The Oriental Insurance Co. Ltd. v. Vijayakumaran Nair and Unnikrishnan Potti

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.** **FRIDAY, THE 3[RD] DAY OF MAY 2024 / 13TH VAISAKHA, 1946** ## **MACA NO. 2818 OF 2015** **AGAINST THE AWARD DATED 20.01.2015 IN OP(MV) NO.1554 OF 2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA** ## **APPELLANTS:** **THE ORIENTAL INSURANCE CO. LTD THIRUVANANTHAPURAM, REP. BY THE AUTHORISED SIGNATORY, THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE ERNAKULAM, METRO PALACE, ERNAKULAM NORTH, KOCHI 18.** **BY ADV SRI.A.R.GEORGE** ## **RESPONDENTS:** **1 VIJAYAKUMARAN NAIR S/O.LATE BALAKRISHNA PILLAI, VARUVILAKATHU VEEDU, DWARAKA, VELIYANNOOR P.O., VELLANADU, (VIA) ARYANADU, THIRUVANANTHAPURAM DISTRICT 695 542.** **2 UNNIKRISHNAN POTTI S/O.SANKARAN POTTI, KUNNILA MADOM, VELIYANNOOR P.O., VELLANADU, (VIA) ARYANADU, THIRUVANANTHAPURAM DISTRICT 695 542.** **BY ADVS. SRI.VISHNU BHUVANENDRAN SRI.BENOJ C AUGUSTIN SMT.J.KASTHURI SRI.NAGARAJ NARAYANAN SMT.PRIYA BABU SRI.SAIJO HASSAN SRI.SEBIN THOMAS SRI.VIVEK V. KANNANKERI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.2818/2015 2 ## **JUDGMENT** _Dated this the 3[rd] day of May, 2024_ This M.A.C.A. is filed challenging the Award in O.P. (M.V.) No.1554 of 2006 dated 20.01.2015 on the files of the Motor Accidents Claims Tribunal, Neyyattinkara (hereinafter referred to as the ‘Tribunal’). The 2[nd] respondent in the O.P.(M.V.) viz., the Insurance Company is the appellant herein. The claim was filed by the 1[st] respondent – driver invoking Section 163A of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act'). 2. **Brief facts leading to the M.A.C.A.:** On 13.07.2006, a motorcycle bearing registration No.KL-16/2641 driven by the 1[st] respondent met with an accident on the Nettirachira – Vellanadu public road. The 1[st] respondent contended that while negotiating a lorry that came from the opposite direction, he had applied sudden brake to avoid an accident which caused the motorcycle to skid, throwing him off to the road, causing injuries. He contended that he had underwent treatment in the Medical College Hospital, Thiruvananthapuram, and that after discharge therefrom, he had to continue outpatient treatment. He further claims that he is permanently disabled due M.A.C.A.No.2818/2015 3 to the said accident. ## 3. **Proceedings before the Tribunal:** The owner of the motorcycle, the 2[nd] respondent in the MACA, was the 1[st] respondent in the O.P.(M.V.). He remained exparte. The Insurance Company arrayed as 2[nd] respondent in the O.P. (M.V.) filed a written statement admitting the policy coverage of the motorcycle. It was contended in the written statement that the accident occurred due to the claimant's own negligence and hence he is not entitled to any compensation. The veracity of the injuries, the treatment undertaken and the purported disability were denied by the Insurance Company in their written statement. The evidence before the Tribunal consisted of the oral evidence of PW1 claimant and Exts.A1 to A10 produced by him. Ext.B1 document was the copy of the Insurance Certificate which was produced by the Insurance Company. Three issues were framed by the Tribunal and parties went to trial thereon. ## 4. **Findings in the Award:** The Tribunal, after considering the evidence tendered and after hearing the contesting parties, concluded that there was no negligence on the part of the claimant as alleged by the Insurance Company and that since the claim is preferred under Section 163A M.A.C.A.No.2818/2015 4 of the Act, which based on the no fault liability principle, the aspect regarding negligence is irrelevant. The Tribunal thus answered the maintainability question in favour of the claimant and proceeded to fix the compensation that was due and payable. Basing on the evidence tendered, the Tribunal awarded a total compensation of Rs.71,000/- with 9% interest per annum. The said Award of the Tribunal is challenged in the above M.A.C.A. by the appellant Insurance Company. 5. Heard Sri.A.R.George, learned counsel appearing for the appellant and Sri.Nagaraj Narayanan learned counsel appearing for the respondents. ## 6. **Contention of the parties:** The principal contentions raised by the learned counsel for the appellant are summarized as follows: # The Award has been rendered overlooking the trite and settled law relating to claims invoking Sec. 163 A. # Claims under Sec.163A are also under fault liability principle since the insured /person riding the motorcycle will not be a 3[rd] party. It follows that a rider who rides the motorcycle after borrowing it from the insured, will step into the shoes of the insured. M.A.C.A.No.2818/2015 5 # The 1[st] respondent claimant was at the relevant time of the accident riding motorcycle No.KL-16/2641 owned by the 2[nd] respondent. # There was no collision involving another vehicle. Admittedly the accident happened due to the skidding of the motorcycle driven by the 1[st] respondent consequent to which he sustained injuries. # The owner of the motorcycle had permitted the claimant to ride the same and thus the driver stepped into the shoe of the owner. # For a claim to be preferred under Section 163A, it is mandatory that the claimant should be a third party to any other vehicle. This mandate has not been satisfied in the facts and circumstances of the case. # Reliance is placed by the learned counsel on the dictum laid down in **Jiljet and another v. Stamphen George** **and others** (2018 (5) KHC 206), **United India Insurance Co. Ltd. v. Vijayarajan** [2009 (3) KLT 269] 7. Per contra _,_ the learned counsel for respondents submitted that the Award of the Tribunal is legally valid and sustainable. The finding of the Tribunal that since the claim is M.A.C.A.No.2818/2015 6 under Sec. 163A of the Act, the aspect of negligence is irrelevant as the said section is based on ‘no fault liability’ is valid and correct.The Tribunal had correctly relied on the dictum in **United India Insurance Co. Ltd. v. Sunil Kumar** (2013 (4) KLT 488 SC). The counsel thus seeks to dismiss the M.A.C.A. filed by the Insurance Company. ## 8. **Discussion and Reasoning:** There is substantial concurrence between the contesting parties regarding the facts leading to the accident. That the injuries suffered by the 1[st] respondent/claimant occurred due to the skidding of the motorcycle and that the incident did not involve any collision with another vehicle are admitted. That the 1[st] respondent was driving the motorcycle as permitted by its owner viz., the 2[nd] respondent is also not challenged. Contesting parties are also in unison that the claim was preferred under Sec.163A of the Act. That much facts being admitted, it would now be relevant to survey the law that governs such facts. 9. The proposition that in a claim filed invoking Sec.163A of the Act, the victim or his dependents need not establish any negligence or default on the part of the owner of the vehicle or driver of the vehicle is no longer _res integra._ It is also well settled M.A.C.A.No.2818/2015 7 that the liability under Sec.163 A of the Act is on the owner of the vehicle and hence a person cannot be both a claimant as also a recipient, with respect to the claim. The injured claimant who was driving the vehicle after borrowing it from the owner of the vehicle steps into the shoe of the owner of the motorcycle, thus disentitling him to maintain a claim invoking Sec.163 A. A catena of judgments both of the Hon’ble Supreme Court as well as of this Court lays down and affirms the said principle. 10. The Hon’ble Supreme Court in **Ningamma and another v. United India Insurance Co. Ltd** _**.**_ (AIR 2009 Supreme Court 3056) _inter alia_ while considering the scope, ambit and applicability of Sec. 163 A, held as follows: “19. We have already extracted Section 163-A of the MVA herein before. A bare perusal of the said provision would make it explicitly clear that persons like the deceased in the present case would step into the shoes of the owner of the vehicle. In a case wherein the victim died or where he was permanently disabled due to an accident arising out of the aforesaid motor vehicle in that event the liability to make payment of the compensation is on the insurance company or the owner, as the case may be as provided under Section 163-A. But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of M.A.C.A.No.2818/2015 8 compensation as the liability to pay the same is on him. This proposition is absolutely clear on a reading of Section 163-A of the MVA. Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under Section 163-A of the MVA.'' Subsequently, in **Ramkhiladi & another v. United India Insurance Co. & another** [(2020) 2 SCC 550], the Hon’ble Supreme Court has again re-affirmed the above dictum. 11. The counsel for the appellant has also relied on the dictum laid down by this Court in **United India Insurance Co. Ltd. v. Vijayarajan** (2009 (3) KLT 269) and in **Jiljet and another v. Stamphen George and others** (2018 (5) KHC 206). Both of the said cases have followed the judgments of the Hon’ble Supreme Court in _**Ningamma**_ and _**Ramkhiladi**_ (supra). The contention put forth by the counsel based on the said judgments is that there is no concept of owner/insured becoming liable to pay compensation to himself under any circumstances and as such, no liability can be shifted to the shoulders of the insured in the facts and circumstances of the case. I find force in the said submission made by the counsel for the appellant. The accident was occasioned not due to collision with another vehicle. M.A.C.A.No.2818/2015 9 The injured was driving the motorcycle himself and the same had skid while applying sudden brake. He had borrowed the motorcycle from its owner viz., the 2[nd] respondent. On a survey of the judgments relied on by the appellant, it is seen that in such a factual matrix, the 1[st] respondent cannot maintain the application under Section 163A and seek compensation. The reasoning of the Tribunal in the impugned Award that under Section 163A of the Act, the aspect of negligence is irrelevant based on the no fault liability principle, is erroneous and incorrect in the light of the settled law. In the light of the judgments mentioned above, the reliance placed by the counsel for the respondents on **United India Insurance Co. Ltd. v. Sunil Kumar** (supra), wherein it was held that in a proceeding under Section 163A of the Act it is not open for the insurer to raise any defence of negligence on the part of the victim, does not relate to the facts and circumstances of the case and is unsustainable. Consequently, the impugned Award will have to be set aside. 12. Faced with such an eventuality, the counsel for the respondents submits that he has an alternative contention. He submits that Ext.B1 policy which stands admitted by the Insurance Company, contains a personal accident cover for the owner – M.A.C.A.No.2818/2015 10 driver. By virtue of the same, the 1[st] respondent is entitled to an amount of Rs.1,00,000/- as Personal Accident (P.A.) cover, submits the counsel. The counsel for the appellant Insurance Company, fairly concedes that such a P.A. cover for Rs.1,00,000/is envisaged under Ext.B1 policy and that the benefits of the same would accrue to the 1[st] respondent. Since both sides are in unison regarding the P.A. cover and the quantum of compensation due thereunder, I find that the 1[st] respondent is entitled to the benefits flowing therefrom. In view of the above and for the reasons stated above, the present M.A.C.A. is partly allowed and the Award dated 20.01.2015 in O.P.(M.V.) No.1554 of 2006 on the file of the Motor Accidents Claims Tribunal, Neyyattinkara, is set aside. However, it is observed and held that the original claimant in the said O.P. (M.V.) shall be entitled to a sum of Rs.1,00,000/- (Rupees One Lakh Only) with interest @ 9 percent per annum from the date of the O.P. (M.V.) till realisation. In the facts and circumstances of the present case, there shall be no order as to costs. Sd/- **SYAM KUMAR V.M. JUDGE** csl