The National Insurance Co. Ltd vs Shibi Mohanan
2022 Latest Caselaw 32 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
             THE HONOURABLE MR. JUSTICE T.R.RAVI
   MONDAY, THE 3RD DAY OF JANUARY 2022 / 13TH POUSHA, 1943
                       MACA NO. 1092 OF 2016
   AGAINST THE AWARD IN OPMV 328/2014 DATED 01.01.2016 OF
  ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL II, THODUPUZHA


APPELLANT/2ND RESPONDENT:

          THE NATIONAL INSURANCE CO. LTD.
          ERNAKULAM,
          REPRESENTED BY ITS DEPUTY MANAGER,
          REGIONAL OFFICE, 2ND FLOOR,
          OMANA BUILDING, M.G.ROAD, KOCHI 35.
          BY ADVS.
          SRI.GEORGE CHERIAN (SR.)
          SMT.LATHA SUSAN CHERIAN
          SMT.K.S.SANTHI


RESPONDENT/CLAIMANT:

          SHIBI MOHANAN
          W/O.MOHANAN, THALACHIRAYIL HOUSE,
          DEEPTHI NAGAR, CHATTUPARA,
          ADIMALI PO,
          MANNAMKANDAM VILLAGE,
          PIN 685 561.
          BY ADV SRI.P.CHANDY JOSEPH
          SRI.C.K.VIDHYASAGAR


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 23.12.2021, THE COURT ON 03.01.2022
DELIVERED THE FOLLOWING:
 M.A.C.A. No.1092 of 2016
                                       2




                             T.R. RAVI, J.
              --------------------------------------------
                       M.A.C.A.No.1092 of 2016
               --------------------------------------------
                Dated this the 3rd day of January, 2022

                                   JUDGMENT

The car driven by the respondent's husband met with an

accident. The car belonged to the respondent and she is the

insured. The respondent sustained serious injuries. In the claim

petition filed by the respondent, the Tribunal awarded a

compensation of Rs.1,92,380/-. The 2nd respondent insurer has

filed the appeal challenging the award on the ground that the

Insurance Company cannot be held liable.

2. Heard Sri George Cherian, Senior Advocate, instructed

by Smt.K.S.Santhi on behalf of the appellant and

Sri C.K.Vidyasagar on behalf of the respondent.

3. The facts are not in dispute. The accident happened on

12.1.2014. The respondent/owner of the vehicle was travelling

along with her husband, who was driving the car. The main

contention of the appellant is that the respondent cannot be

treated as a third party and is hence not covered under Section

147 of the Motor Vehicles Act.

4. The counsel for the appellant referred to Section 147 of M.A.C.A. No.1092 of 2016

the Motor Vehicles Act, 1988 to contend that what is covered by

the policy is only the liability of the insured by reason of death of

or bodily injury to any person including the owner of goods carried

in the vehicle, which will not include the insured himself. The

counsel relied on the decisions in Oriental Insurance Co. Ltd. v.

Sony Cherian reported in [(1999) 6 SCC 451], Dhanraj v.

New India Assurance Co. Ltd. reported in [2004 (3) KLT

813], Oriental Insurance Co. Ltd. v. Smt. Jhuma Saha & Ors.

reported in [(2007) 9 SCC 263], Oriental Insurance Co. Ltd.

v. Rejni Devi & Ors. reported in [2008(4) KLT 145], Oriental

Insurance Co.Ltd. v. Sudhakaran K.V. & Ors. reported in

[(2008) 7 SCC 428], United India Insurance Co. Ltd. v.

Vijayarajan & Ors. reported in [2009 (3) KHC 158],

Bhagyalakshmi & Ors. v. United Insurance Co. Ltd. & Anr.

reported in [(2009) 7 SCC 148], Oriental Insurance Co Ltd v.

K.T.Devassia & Anr. reported in [2011 (2) KLT 53], National

Insurance Co. Ltd. v. Balakrishnan & Ors. reported in [(2013)

1 SCC 731], Ramkhiladi & Anr v. United India Insurance

Co.Ltd & Anr. reported in [(2020) 2 SCC 550] in support of his

contentions.

5. In Sony Cherian (supra), it was held that the terms of

the policy should be strictly construed. In Dhanraj (supra), it was M.A.C.A. No.1092 of 2016

held that the insurance policy only covers the liability of the

insured and that the company need not take over the liability for

the death or injury to the owner/insured. In Jhuma Saha (supra)

it was held that the insurer cannot be held liable in a case where

an owner/driver dies in an accident for which he himself was

responsible. In Rejni Devi (supra) it was held that the legal heirs

of a deceased owner/insured cannot maintain a claim against the

Insurance Company. In Sudhakaran (supra) it was held that the

pillion rider who is a gratuitous passenger is not covered by a

personal accident policy covering the owner. In Vijayaraj (supra)

a Division Bench of this Court held that the owner/driver policy

covers only the driver who is also the owner of the vehicle. In

Bhagyalakshmi (supra) the issue whether a gratuitous

passenger or pillion rider is covered was referred to a Larger

Bench. In Devassia (supra) it was held that the owner alone is

covered by the personal accident cover. In Balakrishnan (supra),

the Apex Court after noticing that the issue regarding gratuitous

passenger and pillion rider was referred to a Larger Bench, in view

of the circulars issued thereafter by the IRDA, held that in the case

of a comprehensive/package policy, the occupants in a car are also

covered. In Ramkhiladi (supra), the Apex Court held that in

order to be covered, the deceased has to be a third party and that M.A.C.A. No.1092 of 2016

the claim against the owner and insurer of the vehicle which was

being driven by the deceased will not be maintainable. The counsel

for the respondent relied on the decision in National Insurance

Co.Ltd. v. Krishnan reported in [2014 KHC 5694], in which the

Madras High Court had taken a view that the expression owner-

cum-driver cannot be split up in order to make the policy

enforceable only if the driver is also the owner and held that once

an occupant in a car is covered, as laid down in Balakrishnan

(supra), necessarily the owner who is travelling as an occupant is

also covered, when he has taken a personal accident cover.

6. In a recent judgment in Vasuki v. Santhi in Civil

Appeal No.6257-6258 of 2021, the Hon'ble Supreme Court has

reversed the judgment of this Court in M.A.C.A.No.84 of 2016. In

the said case the Tribunal had granted compensation to the legal

representatives of the deceased driver, who was none other than

the husband of the insured. But in appeal, this Court had held that

the Insurance Company was not liable. The Hon'ble Supreme Court

held that the Insurance Company was liable to pay the

compensation. The Court has drawn a distinction from the decision

in Ramkhiladi (supra) on facts and held that on the facts there

was nothing to show that the liability of the Insurance Company

was limited.

M.A.C.A. No.1092 of 2016

7. In the case on hand, the policy in question is a private

package policy, in which additional premium has been paid for

personal accident coverage of the owner. There can be no dispute

with regard to the propositions laid down in Balakrishnan

(supra) as well as in Ramkhiladi (supra). All that the Hon'ble

Supreme Court has held is that in the case of a package policy the

liability of the insured which is covered by the insurance policy, will

cover the pillion rider as well as the occupants in a car. The

judgment can only be understood to mean that the insured will

stand indemnified towards his/her liabilities. That will not by itself

oblige the insurer to compensate the injuries that may be

sustained by the owner, who is either driving or travelling as a

pillion rider or as an occupant. Such an obligation will arise only if

there is a personal accident coverage offered in the policy, on

payment of additional payment. Even in such cases, the liability of

the insurer is only as spelt out in the contract between the owner

and the insurer (insurance policy). Ext.B1 policy clearly shows that

additional premium of Rs.100/- has been paid towards compulsory

personal accident cover. Section III of the policy dealing with

personal accident cover for owner-driver says that the company

undertakes to pay compensation not exceeding Rs.2 lakhs in cases

of the four types of injuries detailed therein. It is seen that in M.A.C.A. No.1092 of 2016

cases of death, (or) loss of two limbs or sight of two eyes or one

limb and sight of one eye, (or) permanent total disablement from

injuries other than above, the liability of the insurer is 100% of the

total cover i.e. Rs.2 lakhs. The only other coverage is regarding

loss of one limb or sight of one eye, in which case the coverage is

for 50% i.e. Rs.1 lakh. It is specifically stated that the liability to

compensate shall be only with respect to the enumerated injuries.

Admittedly, the respondent has not sustained any of the injuries

that have been enumerated in the policy, regarding the personal

accident coverage that has been extended on the basis of the

additional premium. It is settled law that this court cannot rewrite

the contract between the parties and make the insurer liable to

compensate for injuries that they have not undertaken to

compensate under the contract between the parties. On the facts

of the case, the order passed by the Apex Court in Vasuki

(supra) will also not apply.

In the result, the appeal is allowed and the award passed by

the Tribunal is set aside.

Sd/-

T.R. RAVI JUDGE

dsn