The Oriental Insurance Co. Ltd. v. Pallikunni and Ors.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 9[TH] DAY OF MARCH 2022 / 18TH PHALGUNA, 1943 MACA NO. 1897 OF 2011 ``` ``` AGAINST THE AWARD DATED 03.08.2011 IN OP(MV)NO.411/2007 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,KASARAGOD ``` ## `APPELLANT/2ND RESPONDENT:` ``` THE ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE, KANJIRAPPALLY, REPRESENTED BY THE AUTHORISED SIGNATORY, THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE,METRO PALACE, ERNAKULAM NORTH, KOCHI-18. ``` ``` BY ADV SRI.A.R.GEORGE ``` ## `RESPONDENTS CLAIMANTS & 1ST RESPONDENT:` ``` 1PALLIKUNHI, S/O.LATE IBRAHIM, RESIDING AT KUDINGALA, ETHADKA POST, KUMBADAJE VILLAGE, KASARAGOD TALUK AND DISTRICT-671 121. 2KUNHIBI, W/O.PALLIKUNHI, -DO- -DO- 671 121 3TOMY MATHEW, UPPIDUPARAYIL HOUSE, KONIPPADU, BHARANAGNAGAM VILLAGE, THODUPUZHA, IDUKKI DISTRICT-686 578. ``` ``` BY ADV SRI.K.C.JOSEPH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.1897/2011 -:2:- Dated this the 9[th] day of March,2022 ## **J U D G M E N T** The second respondent-insurer in O.P (MV)No.411/2007 on the file of the Motor Accidents Claims Tribunal, Kasargod, is the appellant. The petitioners and the first respondent in the claim petition are the respondents in the appeal. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioners had filed the claim petition under Section 163A of the Motor Vehicles Act, 1988(in short, 'Act'), claiming compensation on account of the death of 'Ibrahim Sherif'(deceased). It was their case that, on 01.02.2007, while the deceased was driving a Tempo Van bearing registration No.KL-06-A-435(LMV M.A.C.A.No.1897/2011 -:3:- Goods Carriage) from Kasargod to Badiadka, the deceased lost control of the van and it hit against a tree. The deceased had suffered multiple injuries and lost his life before reaching the hospital. The petitioners were the parents of the deceased and were thus, his legal heirs. The first respondent was the insured and the second respondent was the insurer of the van. The deceased was a driver and was earning a monthly income of Rs.4,500/. Hence, the petitioners claimed a compensation of Rs.2,30,000/- from the respondents, which claim was limited to Rs.2,00,000/- 3. The first respondent did not contest the proceeding and was set ex parte. 4. The second respondent-insurer had filed a written statement, admitting that the van had a valid insurance in the name of the first coverage respondent; but, he was not the owner of the van. As on the date of the accident, the deceased was the M.A.C.A.No.1897/2011 -:4:- owner of the van. The insurance policy was not transferred to the name of the deceased. Therefore, the claim petition was not maintainable. The second respondent also disputed the age, income and occupation of the deceased and prayed for dismissal of the claim petition. 5. The petitioners had produced and marked Exts.A1 and A2 in evidence and the second respondent had produced and marked Exts.B1 and B2 in evidence. 6. The Tribunal, after appreciating the pleadings and materials on record, by the impugned award, allowed the claim petition, by holding that the petitioners are entitled to an amount of Rs.2,74,500/-; but as they have limited their claim to Rs.2,00,000/-, permitted the petitioners to recover from the second respondent an amount of Rs.2,00,000/- with interest and proportionate cost. 7. Aggrieved by the allowing of the claim M.A.C.A.No.1897/2011 -:5:- petition, the second respondent-insurer is in appeal. 8. Heard; Sri. A.R. George the learned counsel appearing for the appellant/second respondent-insurer and Sri. K.C. Joseph, the learned counsel appearing for the third respondent/first respondent-insured. 9. The point that arises for consideration in this appeal whether the impugned award is sustainable in law?. 10. The case of the petitioners in the claim petition was that while their son – the deceased – was driving the van, he lost control of the van which hit against a tree and he was thrown out of the van. He had suffered multiple injuries and lost his life. They impleaded the first respondent as the insured and the second respondent as the insurer of the van. They had contended that the deceased was a driver and was earning a monthly income of Rs.4.500/-. 11. In view of the unambiguous admission on the M.A.C.A.No.1897/2011 -:6:- part of the petitioners that the deceased was earning a monthly income of Rs.4,500/- i.e., an annual income of Rs.54,000/-, the Tribunal ought to have dismissed the claim petition at the very threshold, in view of the statutory bar under Section 163A of the Act, read with the income cap under the Second Schedule of the Act, which permits claim petitions to be filed by the injured/legal heirs of the deceased victims who have an annual income not exceeding Rs.40,000/-. This position is well settled by this Court in **National Insurance Company Ltd. v. K.S. Lathika** and **Others** [2011(3) KHC 393] and **Sumathi Amma and Others v. Babu & Ors** [2018 KHC 7529]. Therefore, the Tribunal ought to have dismissed the claim petition in limine, instead of proceeding with the same. Nevertheless, it was not done. 12. In addition to the above elementary flaw, the second respondent had categorically pleaded in the M.A.C.A.No.1897/2011 -:7:- written statement that the deceased was the registered owner of the van. To substantiate its pleadings, Ext.B1 registration particulars was produced. Ext.B1 shows that, as on 18.10.2006, the ownership of the van was transferred to the name of the deceased. Therefore, from the above said date, the deceased was the owner of the van. 13. It is no longer res integra, in view of the exposition of law by the Hon'ble Supreme Court in **Ningamma & Anr. v. United India Insurance Co.Ltd.** [2009 KHC 5046] and by the Division Bench of this Court in **Jiljet & Anr. v. Stamphen George** [2019 (1) KLT 546], that the owner of the vehicle cannot pursue a claim under Section 163A of the Act, in a case of self accident. Thus, the claim petition was to be dismissed on the said count also. 14. The Tribunal, after perusing Ext.B2 insurance policy, found that the first respondent-insured had paid M.A.C.A.No.1897/2011 -:8:- an amount of Rs.100/- for the purpose of obtaining a personal accident cover of Rs.2,00,000/- for the owner-driver. 15. Sri. A.R. George, the learned counsel appearing for the appellant/insurer vehemently placed reliance on the following conditions in Ext.B2 policy, which reads thus: ## **“PERSONAL ACCIDENT COVER FOR OWNER-DRIVER** Subject otherwise to the terms exceptions conditions and limitations of this Policy, the Company undertakes to pay compensation as per the following scale for bodily injury death sustained by the ownerdriver of the vehicle in direct connection with the vehicle insured or whilst mounting into/dismounting from or traveling in the insured vehicle as co-driver, caused by violent, accidental, esternal and visible means which independently of any other cause shall within six calendar months of such injury result in |months of such injury result in|| |---|---| ||**Scale of compensation**| |i)Death|100%| |(ii) Loss of two limbs or sight<br>of two eyes or one limb<br>and sight of one eye|100%| |(iii) Loss of one limb or sight of<br>one eye|50%| |(iv) Permanent total<br>disablement from injuries<br>other than named above|100%| Provided always that - 1) the compensation shall be payable under only one of the items (i) M.A.C.A.No.1897/2011 -:9:- to (iv) above in respect of the owner-driver arising out of any one occurrence and the total liability of the insurer shall not in the aggregate exceed the sum of Rs.-----during any one period of insurance. - 2) No compensation shall be payable in respect of death or bodily injury directly or indirectly wholly or in part arising or resulting from or traceable to (a) intentional self injury suicide or attempted suicide physical defect or infirmity or (b) an accident happening whilst such person is under the influence of intoxicating liquor or drugs. ## This cover is subject to - (a) the owner-driver is the registered owner of the vehicle insured herein; - (b) the owner-driver is the insured named in this policy. - (c) the owner-driver holds an effective driving license, in accordance with the provisions of Rule 3 of the Central Motor Vehicles Rules, 1989, at the time of the accident. - (d) the fact that the owner is likely to drive vehicle disclosed in the proposed and the required extra premium paid.” (emphasis given) 16. Sri. A. R. George contended that, if the personal accident cover was to be paid by the insurer, the above four conditions extracted above has to be fulfilled by the insured i.e., the owner-driver has to be the registered owner of the vehicle, the owner-driver is the insured named in the policy, the owner-driver holds an effective driving licence and that the fact that the owner is likely to drive the vehicle disclosed in the policy proposed and the required extra premium is paid. He then placed reliance on Ext.B1 vehicle M.A.C.A.No.1897/2011 -:10:- registration particulars, to demonstrate that, even though the deceased was the owner, he was not the insured. Therefore, the appellant was not liable to pay any amount under the personal accident cover, because the insurance policy stood in the name of the first respondent. Therefore, as on the date of the accident,the insured and the owner were two different persons. Hence, the insurer was to be exonerated to pay any amount. He canvassed the above position by relying on the Division Bench decision of this Court in **United India Insurance Co.Ltd. v. Vijayarajan & Ors** .[2009(3) KHC 158] and the un-reported decision of this Court in M.A.C.A.No.774/2006, wherein this Court has categorically held that, if the insured does not fulfill the terms and conditions in the schedule to insurance policy, the insurer is not liable to pay any amount towards personal accident cover. 17. In view of the enunciation of law by this M.A.C.A.No.1897/2011 -:11:- Court in the above-cited decisions, and taking into consideration that the insured and the owner were not the same person, as on the date of the accident, I am of the firm view that the appellant-insurer is not liable to pay any amount under the personal accident cover also. 18. On an overall re-appreciation of the pleadings and materials on record, and the findings rendered above, principally for the reason that the claim petition was not maintainable under Section 163A, as the deceased had an annual income exceeding Rs.40,000/-, I hold that the claim petition is only to be dismissed. In the result, the appeal is allowed and O.P. (MV)No.411/2007 is dismissed. In view of the allowing of the appeal, any amount deposited by the appellant , pursuant to the orders of this Court and also the statutory deposit made under Section 173 of the Act shall be refunded to the appellant by the Tribunal, on M.A.C.A.No.1897/2011 -:12:- an application by the appellant, in accordance with law. In the peculiar facts of the case, the parties shall bear their respective costs. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/09.03.22 //True copy/ P.A.To Judge