The Oriental Insurance Co. Ltd vs Vijayakumaran Nair
2024 Latest Caselaw 11842 Ker

Kerala High Court

The Oriental Insurance Co. Ltd vs Vijayakumaran Nair on 3 May, 2024

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
        THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
  FRIDAY, THE 3RD 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 3rd 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 2nd respondent in the O.P.(M.V.) viz., the

Insurance Company is the appellant herein. The claim was filed by

the 1st 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 1st 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

to the said accident.

3. Proceedings before the Tribunal:

The owner of the motorcycle, the 2nd respondent in the

MACA, was the 1st respondent in the O.P.(M.V.). He remained ex-

parte. 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

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 3rd party. It follows that a rider who rides the

motorcycle after borrowing it from the insured, will step into

the shoes of the insured.

# The 1st 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 1st 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

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 1st 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 2nd 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

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

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.

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 1st 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 -

driver. By virtue of the same, the 1st 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 1st respondent. Since both sides are in unison

regarding the P.A. cover and the quantum of compensation due

thereunder, I find that the 1st 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