United India Insurance Co. Ltd. v. Sindhu Mathew and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 24[TH] DAY OF NOVEMBER 2021 / 3RD AGRAHAYANA,** **1943** **MACA NO. 1877 OF 2010** **AGAINST THE AWARD IN O.P(M.V) 1427/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM** ## **APPELLANT/5TH RESPONDENT:** UNITED INDIA INSURANCE CO.LTD. PONKUNNAM. BY ADV RAJAN P.KALIYATH ## **RESPONDENTS/PETITIONERS & 1ST RESPONDENT:** 1 SINDHU MATHEW, W/O.LATE ARUN JACOB MATHEW, A-18, NELLICKAL (H), INDIRA NAGER, DEVALOKAM P.O., MUTTAMBALAM,, KOTTAYAM. 2 JOSH MATHEW (MINOR), REPRESENTED BY HIS MOTHER SINDHU MATHEW OF DO. DO. 3 JOYAL MATHEW (MINOR), REPRESENTED BY HIS MOTHER SINDHU MATHEW OF DO. DO. 4 JOJO JOHN KUZHIMULLIL, PLOT NO.1, KAMARAJ SALAI, PONDICHERY AND NOW RESIDING AT KUZHIMUTTIL (H), PUNNATHURA EAST P.O., ETTUMANOOR. BY ADVS. SRI.C.DILIP SRI.SUJITH MATHEW JOSE SRI.P.K.MANOJ KUMAR, SC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A No.1877 of 2010** 2 ## **JUDGMENT** Award dated 31.12.2009 in O.P.(M.V) No.1427/2006 on the file of the Motor Accidents Claims Tribunal, Kottayam is the crux of this appeal at the instance of the 2[nd] respondent, the insurer. 2. The petitioners as well as the 1[st] respondent are the respondents herein. 3. Heard both sides. 4. The petition averments are as follows: On 02.10.2005 at about 3:00 P.M., the deceased Arun Jacob Mathew was driving a Scorpio car bearing registration No.PY 01/AC 4311 through Pala-Ettumanoor road from west to east, he met with an accident. According to the appellants when the Scorpio reached near Kismathpadi junction all on a sudden the vehicle over turned. As a result, the above said Arun Jacob Mathew sustained serious ## **M.A.C.A No.1877 of 2010** 3 injuries. Though he was immediately given medical aid, he succumbed to the injuries. Since the accident occurred due to the negligent driving of the above said Arun Jacob Mathew the appellants herein filed application under Section 163A and canvassed compensation to the tune of Rs.6 lakh from the insurer. 5. The appellant/original 2[nd] respondent/ insurer filed written statement admitting insurance coverage to the Scorpio bearing registration no.PY 01/AC 4311 and disputed liability on the ground of absence of driving licence to the driver. Liability to pay compensation to the deceased was disputed. 6. The 1[st] respondent also filed written statement admitting the accident while disputing negligence on the part of Arun Jacob Mathew, who had driven the Scorpio at the time of accident. Policy issued by the 2[nd] respondent to the Scorpio was highlighted. 7. The Tribunal recorded evidence ## **M.A.C.A No.1877 of 2010** 4 confining to Exts.A1 to A5 on the part of the appellants and Exts.B1 to B6 on the part of the 2[nd] respondent. Finally the Tribunal awarded Rs.3,94,500/- under the principle of no fault. 8. While assailing the legality of the award impugned, it is submitted by the learned counsel for the Insurance Company, the appellant, that the petitioner himself had driven this Scorpio bearing registration no.PY.01/AC 4311 at the time of accident and thereby, he stepped into the shoes of the owner and as such his liability cannot be entertained by the Insurance Company under Section 147 of Motor Vehicles Act in a claim under Section 163A of the Motor Vehicles Act based on the principles of no fault liability since the above said Arun Jacob Mathew is not a third party. Though this legal position is not so strongly disputed by the learned counsel for the claimants, he pointed out that Ext.B5 policy in this case covers the risk of owner- ## **M.A.C.A No.1877 of 2010** 5 cum-driver to the tune of Rs.2 lakh and as such the liability of the Insurance Company to be limited to the extent of Rs.2 lakh. 9. Going by the case records, it appears that the 1[st] respondent also filed written statement before the Tribunal and virtually admitted the status of Arun Jacob Mathew as the driver, who had driven the Scorpio at the time of accident though his negligence in the strict sense has been denied. 10. It is submitted by the learned counsel for the Insurance Company that Ext.A3 police charge was also against the deceased Arun Jacob Mathew. It is submitted by the learned counsel for the appellant further that as early in the year 2009, the Honourable Apex Court considered this issue in the decision reported in _**Ningamma**_ _**& Another v. United India Insurance Co. Ltd.**_ **:** **(2009) 13 SCC 710** and it was held that when the vehicle is used by persons authorised to do so ## **M.A.C.A No.1877 of 2010** **==> picture [7 x 9] intentionally omitted <==** by the owners, either expressly or impliedly, except in cases where the users are paid employees of the owners, they would step into the shoes of the owner and thereby they could not be categorised as third parties. It is submitted further by the learned counsel for the appellant that the ratio has been followed by this Court in the decisions reported in _**Sasikala v. Aji Kumar**_ **: 2019 (4) KLT 117** and _**Jiljet v. Stamphen George**_ **: 2019 (1) KLT 546.** 11. In a recent decision of the Honourable Supreme Court reported in _**Ramkhiladi v. United India Insurance Company**_ **: AIR 2020 SC 527,** the liability of the Insurance Company under Section 163A was considered in the context of _**Ningamma's**_ case (supra) and in paragraph 5.6 of the judgment, the Honourable Supreme Court observed as under: _5.6 In view of the above and for the reasons stated above, in the present case, as the claim under_ 7 ## **M.A.C.A No.1877 of 2010** _Section 163A of the Act was made only against the owner and insurance company of the vehicle which was being driven by the deceased himself as borrower of the vehicle from the owner of the vehicle and he would be in the shoes of the owner, the High Court has rightly observed and held that such a claim was not maintainable and the claimants ought to have joined and/or ought to have made the claim under Section 163A of the Act against the driver, owner and/or the insurance company of the offending vehicle i.e. RJ 29 2M 9223 being a third party to the said vehicle._ 12. In the instant case, in the written statement filed by the Insurance Company/ appellant liability to pay compensation was disputed though in so many words, it is not pleaded that the original petitioner stepped into the shoes of the owner as he had borrowed the motorcycle from the owner. However, on reading the original petition, the job of Arun Jacob Mathew is stated as construction worker ## **M.A.C.A No.1877 of 2010** 8 earning Rs.3,000/- per month. The said contention would go to show that the above said Arun Jacob Mathew was driving the Scorpio not either as driver or paid employee of the owner. In _**Ningamma's**_ case (supra) and _**Sasikala's**_ case (supra) when the vehicle is used by a person authorised to do so by the owner, either expressly or impliedly, the said person would step into the shoes of the owner, except in cases when the users are paid employees of the owner. Here, impliedly Arun Jacob Mathew to be held as a person who borrowed the vehicle from the owner and thereby his status to be held as a person who stepped into the shoes of the owner and not that of a third party. In view of the settled legal proposition as aforesaid, I have no hesitation to hold that the Insurance Company has no liability to indemnify the insured in a claim under Section 163A where the driver/rider stepped into the shoes of owner/insured and his status is not that of a ## **M.A.C.A No.1877 of 2010** **==> picture [7 x 9] intentionally omitted <==** 'third party'. Thus the contention raised by the learned counsel for the original petitioner can only be dispelled. 13. In view of the matter, the award passed by the Tribunal fastening liability upon the Insurance Company, the appellant/2[nd] respondent, cannot sustain, as such the same is liable to be set aside. 14. However, it is argued by the learned counsel for the original petitioners that in _**Ramkhiladi's**_ case (supra), the Honourable Supreme Court granted Rs.1 lakh to the legal heirs/claimants of the driver under personal accident coverage in terms of the contract of insurance. On perusal of the judgment in paragraph no.5.8 such finding could be gathered. Therefore, the Insurance Company, who had collected premium to cover the risk of owner-cum-driver to the tune of Rs.2 lakh, is bound to pay the said sum and this legal position is not opposed by the learned counsel ## **M.A.C.A No.1877 of 2010** **==> picture [13 x 9] intentionally omitted <==** for the Insurance Company also since collection of Rs.100/- as premium to cover compulsory personal accident coverage to owner-cum-driver for an amount of Rs.2 lakh could be gathered from Ext.B5 copy of policy produced by the side of the appellant. 15. In the result, the appeal is allowed. The award is set aside insofar as the same, fastened liability upon the 2[nd] respondent, Insurance Company holding the status of Arun Jacob Mathew as a third party. However, the Company is liable to compensate Rs.2 lakh under the personal accident coverage and, therefore, it is held that Rs.2 lakh covered by the total award amount Rs.3,94,500/- shall be paid by the 2[nd] respondent, Insurance Company, the appellant herein along with interest at the rate of 7% per annum, from the date of the petition till the date of deposit or realistation. The claimants can very well release the remaining amount Rs.1,94,500/- from the 1[st] respondent. ## **M.A.C.A No.1877 of 2010** **==> picture [12 x 9] intentionally omitted <==** **==> picture [309 x 13] intentionally omitted <==** compensation, I am not inclined to address the same since the said aspect is not pressed into by the learned counsel for the appellant. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww