.C.A.No.812 of 2014 ``` ``` 3 ``` and the insurer of the motorcycle. A sum of Rs.6,00,000/- was claimed as compensation in the Original Petition. 3. 1[st] respondent remained _ex-parte._ 2[nd] respondent filed written statement alleging that the motor accident was occurred due to the overtaking of the bus by the deceased in a careless manner and not due to negligence of the 1[st] respondent. Compensation claimed is also disputed for being exorbitant. The 3[rd] respondent did not file any written statement. The 4[th] respondent filed written statement alleging negligence on the part of the deceased himself, who was riding the motorcycle at the relevant time. The annual income of the deceased being more than Rs.40,000/-, the Original Petition filed under Section 163-A M.V. Act is contended as not maintainable. The motor accident in question was occurred in the attempt of the motorcyclist to overtake the K.S.R.T.C Bus proceeding ahead and turning of it to the left side to avoid hitting a cyclist proceeding from the opposite direction. The policy issued for the motorcycle being a liability only one, risk of the pillion rider is not covered. Compensation claimed is contended as exorbitant and the claim petition is sought to be dismissed. ``` M.A.C.A.No.812 of 2014 ``` ``` 4 ``` 4. Before the Tribunal, Exts. A1 to A15 were marked on the side of the petitioners and Exts.B1 and B2 were marked on the side of the 4[th] respondent. 5. The Tribunal found on appreciation of the evidence adduced by the petitioners that they are entitled to get compensation from the respondents and arrived at Rs.3,69,400/- as the compensation payable. The Tribunal directed the 2[nd] and 4[th] respondents to pay the sum arrived at as compensation with interest at the rate of 9% per annum from the date of filing of the Original Petition till the date of realisation and Rs.2,000/- as proportionate costs. The Tribunal directed the 4[th] respondent to pay Rs.1,00,000/- out of the total compensation and the 2[nd] respondent to pay the remaining sum. The 4[th] respondent is aggrieved by the direction in the impugned award against him to pay Rs.1,00,000/- out of the compensation stands awarded and therefore, the appeal on hand is preferred. 6. It is contended by Sri.V.P.K.Panicker, the learned counsel that the Tribunal is highly unjustified in issuing a direction to the 4[th] respondent to pay Rs.1,00,000/- as ``` M.A.C.A.No.812 of 2014 ``` ``` 5 ``` compensation. According to him the policy issued in respect of the motorcycle being an Act only one, the risk of the rider is not covered. The rider was neither the insured nor owner of the motorcycle. The rider of the motorcycle is only a 3[rd] party as far as the certificate of insurance issued in respect of the motorcycle is concerned. According to the learned counsel the policy being a liability only one the risk of the rider who was not even an insured and registered owner of the vehicle is not covered under it. According to him Rs.50/- was collected to cover the personal accident of insured/registered owner-cumrider of the vehicle and the risk of none else is covered under the policy stands issued. Therefore, the Tribunal, according to the learned counsel, is justified in directing the appellant to pay Rs.1,00,000/- to petitioners out of the total compensation arrived at. 7. Reliance has also been placed on **United India Insurance Co.Ltd V. Vijayarajan and Others** [2009 (3) KHC 158 (DB)] and **Khadeeja v. Rushdi** [2016 (3) KLT 400] where it was held that if it could be discerned from the evidence on record that the deceased was using the motorcycle with the ``` M.A.C.A.No.812 of 2014 ``` ``` 6 ``` permission of the owner/insured, and the policy issued for the vehicle has coverage for owner-cum-rider, the insurance company will be liable to pay compensation, even if it is liability only policy. In **Khadeeja** supra it has been held that merely by stepping into the shoes of the registered owner of the motor cycle, by using the said vehicle with his consent, the deceased will never be ‘owner cum driver’ for the purpose of 'Personal Accident Cover’. The learned counsel for the KSRTC contended on the contrary that the Tribunal is unjustified in fastening liability on K.S.R.T.C in the context on hand. 8. **Ramkhiladi and Another v. United India Insurance Company and Another [2020 KHC 6008]** was relied on by the learned counsel for the petitioners to contend that as per the contract of insurance, the owner/driver is entitled to a sum of Rs.1,00,000/- since premium was paid to the insurer by the insured to have coverage to that extent under the policy. It has been held that the person who was driving the vehicle stepped into the shoes of the owner-cuminsured/driver and therefore is covered under the policy having personal accident coverage and is entitled to get compensation ``` M.A.C.A.No.812 of 2014 ``` ``` 7 ``` from the insurer, but liability is limited only to Rs.1,00,000/- as per the stipulations in the policy stands issued in favour of the insured. 9. It is true that in **Khadeeja** and **United India Insurance Co.Ltd,** referred to supra, a Division Bench has held that in order to be entitled to get compensation under a ‘liability only policy’, the claimants are required to prove that the driver of the vehicle at the relevant time has been using the same with the consent of the owner/insured and only upon such evidence being adduced, the petitioners will be entitled to get compensation. But these decisions have been superceded by the dictum in **Ramkhiladi and Another** supra wherein the Apex Court has held in 2020 that when a person other than the insured/owner/driver has driven the vehicle, he will step into the shoes of the owner/insured/driver and on account of premium collected by the insurer to cover the personal accident of the insured, he will be entitled to get the sum for which it’s liability is limited under the policy. 10. In the case on hand as per the policy issued in respect of a motorcycle, Rs.50/- was found collected as ``` M.A.C.A.No.812 of 2014 ``` ``` 8 ``` premium and liability for the risk of the owner/insured is limited to Rs.1,00,000/-. Since the deceased in the case on hand has driven the vehicle at the relevant time, he stepped into the shoes of the insured/owner/driver as per the dictum in **Ramkhiladi and Another** supra and as per the terms of the policy, the insurer is liable to indemnify the insured for Rs.1,00,000/- only secured by the insured by paying Rs.50/towards premium. The Tribunal found accordingly and the finding deserves to be confirmed. Appeal fails for the reasons and is dismissed. Sd/- ## **MARY JOSEPH** **JUDGE** MJL