National Insurance Company Ltd vs Leelamma
2022 Latest Caselaw 1826 Ker

                      IN THE HIGH COURT OF KERALA AT ERNAKULAM


                                          PRESENT

                       THE HONOURABLE MRS. JUSTICE M.R.ANITHA

              FRIDAY, THE 18TH DAY OF FEBRUARY 2022 / 29TH MAGHA, 1943

                                  MACA NO. 1502 OF 2008

 AGAINST THE ORDER/JUDGMENT IN OP(MV) 695/2004 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,

                                         THODUPUZHA

APPELLANT/2ND RESPONDENT:

              NATIONAL INSURANCE COMPANY LTD.
              REP.BY ITS MANAGER,, 3RD PARTY WING, OMANA BUILDING, PADMA JUNCTION,
              KOCHI-35.

              BY ADV SMT.RAJI T.BHASKAR



RESPONDENTS/PETITIONERS 1 & 2 AND 1ST RESPONDENT:

      1       LEELAMMA, W/O. AUGUSTINE,

              AGED ABOUT 49 YEARS,

              RESIDING AT PALLIKUNNEL HOUSE,

              CHALASSERY KARA, EZHUMUTTOM P.O.,

              KARIMANNOOR VILLAGE

      2       NITHIN AUGUSTINE S/O.AUGUSTINE
              AGED ABOUT 27 YEARS,, -DO-

      3       P.C.AUGUSTINE S/O.CHACKO
              -DO-

              BY ADVS.
              SRI.K.J.JOSEMON
              SRI.MATHEW SKARIA
              SRI.C.M.TOMY




      THIS   MOTOR   ACCIDENT   CLAIMS    APPEAL    HAVING   COME   UP   FOR   ADMISSION   ON

17.01.2022, THE COURT ON 18.02.2022 DELIVERED THE FOLLOWING:
 M.A.C.A.No.1502/2008
                                            2


                                     JUDGMENT

1. This appeal has been directed against the award passed by the

Motor Accidents Claims Tribunal, Thodupuzha in O.P.

(M.V.)No.695/2004 by the insurer/2nd respondent. The claim

petition was filed by the respondents 1 & 2 for compensation

under Section 163A of the Motor Vehicles Act,1988 (in short, the

Act) out of the death of one Ann Mary Augustine @ Namitha.

The deceased was travelling on the pillion of motorcycle bearing

Reg. No.KL 7A/7482 ridden by the first respondent, the father of

the deceased. The accident occurred on the application of brake

by the rider to avoid the collision with a lorry proceeding from

the opposite direction, but it skidded and the pillion rider was

thrown to the road and thereby she sustained fatal injuries and

taken to Holy Family Hospital, Muthalakodam and further she

was referred to Medical Mission Hospital, Kolencherry and

thereafter to Medical Trust Hospital, Ernakulam and after two

days she succumbed to the injuries. It is alleged that the

accident happened due to the rash and negligent driving of the

motorcycle by the first respondent and the appellant/second M.A.C.A.No.1502/2008

respondent is the insurer of the motorcycle who is alleged to be

liable to make good the loss sustained to the claimants, the legal

heirs of the deceased. A total compensation of Rs.3,29,000/- was

claimed.

2. First respondent remained ex parte before the Tribunal. Second

respondent filed written statement admitting the insurance

coverage with respect to the motorcycle. But it is contended

that the policy was only an Act policy and as per the contract of

insurance the risk of the pillion rider is not covered and that the

compensation claimed is excessive and without any basis. RW1

examined from the side of the appellant/respondent. Exts.A1 to

A11 were marked from the side of the claimants. Ext.B1 and B2

and Ext.X1 were also marked. Thereafter on evaluating the

evidence adduced from either side the Tribunal allowed the

claim petition and awarded a sum of Rs.2,11,500/- with interest

at the rate of 8% per annum from 27.10.2004 i.e. the date of

filing the claim petition and the 3 rd respondent/1st respondent

and appellant/2nd respondent were held jointly and severally

liable.

3. The contention of the insurer - appellant is that Ext.B1 policy M.A.C.A.No.1502/2008

covers only personal accident coverage of two persons for

Rs.10,500/- each. Tribunal found that as per Ext.B1 additional

premium under Rule 64 of IMT has been collected for coverage

of pillion rider and in the case of pillion rider there is 100%

coverage as per Rule 64 of IMT and accordingly the insurer -

appellant was held liable.

4. Aggrieved by the finding and direction of the Tribunal making

the appellant/2nd respondent jointly and severally liable with the

third respondent/first respondent, (hereinafter called as owner

of vehicle), the insurer (hereinafter called as appellant), came

up in appeal before this Court.

5. Notice was issued to the respondents and respondents appeared

through counsel. Lower court records were called for and

perused. Both sides were heard.

6. It is contended by the learned counsel for the appellant that the

deceased was pillion rider on the motorcycle ridden by the

owner of the vehicle and the accident happened due to the rash

and negligent riding of the motorcycle by the owner of the

vehicle. The policy of insurance issued with respect to the

vehicle did not cover the risk of the pillion rider except for M.A.C.A.No.1502/2008

Rs.10,500/-. Inspite of the specific contention raised by the

appellant in absolute disregard of settled position of law the

Tribunal held the appellant liable to pay the compensation.

7. In this context the learned counsel placed reliance on Oriental

Insurance Company Ltd v. Jhuma Saha (Smt) & Ors. [(2007) 9

SCC 263]. That appeal was directed against judgment and

order of the Gauhati High Court, wherein the appeal preferred

by the appellant - Insurance Company was dismissed. The

deceased in that case was the owner of an insured vehicle while

he was driving that vehicle, in order to save a goat which was

running across the road, the steering of the vehicle failed and it

dashed against a tree on the road side and later he succumbed

to the injuries sustained and a claim petition was filed for

compensation under Section 166 of the Motor Vehicles Act,

1988. The Insurance Company raised a contention that as per

the Motor Vehicles Act and Rules the owner is not entitled to get

any compensation if he drives the vehicle and falls in an

accident since the insurance policy is third party insurance. The

Tribunal found that since the vehicle was insured and additional

premium for the death of the driver or conductor has been paid, M.A.C.A.No.1502/2008

the liability is covered by the insurance policy. The appeal filed

against it before the High Court was dismissed as not

maintainable and the matter was taken up before the Apex

Court and the contention raised was that in view of Section 147

of the Act the jurisdiction of the Tribunal is confined to a third

party claim and hence the impugned judgment cannot be

sustained. In that decision Dhanraj v. New India Assurance Co.

Ltd & Anr. [(2004) 8 SCC 533] was quoted in paragraph 12,

which reads as follows:

"8. Thus, an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an 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 Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle.

* * *

10. In this case, it has not been shown that the policy covered any risk for injury to the owner himself. We are unable to accept the contention that the premium of Rs. 4989 paid under the heading "Own damage" is for covering liability towards personal injury. "Under the heading "Own damage", the words "premium on vehicle and non-electrical accessories" appear. It is thus clear that this premium is towards damage to the vehicle and not for injury to the person of the owner. An owner M.A.C.A.No.1502/2008

of a vehicle can only claim provided a personal accident insurance has been taken out. In this case there is not such insurance."

8. In that case finding that no additional premium was paid in

respect of the entire risk of the death or bodily injury of the

owner of the vehicle under Section 147(b) of the Act which

specifically covers the risk of third party only was taken note of

and hence appeal was allowed and the order passed by the

Tribunal making the insurance company liable was set aside.

9. The learned counsel for the appellant further relies on United

India Insurance Co. Ltd v. Tilak Singh & Ors [(2006) 4 SCC 404].

In that case, while dealing with Section 147 of the Act and third

party risk it was held that liability of insurer to pay

compensation with respect to a gratuitous passenger carried in

a private vehicle, that policy under Section 147 does not cover

such a risk. The question arose in that case was whether a

statutory insurance policy under the Act, 1988 intended to cover

the risk to life or damage to properties of third parties, would

cover the risk of death or injury of a gratuitous passenger

carried in a private vehicle. In that case it has been

categorically held that unless there was a specific coverage of M.A.C.A.No.1502/2008

the risk pertaining to gratuitous passengers in the policy, the

insurer was not liable.

10. In paragraph No.20 of the above decision, paragraphs 25

and 27 of the decision in New India Assurance Co.Ltd v. Asha

Rani (2003 (2) SCC 223), have been quoted, which read thus :-

"The view expressed in Satpal Singh case however, has been specifically overruled in the subsequent judgment of a Bench of three Judges in New India Assurance Co. Ltd v. Asha Rani.

In that case the discussion arose in connection with carrying passengers in a goods vehicle. This Court after referring to the terms of Section 147 of the 1988 Act, as contrasted with Section 95 of 1939 Act, held that the judgment in Satpal Sing case had been incorrectly decided and that the insurer will not be liable to pay compensation. In that concurring judgment of Sinha, J. after contrasting the language used in the 1939 Act with that of the 1988 Act, it has been observed (vide SCC p.235 paras 25 and 27)

25. Section 147 of the 1988 Act, inter alia, prescribes compulsory coverage against the death of or bodily injury to any passenger of 'public service vehicle'. Proviso appended thereto categorically states that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in a goods vehicle would be limited to the liability under the Workmen's Compensation Act. It does not speak of any passenger in a 'goods carriage' * * * M.A.C.A.No.1502/2008

27. Furthermore, sub-clause (I) of clause (b) of sub-section (1) of Section 147 speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place, whereas sub-clause (ii) thereof deals with liability which may be incurred by the owner of a vehicle 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."

11. Hence ultimately the contention of the insurance company

that it owed no liability towards the injuries suffered by the

gratuitous passengers as the insurance policy was a statutory

policy and hence it did not cover the risk of death of or bodily

injury to gratuitous passenger was upheld. Hence the Award

making the insurance company liable was set aside and held

that company is not liable to pay compensation awarded to the

claimants.

12. The learned counsel also drew my attention to Mini V. v.

Gireeshkumar [2016 (4) KLT 219]. In that case also the liability

of Insurance company was limited to the extent to which

additional premium was collected with respect to the owner of

motorcycle.

M.A.C.A.No.1502/2008

13. The learned counsel for the appellant drew my attention to

Ext.B1 certified copy of the policy of insurance issued with

respect to the offending vehicle. The learned counsel also

highlighted that the basic premium accepted is Rs.77/- and an

amount of Rs.15.75 is further collected for P A pass and an

amount of Rs.50/- is collected towards third party and it is

specifically stated as unlimited and a net premium of Rs.143/-

along with service tax of Rs.7/-, a total amount of Rs.150/- has

been collected. So according to the learned counsel for the

appellant the policy issued with respect to this vehicle is only an

Act policy and that is borne out from the first page of Ext.B1

itself. The learned counsel for the respondents on the other

hand would contend that there is specific endorsement of IMT

endorsement Nos.64, 70 and 71 on the policy which according

to him indicates coverage of persons coming under Rule 64, 70

and 71 of India Motor Tariff Rules and that is the indication of

the above in Ext.B1. But RW1 the Administrative Officer of the

appellant - insurance company was examined from the side of

the respondent. He produced Ext.B2, which is the relevant page

of the India Motor Tariff. He would also depose that as per M.A.C.A.No.1502/2008

Ext.B1 P.A. Coverage is Rs.10,500/- each for two persons and the

premium of Rs.15.75 has been collected on that account. He

would also depose that as per sheet No.26 of Ext.B2 that Ext.B1

has been issued. During cross examination it was brought out

that in Ext.B1 premium was collected based on IMT 70+71 and

further that no amount was collected as per IMT 64. IMT 70 as

per Ext.B2 deals with Increase in the Limits of Liability of

Property Damage and it is also made clear that it is applicable to

"B" policies only and limited P.A coverage and IMT 71 states

about the Limited P.A. Cover to drivers (other than paid

drivers). So the endorsement 70 & 71 in Ext.B1 would only

indicate the collection of premium of Rs.15.75 with respect to

P.A. Cover of two persons and the coverage is also specified as

Rs.10,500/-. Ext.B1 further makes it clear that it is only an Act

only policy and additional premium has been collected with

respect to two persons limiting the liability of the company upto

Rs.10,500/- each. So, the deceased, being a pillion rider, as per

the settled position of law above discussed, the liability of the

insurer would be limited to Rs.10,500/-.

14. Section 147 (1)(b) of the Act specifically provides that a policy of M.A.C.A.No.1502/2008

insurance insures persons or classes of persons specified in the

policy to the extent specified in sub-section (2). Section 147(1)

(b)(i) specifically provides that the policy of insurance is against

any liability which may be incurred by insured in respect of the

death of or bodily injury to any person including owner of the

goods or his authorized representative carried in the motor

vehicle or damage to any property of a third party caused by or

arising out of the use of the motor vehicle in a public place.

Section 147 (2) of the Act starts with non-obstante clause and

provides that for the purpose of third party insurance related to

either death of a person or grievous hurt to a person, the

Central Government shall prescribe a base premium and the

liability of an insurer in relation to such premium for an

insurance policy under sub-section (1) in consultation with the

Insurance Regulatory and Development Authority.

15. Ext.B1 also would reveal that only for third party liability it is

specifically stated as unlimited and P.A cover with respect to

two persons is limited to Rs.10,500/- each. Ext.B1 also make it

clear that it is only an Act only policy. So as has been held in

Jhuma Saha's case referred above since no additional premium M.A.C.A.No.1502/2008

has been paid by the insured for covering the risk of the pillion

rider except to the extent of Rs.10,500/- since the accident

happened due to the negligence of the rider of the motorcycle,

the owner, the pillion rider will not be entitled to get any amount

than has been agreed as per the contract of insurance. It is to be

noted that in Jhuma Saha's case the owner himself was driving

the vehicle and due to his negligence the vehicle dashed against

a tree and as a result of which he died. Finding that Section

147(1)(b) covers only third party risk the liability of the

insurance company with respect to the claim of the owner was

negatived by the Apex Court. The situation is identical to the

case in hand. Hence, the award passed by the Tribunal making

the appellant/2nd respondent jointly and severally liable to the

compensation awarded less Rs.10,500/- for which the appellant

is liable, is liable to be set aside.

16. In the result, appeal allowed in part and the liability of the

appellant - insurer is limited to the extent of Rs.10,500/- as

covered by Ext.B1 and for the rest of the amount the third

respondent - owner cum rider of the motorcycle is held liable.

So the award passed by the Tribunal is modified to the above M.A.C.A.No.1502/2008

extent. In all other aspects, the Award passed by the Tribunal is

hereby confirmed.

Sd/-

M.R.ANITHA

JUDGE

shg