The Oriental Insurance Co. Ltd. v. Salim, Shemeela and Shine Ceramics (MACA No. 35 of 2013)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 20TH DAY OF JANUARY 2020 / 30TH POUSHA, 1941** ## **MACA.No.35 OF 2013** **AGAINST THE AWARD IN OPMV 1890/2006 DATED 03-05-2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR** ## **APPELLANT:** **THE ORIENTAL INSURANCE CO.LTD THODUPUZHA, REP.BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18 BY ADV. SRI.GEORGE CHERIAN (SR.)** ## **RESPONDENTS:** |**1**|**SALIM,**| |---|---| ||**S/O.KHADER, PERUVELI HOUSE, PUSHPANAGAR**| ||**COLONY, CHUNANGAMVELI ,ALUVA-682001**| |**2**|**SHEMEELA,**| ||**W/O.SALIM, PERUVELI HOUSE, PUSHPANAGAR COLONY,**| ||**CHUNAGAMVELI, ALUVA-682001**| |**3**|**MANAGING PARTNER,**| ||**SHINE CEREMICS, N H BYEPASS, PADIVATTOM,**| ||**EDAPPALLY ,KOCHI**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.35 of 2013 2 ## **JUDGMENT** This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Perumbavoor in O.P.(MV)No.1890 of 2006, a claim petition filed under Section 163A of the Motor Vehicles Act, 1988, by respondents 1 and 2, claiming compensation on account of the death of their son Master Muhammed Shameem, a minor aged 2½ years, in a motor accident, which occurred on 13.06.2006, involving a pick-up van bearing registration No.KL-7/BB-5310 owned by the 3[rd] respondent and insured with the appellant herein. Going by the averments in the claim petition, on 13.06.2006, at about 7.00 pm, Master Muhammed Shameem along with his sister Baby Shabanas aged 4 were playing in the pick-up van parked at Pushpanagar Colony. The pick-up van suddenly moved and hit on an electric post. Both children were thrown out of the pickup van, and they sustained severe head injury. Master Muhammed Shameem succumbed to the injuries on the way to hospital and his sister Baby Shabanas succumbed to the injuries on the very same day, while undergoing treatment at Ernakulam Medical Centre, Palarivattom. Alleging that Master MACA No.35 of 2013 3 Muhammed Shameem died on account of the injuries sustained in a motor accident involving pick-up van bearing registration No.KL-7/BB-5310, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,02,000/under various heads, which was limited to 3,00,000/- for the purpose of payment of Court Fee. 2. The 3[rd] respondent herein, the owner of the pick-up van remained absent and he was set ex parte. The appellant insurer filed written statement admitting insurance coverage of the pick-up van involved in the accident. At the time of accident, Master Muhammed Shameem and Baby Shabanas were inside the said vehicle, which is a goods carrier. The accident occurred solely due to the negligence of the claimants and the deceased. The policy of insurance issued to the goods carrier will not cover the liability of gratuitous passengers. The insurer contended that the compensation claimed under various heads are highly exorbitant. 3. Before the Tribunal, the claim petition was tried along with O.P.(MV)No.1893 of 2006 filed claiming compensation on account of the death of Baby Shabanas. On MACA No.35 of 2013 4 the side of the claimants, Exts.A1 to A9 were marked. A copy of the insurance policy was marked as Ext.B1, on the side of the respondents. Both sides have not chosen to adduce any oral evidence. 4. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the deceased sustained fatal injuries in a motor accident, involving pick-up van bearing registration No.KL-7/BB-5310. The said vehicle, which was stationary, got self-started and moved, which capsized into a depth 152cms. Before the Tribunal, the involvement of the pick-up van in the accident was not disputed by the appellant insurer. Therefore, applying the doctrine of strict liability in **Rylands v. Fletcher [(1861-73) All ER Rep 1 : (1868) 3 HL 330]** , the appellant insurer was held liable to pay compensation to the claimants. Since the claim petition was one filed under Section 163A of the Motor Vehicles Act, the Tribunal found that the question of negligence need not be looked into. Under various heads, the Tribunal awarded a total compensation of Rs.2,04,500/-, together with interest at the rate of 8% per annum from the date of petition MACA No.35 of 2013 5 till date of realisation and the appellant insurer was directed to satisfy the award. The amount of compensation was ordered to be apportioned among the claimants, equally. 5. The appellant insurer has filed this appeal by contenting that it has no liability to pay compensation on account of the death of Master Muhammed Shameem since no negligence can be attributed on the driver or owner of the pick-up van, which was parked near Pushpanagar Colony and that, gratuitous passengers are not covered by Ext.B1 insurance policy issued to the pick-up van, which is a goods vehicle. ## 6. In **Rylands v. Fletcher [(1861-73) All ER Rep 1]** the doctrine of strict liability is summarised by Blackburn, J.; thus; "The rule of law is that the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and if he does not do so, he is _prime facie_ answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiffs default; or, perhaps, that the escape was the consequence of vis major or the act of God; but as MACA No.35 of 2013 6 nothing of this sort exists here, it is unnecessary to enquire what excuse would be sufficient." ## The House of Lords considered it and upheld the ratio with the following dictum: "We think that the true rule of law is that the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in all his peril, and, if he does not do so, he is prima facie answerable for all the damages which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default, or, perhaps, that the escape was the consequence of vis major or the act of God; but, as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient". ## 7. In **Kaushnuma Begum v. New India Assurance** **Co. Ltd. [(2001) 2 SCC 9]** the Apex Court was dealing with a case in which the jeep involved in the accident capsized, while it was in motion. The cause of the capsize was attributed to bursting of its front tyre. In the process of capsizing the vehicle hit against the deceased, who was walking on the road. He succumbed to the injuries sustained in that accident. The Tribunal found that the front wheel of the jeep suddenly got burst, resulting in the disbalance and occurrence of the MACA No.35 of 2013 7 accident, as mentioned in the report of the police. The Tribunal dismissed the claim solely on the ground that there was neither rashness nor negligence in driving the vehicle and hence the driver has no liability, and the corollary of which is that the owner has no vicarious liability to pay compensation to the dependants of the deceased. The High Court dismissed the appeal filed by the claimants, stating that there is no error in the order of the Tribunal. 8. In **Kaushnuma Begum** , the question that came up for consideration before the Apex Court was as follows; Even if there is no negligence on the part of the driver or owner of the motor vehicles, but accident happens while the vehicle was in use, should not the owner be made liable for damages to the person who suffered on account of such accident? The Apex Court noticed that, the doctrine of strict liability in **Rylands v. Fletcher** eventually gained approval in a large number of decisions rendered by Courts in England and abroad. _Winfield on Tort_ has brought out even a chapter on the Rule in Rylands v. Fletcher. At page 543 of the 15[th] Edition, the learned author has pointed out that, "over the years **Rylands v. Fletcher** has MACA No.35 of 2013 8 been applied to a remarkable variety of things: fire, gas explosions, electricity, oil, noxious fumes, colliery spoil, rusty wire from a decayed fence, vibrations, poisonous vegetation....". He has elaborated seven defences recognised in common law against action brought on the strength of the rule in **Rylands v. Fletcher** . 9. In **Kaushnuma Begum** , the Apex Court noticed that, the rule in **Rylands v. Fletcher** has been referred to by the Court in a number of decisions. While dealing with the liability of industries engaged in hazardous or dangerous activities P.N. Bhagwati, C.J. speaking for the Constitution Bench in **M.C. Metha v. Union of India [(1987) 1) SCC 395]** , expressed the view that there is no necessity to bank on the rule in **Rylands v. Fletcher** . In **Charan Lal Sahu v. Union of India [(1990) 1 SCC 613]** another Constitution Bench while dealing with Bhopal gas leak disaster cases, made a reference to the earlier decisions in **M.C. Mehta** but did not take the same view. The rule of strict liability was found favour with. Yet another Constitution Bench in **Union Carbide Corporation v. Union of India [(1991) 4 SCC 584]** MACA No.35 of 2013 9 referred to **M.C. Mehta** but did not detract from the rule in **Rylands v. Fletcher** . 10. In **Gujarat State Board Transport Corporation v. Ramanbhai Prabhatbhai [(1987) 3 SCC 234]** , the question considered by the Apex Court was regarding the application of the rule in **Rylands v. Fletcher** in cases arising out of motor accidents. The observation made by E.S. Venkataramiah, J. (as he then was) reads thus; "Today, thanks to the modern civilization, thousands of motor vehicles are put on the road and the largest number of injuries and deaths are taking place on the roads on account of the motor vehicles accidents. In view of the fast and constantly increasing volume of traffic, the motor vehicles upon the roads may be regarded to some extent as coming within the principle of liability defined in **Rylands v. Fletcher** . From the point of view of the pedestrian the roads of this country have been rendered by the use of the motor vehicles highly dangerous. 'Hit and run' cases where the drivers of the motor vehicles who have caused the accidents are not known are increasing in number. Where a pedestrian without negligence on his part is injured or killed by the motorist whether negligence or not, he or his legal representatives as the case may be should be entitled to recover damages if the principle of social justice should have any meaning at all. In order to meet to some MACA No.35 of 2013 10 extent the responsibility of the society to the deaths and injuries caused in the road accidents there has been a continuous agitation throughout the world to make the liability for damages arising out of motor vehicles as a liability without fault." 11. In **Kaushnuma Begum** , the Apex Court held that, like any other common law principle, which is acceptable to our jurisdiction, the rule in **Rylands v. Fletcher** can be followed at least until any other new principle which excels the former can be evolved, or until legislation provides differently. Hence, the Apex Court adopted the rule in **Rylands v. Fletcher** in claims for compensation made in respect of motor accidents. 12. In **Surinder Kumar Arora v. Dr. Manoj Bisla [2012 AIR SCW 2241]** , the Apex Court was dealing with a case in which the claim petition under Section 166 of the Motor Vehicles Act was filed by the parents of the deceased, who was a doctor by profession. The deceased was travelling in the motor vehicle driven by the 1[st] respondent, who happened to be his close associate/friend. It has come out in evidence that the vehicle in question was not driven in a rash and negligent manner by the 1[st] respondent. Based on the MACA No.35 of 2013 11 evidence on record, the Tribunal came to the conclusion that the driver of the vehicle was not driving the same in a rash and negligent manner. In view of the aforesaid finding and conclusion, the Tribunal held that the insurer cannot be mulcted with the liability of paying compensation to the parents of the deceased. In appeal, the High Court, keeping in view the settled distinction between the provisions of Section 163A and Section 166 of the Motor Vehicles Act, came to the conclusion that it was for the parents of the deceased to have established that the vehicle was driven by the 1[st] respondent in a rash and negligent manner, which they have failed to do so before the Tribunal. 13. In **Surinder Kumar Arora** the Apex Court agreed with the principles laid down in **Oriental Insurance Co. Ltd. Vs. Meena Variyal [(2007) 5 SCC 428]** that, the victim of an accident or his dependents have an option either to proceed under Section 166 of the Motor Vehicles Act or under Section 163A of the said Act. Once they approach the Tribunal under Section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the MACA No.35 of 2013 12 driver or owner of the vehicle concerned. But if they proceed under Section 163A of the Act, the compensation will be awarded in terms of the Schedule without calling upon the victim or his dependants to establish any negligence or default on the part of the owner of the vehicle or the driver of the vehicle. 14. In **Surinder Kumar Arora** , the Apex Court held that, since the claim petition filed by the claimants was under Section 166 of the Motor Vehicles Act and not under Section 163A of the said Act, it was the entire responsibility of the parents of the deceased to have established that the 1[st] respondent drew the vehicle in a rash and negligent manner, which had resulted in the fatal accident. Maybe, in order to help the 1[st] respondent, the claimants had not taken up that plea before the Tribunal. Therefore, High Court was justified in sustaining the judgment and order passed by the Tribunal. However, the Apex Court made it clear that, if for any reason, the claimants had filed the petition under Section 163A of the Act, then the principles laid down in the case of **Kaushnuma Begum v. New India Assurance Co. Ltd. [(2001) 2 SCC** MACA No.35 of 2013 13 ## **9]** would have come to the assistance of the claimants. 15. In the instant case, the claim petition was one filed under Section 163A of the Motor Vehicles Act, claiming compensation on account of the death of the claimants' son Master Muhammed Shameem, a minor aged 2½ years. The accident occurred while he was playing along with his sister Baby Shabanas aged 4 years, in a pick-up van owned by the 3[rd] respondent and insured with the appellant, which was parked at Pushpanagar Colony. While they were playing, the pick up van suddenly moved and hit on an electric post. Both children were thrown out of the pick-up van, and they sustained severe head injury, resulting in their death on the date of accident itself. 16. In view of the law laid down by the Apex Court in **Kaushnuma Beegum** , the doctrine of strict liability in **Rylands v. Fletcher** can be applied to the facts of the case on hand, by holding that the 3[rd] respondent owner of the pick-up van, and his driver, who parked the pick-up van at a residential area, without taking any precautions against the entry of children into that vehicle, are prima facie answerable MACA No.35 of 2013 14 ## for the death of the deceased. 17. The Central Government made the Rules of the Road Regulations, 1989 in exercise of the powers conferred by Section 118 of the Motor Vehicles Act, 1988. Regulation 15 deals with parking of vehicles. As per clause (1) of Regulation 15, every driver of a motor vehicle, parking on any road, shall park it in such a way that it does not cause or is not likely to cause danger, obstruction or undue inconvenience to other road users, and if the manner of parking is indicated by any sign board or markings on the road side, he shall park his vehicle in such manner. 18. In that view of the matter, there is absolutely no merits in the contention raised by the appellant insurer that, no liability can be fastened upon the insurer, since the pick-up van was admittedly parked near the place of accident, which accidently moved while the children were playing inside that vehicle. 19. Another contention raised by the appellant insurer is that the deceased was a gratuitous passenger in the pick-up van owned by the 3[rd] respondent, covered by Ext.B1 statutory MACA No.35 of 2013 15 policy, and as such, no liability can be fastened upon the insurer. 20. In the impugned award, the Tribunal noticed that the involvement of the pick-up van in the accident was not disputed by the appellant insurer. Admittedly, the deceased and his sister were not travelling in that pick-up van, from one place to another, as passengers. They were playing inside the pick-up van, which was parked at a residential area, without any precautions against the entry of children into that vehicle. While the children were playing, the vehicle accidently moved and it hit on an electric post. The accident in question is one arising out of the use of the pick-up van owned by the 3[rd] respondent and insured with the appellant, and the deceased and his sister can only be treated as third parties, covered by the statutory liability of the appellant insurer, and they cannot be treated as gratuitous passengers. In the result, this appeal fails and the same is accordingly dismissed. Sd/- **ANIL K. NARENDRAN JUDGE** das