United India Insurance Co. Ltd. v. Mathai @ Mathachan and Swapna Mathew

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **WEDNESDAY, THE 11TH DAY OF DECEMBER 2019 / 20TH AGRAHAYANA, 1941** ## **MACA.No.928 OF 2014 (A)** **AGAINST THE AWARD IN O.P.(MV) NO.256/2010 DATED 18-12-2013 OF DISTRICT COURT & SESSIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL, WAYANAD, KALPETTA** ## **APPELLANT/2ND RESPONDENT IN THE O.P.(MV):** **THE UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, NOORANAl BUILDING, CHUNGAM, SULTHAN BATHERY, REPRESENTED BY ASST. MANAGER, OFFICE OF THE REGIONAL MANAGER, UNITED INDIA INSURANCE CO.LTD., HOSPITAL ROAD, ERNAKULAM.** **BY ADV. SMT.DEEPA GEORGE** ## **RESPONDENTS/PETITIONER AND 1ST RESPONDENT IN THE O.P.(MV):** - **1 MATHAI @ MATHACHAN, AGED 53, S/O.MATHAI, MAVELIPUTHENPURAYIL HOUSE, PERIKKALLOOR P.O., PULPALLY, WAYANAD.** **2 SWAPNA MATHEW D/O.MATHAI, MAVELIPUTHENPURAYIL HOUSE, PERIKKALLOOR P.O., PULPALLY, WAYANAD. (OWNER OF KL 12B-7680 MARUTI VAN).** **BY ADVS. SRI.A.V.JAMES SMT. NAZEERA S.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.928 OF 2014 (A) 2 ## JUDGMENT The appellant/2[nd] respondent insurance company preferred the present appeal against the award of the Motor Accidents Claims Tribunal, Wayanad, Kalpatta, in OP(MV) No.256 of 2010, dated 18.12.2013. The respondents herein are the petitioner and 1[st] respondent in the OP(MV). The original petition was filed seeking compensation on account of the injury sustained by him in a motor accident, on 10.08.2009, while driving a Maruthi Van bearing registration No.KL-12/B-7680, a cow crossed the road and on swerving the vehicle to a side, it hit on an electric post and sustained injuries. 2. The only point to be considered in this case is whether the registered owner of the vehicle, which hit to an electric post while swerving the car in the above said manner, can claim compensation under Section 163 A of the Motor Vehicles Act or not. 3. Smt. Deepa George, the learned counsel for the petitioner submitted that it is a case where the claimant, while driving the car, owned by the 1[st] MACA.No.928 OF 2014 (A) 3 respondent, had hit on an electric post when a cow ran across the road. In the result, he suffered injuries. 4. The aforementioned claim was objected by the respondents and framed following issues: - “1 Whether the claimant is entitled to get compensation and if so, what is the quantum? - 2 Who is liable? - 3 Reliefs and costs? - 4 Whether the petition is maintainable? (Additional issue)” 5. Without noticing the case law on the point, the Tribunal awarded an amount of Rs.2,62,192/- and directed to deposit the compensation amount along with 7.5% interest. 6. Smt. Deepa George, the learned counsel for the insurance company, submitted that the aforementioned liability cannot be enforced in view of the law laid down by the Hon'ble Supreme Court in Ningamma & Anr. v. United India Insurance Co. Ltd. [AIR 2009 SC 3056] and also in Jiljet and Another v. Stamphen George and Others [2018 (5) KHC 206]. Counsel for the claimant could not dispute the decision of the law. She also points out that there is an interim order dated MACA.No.928 OF 2014 (A) 4 27.05.2014, issued by this Court directing the petitioner to deposit half of the award amount before the Tribunal within one month from the date of the order. But there cannot be any liability of a single paise. 7. I have heard the learned counsel for the parties. The law in regard to the claim under Section 163 A, in respect of a car owned by him or a friend, deemed to have been stepped into his shoes. Even if the policy is comprehensive it cannot be a third party compensation under Section 163 A of the Motor Vehicles Act. Paragraph Nos.18,19 & 20 in Ningamma & Anr. v. United India Insurance Co. Ltd. are reproduced herein. “18. In the case of Oriental Insurance Company Ltd. v. Rajni Devi and Others, (2008) 5 SCC 736, wherein one of us, namely, Hon'ble Justice S.B. Sinha is a party, it has been categorically held that in a case where third party is involved, the liability of the insurance company would be unlimited. It was also held in the said decision that where, however, compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the claimant against the insurance company would depend upon the terms thereof. It was held in the said decision that Section 163A of the MVA cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved. The decision further held that the question is no longer res integra. The liability under section 163-A of the MVA is on the owner of the vehicle. So a person cannot be both, a claimant as also a recipient, with respect to claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163-A of the MVA. In our considered opinion, MACA.No.928 OF 2014 (A) 5 the ratio of the aforesaid decision is clearly applicable to the facts of the present case. In the present case, the deceased was not the owner of the motorbike in question. He borrowed the said motorbike from its real owner. The deceased cannot be held to be employee of the owner of the motorbike although he was authorised to drive the said vehicle by its owner, and therefore, he would step into the shoes of the owner of the motorbike. 19.We have already extracted Section 163-A of the MVA hereinbefore. 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 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. 20.When we apply the said principle into the facts of the present case we are of the view that the claimants were not entitled to claim compensation under Section 163-A of the MVA and to that extent the High Court was justified in coming to the conclusion that the said provision is not applicable to the facts and circumstances of the present case. However, the question remains as to whether an application for demand of compensation could have been made by the legal representatives of the deceased as provided in Section 166 of the MVA. The said provision specifically provides that an application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made by the person who has sustained the injury; or by the owner of the property; or where death has resulted from the accident, by all or any of the legal representatives of the deceased; or by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be. When an application of the aforesaid nature claiming compensation under the provisions of Section 166 is received, the Tribunal is required to hold an enquiry into the claim and then proceed to make an award which, however, would be subject to the provisions of Section 162, by determining the amount of compensation, which is found to be just. MACA.No.928 OF 2014 (A) 6 Person or persons who made claim for compensation would thereafter be paid such amount. When such a claim is made by the legal representatives of the deceased, it has to be proved that the deceased was not himself responsible for the accident by his rash and negligent driving. It would also be necessary to prove that the deceased would be covered under the policy so as to make the insurance company liable to make the payment to the heirs. In this context reference could be made to relevant paras of Section 147 of the MVA which reads as follows:- 147. Requirements of policies and limits of liability(1) In order to comply with the requirement of this Chapter, a policy of insurance must be a policy which- (a) is issued by a person who is an authorised insurer; or (b) insurer the person or classes of persons specified in the policy to the extent specified in subsection (2)- (i) against any liability which may be incurred by him in respect of the death of or bodily [injury to any person, including 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 a public place; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place: Provided that a policy shall not be required- (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of his death of, or bodily injury to, any such employee- (a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or (c) if its is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability. X x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:- (a) save as provided in clause (b), the amount of MACA.No.928 OF 2014 (A) 7 ## liability incurred; (b) in respect of damage to any property of a third party, a limit of rupees six thousand: Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier. X x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.” 8. In such circumstances, the finding of the Tribunal in fastening the liability on the insurance company is hereby set aside. However, the claimants are entitled to claim the compensation against the 1[st] respondent. In the result, the appeal stands allowed. The amount of Rs.25,000/- deposited shall be refunded to the insurance company and similarly the amount of Rs.50,000/- deposited is also ordered to be refunded to the appellant, along with interest, if any. Sd/- AMIT RAWAL, JUDGE Skk//191219 MACA.No.928 OF 2014 (A) 8 The Judgment dated 11/12/2019 in MACA 928/2014 is modified as per order dated 12/07/2021 in IA 1/2020 in the MACA as follows: “ The word and figure '` 50,000/-' occurring in line 4 of the last paragraph on page 7 of the judgment is treated as 50% of the deposited amount, along with any interest in case the amount was lying in any Fixed deposit.” Sd/Deputy Registrar