Kerala High Court
The New India Assurance Company Limited vs Vijesh A.P on 17 February, 2025
MACA No.2849 of 2021 1
2025:KER:12973
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
MONDAY, THE 17TH DAY OF FEBRUARY 2025 / 28TH MAGHA, 1946
MACA NO. 2849 OF 2021
AGAINST THE AWARD DATED 18-06-2021 IN OPMV NO.791 OF
2019 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY.
APPELLANT/RESPONDENT NO.2 :
THE NEW INDIA ASSURANCE COMPANY LIMITED,
THALASSERY, REP. BY THE ASSISTANT MANAGER,
REGIONAL OFFICER, M.G. ROAD ERNAKULAM, 682 011.
BY ADVS.
LAL K.JOSEPH
SURESH SUKUMAR
ANZIL SALIM
RESPONDENTS/PETITIONER AND RESPONDENTS NO.1 :
1 VIJESH A.P, S/O. SANKARAN, RESIDING AT
AYYANIPOYIL HOUSE, TRIPANGOTTUR AMSOM,
KADAVATHUR (P.O.), THALASSERY,
KANNUR DISTRICT(CLAIMANT), PIN- 670 676.
2 RAJEESH A., S/O. SANKARAN, RESIDING AT
AYYANIPOYIL HOUSE, TRIPANGOTTUR AMSOM,
KADAVATHUR (P.O.), THALASSERY,
KANNUR DISTRICT( OWNER CUM DRIVER), PIN- 670 676.
BY ADV.AJMAL.A, AMICUS CURIAE.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 14.02.2025, THE COURT ON 17-02-2025 DELIVERED THE
FOLLOWING:
MACA No.2849 of 2021 2
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JOHNSON JOHN, J.
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MACA No.2849 of 2021
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Dated this the 17th day of February, 2025.
J U D G M E N T
This appeal is filed by the 2nd
respondent/insurance company in OP(MV) No.791 of
2019 on the file of the Motor Accidents Claims
Tribunal, Thalassery challenging the order of the
Tribunal directing the insurance company to pay
the compensation amount awarded to the claim
petitioner and thereafter to recover the same
from the owner of the vehicle.
2. The claim petitioner was a pillion
rider in the motorcycle ridden by the first
respondent in a rash and negligent manner.
3. Before the Tribunal, Exts.A1 toA6 were
marked from the side of the claim petitioner and
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Exts.B1 and B2 were marked from the side of the
Insurance company. The Tribunal recorded a
finding that the accident occurred because of the
negligence on the part of the first respondent
and awarded a total compensation of Rs.2,29,500/-
to the petitioner. The Tribunal permitted the
respondent/insurance company to recover the
compensation amount from the first
respondent/owner of the vehicle after payment of
the compensation to the claim petitioner.
4. Heard Sri.Suresh Sukumar, the learned
counsel for the appellant/insurance company and
the learned Amicus Curiae Sri.Ajmal.A, appointed
to represent the respondents, who failed to
appear in spite of service of notice.
5. Learned counsel for the
appellant/insurance company argued that the
Tribunal in spite of recording a specific finding
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that the petitioner was a gratuitous passenger
not covered by the Act only policy directed the
insurance company to pay compensation amount to
the claim petitioner with liberty to recover the
same from the owner of the vehicle and the said
direction is against the principles of law laid
down by the Hon'ble Supreme Court in New India
Assurance Company Ltd. v. Asha Rani and Others
(2003 KHC 22) and United India Insurance
Co.Ltd., Shimla v. Tilak Singh and Others (2006
KHC 605).
6. The learned Amicus Curiae cited the
decision of the Hon'ble Supreme Court in Manuara
Khatun and Others v. Rajesh Kr.Singh and Others
(2017 AC 1031) and the decision of the High Court
of Madras in Manager, New India Assurance
Company Limited v. R.Senthamarai (2011 SCC
Online Mad 1720) and argued that the Tribunal is
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justified in ordering pay and recovery even in
the case of a gratuitous passenger not covered by
the statutory policy.
7. In Asha Rani (Supra), the Hon'ble
Supreme Court held as follows in paragraphs 27 to
29 :
" 27. In view of the changes in the relevant provisions
in 1988 Act vis -a-vis 1939 Act, we are of the opinion
that the meaning of the words "any person" must also
be attributed having regard to the context in which they
have been used i.e. 'a third party'. Keeping in view the
provisions of 1988 Act, we are of the opinion that as the
provisions thereof do not enjoin any statutory liability
on the owner of a vehicle to get his vehicle insured for
any passenger travelling in a goods vehicle, the insurers
would not be liable therefor.
28. Furthermore, sub clause (i) of Cl. (b) of sub-section
(1) of S.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
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passenger of a public service vehicle caused by or
arising out of the use of the vehicle in a public place.
29. An owner of a passenger carrying vehicle must pay
premium for covering the risks of the passengers. If a
liability other than the limited liability provided for
under the Act is to be enhanced under an insurance
policy, additional premium is required to be paid. But if
the ratio of this Court's decision in New India
Assurance Company v. Satpal Singh and Others (JT
1999 (9) SC 416) is taken to its logical conclusion,
although for such passengers, the owner of a goods
carriage need not take out an insurance policy, they
would be deemed to have been covered under the policy
where for even no premium is required to be paid."
8. It is not in dispute that Ext.B1 is only
a statutory policy and the same will not cover a
gratuitous passenger. Sub-section 1 and 2 of
Section 147 of the Motor Vehicles Act, 1998 is
extracted below for convenient reference:
"147. Requirement of policies and limits of liability. -
(1) In order to comply with the requirements of this
Chapter, a policy of insurance must be a policy which -
(a) is issued by a person who is an authorised insurer, and
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(b) insures the person or classes of persons specified in the
policy to the extent specified in sub-section (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 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;
(ii) against the death of or bodily injury to any passenger
of a transport vehicle, except gratuitous passengers of a
goods vehicle, caused by or arising out of the use of the
motor 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 the death of, or bodily injury to, any such
employee
(a) engaged in driving the vehicle, or (b)
(b) if it is a public service vehicle engaged as conductor of
the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or
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(ii) to cover any contractual liability.
Explanation. - For the removal of doubts, it is hereby
clarified that the death of or bodily injury to any person or
damage to any property of a third party shall be deemed to
have been caused by or to have arisen out of, the use of a
vehicle in a public place, notwithstanding that the person
who is dead or injured or the property which is damaged
was not in a public place at the time of the accident, if the
act or omission which led to the accident occurred in a
public place.
(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 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."
9. Sub-Section 1 of Section 149 of Motor
vehicles Act, 1988, reads as follows:
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"149. Duty of insurers to satisfy judgments and awards
against persons insured in respect of third party risks. -
(1) If, after a certificate of insurance has been issued under
subsection (3) of S.147 in favour of the person by whom a
policy has been effected, judgment or award in respect of
any such liability as is required to be covered by a policy
under clause (b) of subsection (1) of S.147 (being a
liability covered by the terms of the policy) [or under the
provisions of S.163A] is obtained against any person
insured by the policy, then, notwithstanding that the
insurer may be entitled to avoid or cancel or may have
avoided or cancelled the policy, the insurer shall, subject
to the provisions of this section, pay to the person entitled
to the benefit of the decree any sum not exceeding the sum
assured payable thereunder, as if he were the judgment
debtor, in respect of the liability, together with any amount
payable in respect of costs and any sum payable in respect
of interest on that sum by virtue of any enactment relating
to interest on judgments."
10. The learned counsel for the appellant
also cited the decision of this Court in New
India Assurance Co. Ltd. v. Daisy Paul and
another [2021 2 KHC 449] and Manager, United
India Insurance Company Ltd. v. Rajappan (2024
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KHC Online 7352) to point out that the direction
for pay and recovery ordered by the Honourable
Supreme Court in National Insurance Co Ltd. v.
Saju P. Paul and another [2013 KHC 4013] and
Manuara Khatun and others v. Rajesh Kr. Singh
and others [2017 KHC 6151] are in exercise of the
plenary powers under Article 142 of the
Constitution of India and taking into
consideration the peculiar facts and
circumstances of the said cases and therefore,
the said decisions are not applicable to this
case.
11. Learned Amicus Curiae cited the
decision of this Court in United India Insurance
Co. Ltd. v. Rijawana Jamshed Mulla and others
[2021 ACJ 197], wherein this Court, after finding
that the deceased was a gratuitous passenger,
directed the insurance company to pay the
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compensation and thereafter, to recover the
amount from the owner of the vehicle, relying on
the decision of the Honourable Supreme Court in
Manuara Khatun & Ors vs Rajesh Kr. Singh & Ors
[2017 ACJ 1031]. The decision of the Honourable
Supreme Court in National Insurance Co. Ltd. v.
Parvathneni [2009 8 SCC 785] shows that the
Honourable Supreme Court issued the direction to
pay the compensation amount and thereafter, to
recover the same from the owner of the vehicle in
exercise of the jurisdiction under Article 142 of
the Constitution of India.
12. In view of the forgoing discussion, I
find that the direction for pay and recovery
passed by the Honourable Supreme Court in
exercise of the jurisdiction under Article 142 of
the Constitution of India cannot be followed as a
precedent to direct the insurance company to make
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payment when the insurance company has no
liability to pay and therefore, in view of the
above legal position, I find that the direction
to the appellant in the impugned award to pay
compensation to the claim petitioner and
thereafter to recover the same from the owner of
the vehicle, is erroneous and liable to be set
aside.
In the result, this appeal is allowed and
the impugned award to the extent it directs the
appellant insurance company to pay compensation
to the claim petitioner is set aside.
Sd/- JOHNSON JOHN, JUDGE.
amk
