Madras High Court
National Insurance Co. Ltd vs Shanthi on 7 January, 2021
C.M.A.No.2332 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.01.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A. No.2332 of 2019
and C.M.P.No.10580 of 2019
National Insurance Co. Ltd.,
Rep. By its Branch Manager,
Having its Registered Office at
73, Perundurai Road,
Near Collector Office,
PB No.911,
Erode Taluk and District. .. Appellant
Vs.
1.Shanthi
2.Minor Kavya
3.Minor Nivashini
(Minors rep. By their next friend/mother, Shanthi)
4.Indrani .. Respondents
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C.M.A.No.2332 of 2019
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 30.11.2017, made
in M.C.O.P. No.274 of 2015, on the file of the Special District Court, (Motor
Accident Claims Tribunal), Erode.
For Appellant : Mr. S.Vadivel
For Respondents : No appearance (For R1 to R3)
No appearance (For R4)
JUDGMENT
The matter is heard through "Video Conferencing".
This Civil Miscellaneous Appeal has been filed by the appellant-
Insurance Company against the judgment and decree dated 30.11.2017, made
in M.C.O.P. No.274 of 2015, on the file of the Special District Court, (Motor
Accident Claims Tribunal), Erode.
2.The appellant is the 1st respondent in M.C.O.P. No.274 of 2015, on
the file of the Special District Court, (Motor Accident Claims Tribunal),
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Erode. The respondents 1 to 3/claimants filed the said claim petition,
claiming a sum of Rs.20,00,000/- as compensation for the death of one
S.Ramesh, who died in the accident that took place on 17.11.2013.
3.According to the respondents 1 to 3, on the date of accident, the
deceased was riding the Motorcycle bearing Registration No.TN-33-BC-3189
belonging to the 1st respondent, along with his two daughters viz.,
respondents 2 and 3 on the Erode to Perundurai main road from East to West
direction. While nearing City Union Bank ATM near HP Petrol Bunk, a rider
of the unknown Two Wheeler coming from behind rode the same in a rash
and negligent manner and while trying to overtake the Motorcycle rode by the
deceased, lost control and dashed on the vehicle ridden by the deceased from
behind and caused the accident. Due to the sudden impact, the deceased was
thrown from his bike and landed on the median in the middle of the road and
sustained head injuries and died on 18.11.2013. The accident occurred only
due to rash and negligent driving by the unknown Two Wheeler who rushed
away from the scene. Hence, the respondents 1 to 3 filed the claim petition
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C.M.A.No.2332 of 2019
claiming compensation against the appellant as insurer of the said vehicle.
The mother of the deceased was arrayed as 2nd respondent in the claim
petition.
4.The appellant-Insurance Company, filed counter statement and
denied all the averments made by the respondents 1 to 3 in the claim petition.
According to the appellant, the policy issued for the Motorcycle belonging to
the 1st respondent is an Act Policy to cover third party risks and the owner of
the vehicle cannot maintain claim application against the insurer. In the said
policy, the Insurance Company is entitled to indemnify the loss sustained to
the owner/1st respondent. The owner of the vehicle is only entitled to claim
compensation under contractual liability and not under Act Policy. By riding
the vehicle, the deceased had stepped into the shoes of the owner and hence,
the legal heirs of the deceased cannot claim compensation. Another vehicle
had hit from behind the Motorcycle ridden by the deceased and in the case of
hit and run, the claimants cannot maintain claim petition against the insurer
of the Motorcycle rode by the deceased and prayed for dismissal of the claim
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C.M.A.No.2332 of 2019
petition.
5.The 4th respondent, mother of the deceased, filed counter statement
and contended that she is entitled for 1/4th of the compensation to be awarded
to the respondents 1 to 3.
6.Before the Tribunal, the 1st respondent examined herself as P.W.1,
examined eye witness as P.W.2 and marked 8 documents as Exs.P1 to P8. The
appellant examined their Official as R.W.1 and marked 2 documents as
Exs.R1 & R2.
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that the deceased died in the accident that occurred while
using the Motorcycle belonging to the 1st respondent and directed the
appellant as insurer of the said vehicle to pay a sum of Rs.3,56,210/- as
compensation to the respondents 1 to 4.
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C.M.A.No.2332 of 2019
8.Challenging the liability fastened on them and questioning the
quantum of compensation granted by the Tribunal in the award dated
30.11.2017, made in M.C.O.P. No.274 of 2015, the appellant - Insurance
Company has come out with the present appeal.
9.The learned counsel appearing for the appellant-Insurance Company
contended that as per policy, if any liability arises, it has to be fixed on the
owner/insured and thereafter, on the insurer, on indemnity basis. In the
present case, the owner is 1st claimant, the appellant-Insurance Company is 1st
respondent and mother of the deceased was 2nd respondent in the claim
petition. The claim petition is not maintainable against the appellant. The
deceased was husband of owner of the vehicle and as owner, she cannot
maintain the claim petition. Admittedly, the present case is hit and run and the
deceased was a tort-feasor. The respondents 1 to 4 who are the legal heirs of
the tort-feasor cannot maintain the claim petition against the appellant. The
policy issued by the appellant is only Act Policy which does not cover the
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C.M.A.No.2332 of 2019
claim of the owner or rider of the Two Wheeler. It covers only liability of the
third party and also for own damages. The respondents claimed that deceased
was working as Accountant in Perundurai Regional Transport Office and was
earning a sum of Rs.18,066/- per month. Hence, the claim petition under
Section 163-A of the Motor Vehicles Act is not maintainable. The award of
the Tribunal is contrary to the provisions of the Motor Vehicles Act and
prayed for setting aside the award of the Tribunal.
10.Though notice has been served on the respondents 1 to 3 and 4th
respondent and their names are printed in the cause list, there was no
representation for them on 04.01.2021. To give them one more opportunity,
the matter was adjourned today. Today also, there is no representation for
them.
11.Heard the learned counsel appearing for the appellant-Insurance
Company and perused the materials available on record.
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C.M.A.No.2332 of 2019
12.From the materials available on record, it is seen that the 1st
respondent/1st claimant is owner of the offending vehicle. At the time of
accident, the husband of the 1st respondent was riding the Motorcycle.
According to the respondents 1 to 3, while the deceased was riding the
Motorcycle slowly on the left side of the road, a rider of the Two Wheeler
who was coming behind the deceased, rode the Two Wheeler in a rash and
negligent manner and while trying to over take the deceased, lost control and
dashed on the Motorcycle rode by the deceased from behind and caused the
accident. In the accident, the deceased sustained injuries and died. The rider
of the Two Wheeler also fell down. He took his Two Wheeler and rushed
away from the scene of occurrence, before the number of his vehicle could be
noted down. FIR was registered against the driver of the unknown vehicle.
The Police closed the FIR as un-deducted case. From the above admitted
case, it is clear that two vehicles were involved in the accident and according
to the respondents 1 to 3, the rider of unknown vehicle was responsible for
the accident. Having admitted so, the respondents 1 to 3 have filed claim
petition under Section 163-A of the Motor Vehicles Act, only against the
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C.M.A.No.2332 of 2019
appellant who is the insurer of the Motorcycle owned by the 1st claimant/1st
respondent and driven by the deceased and not against the rider, owner and
insurer of the other Two Wheeler. Similar issue was considered by the
Honb'le Apex Court in the judgment reported in (2018) 9 SCC 801 [National
Insurance Co. Ltd., Vs. Ashalata Bhowmik and others], wherein it has been
held that the claim petition filed under Section 163-A of the Motor Vehicles
Act by legal provisions against the owner and insurer of the vehicle driven by
the deceased is not maintainable and the legal heirs can maintain the claim
petition only against the rider, owner and insurer of other Motorcycle, on the
ground that accident occurred involving two Motorcycles and deceased who
was riding one Motorcycle was not at fault, but rider of other Motorcycle was
only a tort-feasor. In para 7 of the above judgment, it has been held as
follows:
“7. We have carefully considered the submissions of
the learned counsel made at the Bar and perused the
materials placed on record. It is an admitted position that
the deceased was the owner-cum-driver of the vehicle in
question. The accident had occurred due to the rash and
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C.M.A.No.2332 of 2019
negligent driving of the vehicle by the deceased. No other
vehicle was involved in the accident. The deceased himself
was responsible for the accident. The deceased being the
owner of the offending vehicle was not a third party within
the meaning of the Act. The deceased was the victim of his
own action of rash and negligent driving. A Claimant, in
our view, cannot maintain a claim on the basis of his own
fault or negligence and argue that even when he himself
may have caused the accident on account of his own rash
and negligent driving, he can nevertheless make the
insurance company to pay for the same. Therefore, the
respondents being the LRs of the deceased could not have
maintained the claim petition filed under Section 166 of the
Motor Vehicles Act.”
13.Secondly, the 1st respondent, wife of the deceased, is owner of the
Motorcycle in which the deceased was riding and appellant is insurer of the
said Motorcycle. The 1st respondent and other legal heirs filed claim petition
only against the insurer of the Motorcycle owned by the 1st respondent
against the insurer. In the judgment reported in 2009 (2) TNMAC 169 (SC)
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[Ningamma & another v. United India Insurance Co. Ltd.], the Hon'ble
Apex Court has held that owner is not entitled to claim compensation against
his own insurer, when the owner is a tort-feasor. The Hon'ble Apex Court
held that in the policy issued under Section 147 of the Motor Vehicles Act,
the insurer is liable to indemnify the insured in respect of liability of the third
parties fixed on the owner of the vehicle. The Honb'le Apex Court further
held that a person who borrows the Two Wheeler from the owner steps into
the shoes of the owner and that, he is the tort feasor. He is not entitled to
claim compensation from the owner and insurer of the vehicle in which he
was riding. The Honb'le Apex Court in para nos.18 and 19 of the judgment
reported in 2009 (2) TNMAC 169 (SC) (Ningamma's case) cited supra, has
held as follows:
“18.In the case of Oriental Insurance Company Ltd.
v. Rajni Devi and Others, (2008) 5 SCC 736, wherein one
of us, namely, Hon'ble Justice S.B. Sinha is a party, it has
been categorically held that in a case where third party is
involved, the liability of the insurance company would be
unlimited. It was also held in the said decision that where,
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however, compensation is claimed for the death of the
owner or another passenger of the vehicle, the contract of
insurance being governed by the contract qua contract, the
claim of the claimant against the insurance company would
depend upon the terms thereof. It was held in the said
decision that Section 163-A of the MVA cannot be said to
have any application in respect of an accident wherein the
owner of the motor vehicle himself is involved. The
decision further held that the question is no longer res
integra. The liability under section 163-A of the MVA is on
the owner of the vehicle. So a person cannot be both, a
claimant as also a recipient, with respect to claim.
Therefore, the heirs of the deceased could not have
maintained a claim in terms of Section 163-A of the MVA.
In our considered opinion, the ratio of the aforesaid
decision is clearly applicable to the facts of the present
case. In the present case, the deceased was not the owner
of the motorbike in question. He borrowed the said
motorbike from its real owner. The deceased cannot be held
to be employee of the owner of the motorbike although he
was authorised to drive the said vehicle by its owner, and
therefore, he would step into the shoes of the owner of the
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C.M.A.No.2332 of 2019
motorbike.
19.We have already extracted Section 163-A of the
MVA hereinbefore. 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.”
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14.In the present case, husband of the 1st respondent/owner of the
vehicle was riding the Motorcycle and he stepped into the shoes of the owner
and when he is the tort-feasor, the respondents who are the legal heirs of the
deceased are not entitled to claim any compensation from the insurer of Two
Wheeler. The Tribunal erred in holding that the appellant failed to prove that
deceased borrowed vehicle from 1st respondent/owner and hence, the
deceased is only a third party. It is not the case of the respondents 1 to 3 that
the deceased without knowledge or permission of the 1st respondent took the
Two Wheeler and accident occurred. The deceased was riding the Two
Wheeler along with his two daughters and as held by the Hon'ble Apex Court
reported in 2009 (2) TNMAC 169 (SC) (Ningamma's case) cited supra, he
stepped into the shoes of the owner and hence, the respondents who are the
legal heirs of the tort-feasor are not entitled to maintain claim petition against
the appellant, insurer. Again, the Hon'ble Apex Court in the judgment
reported in 2020 (1) TN MAC 1 (SC) [Ramkhiladi and another Vs. United
India Insurance Co. Ltd., and another], has held that legal heirs of the tort-
feasor are not entitled to maintain the claim petition. The relevant paragraphs
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are as follows:
“5.4 An identical question came to be considered by
this Court in the case of Ningamma (supra). In that case,
the deceased was driving a motorcycle which was
borrowed from its real owner and met with an accident by
dashing against a bullock cart i.e. without involving any
other vehicle. The claim petition was filed under Section
163A of the Act by the legal representatives of the deceased
against the real owner of the motorcycle which was being
driven by the deceased. To that, this Court has observed
and held that since the deceased has stepped into the shoes
of the owner of the vehicle, Section 163A of the Act cannot
apply wherein the owner of the vehicle himself is involved.
Consequently, it was held that the legal representatives of
the deceased could not have claimed the compensation
under Section 163A of the Act. Therefore, as such, in the
present case, the claimants could have even claimed the
compensation and/or filed the claim petition under Section
163A of the Act against the driver, owner and insurance
company of the offending vehicle i.e. motorcycle bearing
registration No. RJ 29 2M 9223, being a third party with
respect to the offending vehicle. However, no claim under
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Section 163A was filed against the driver, owner and/or
insurance company of the motorcycle bearing registration
No. RJ 29 2M 9223. It is an admitted position that the
claim under Section 163A of the Act was only against the
owner and the insurance company of the motorcycle
bearing registration No. RJ 02 SA 7811 which was
borrowed by the deceased from the opponent-owner
Bhagwan Sahay. Therefore, applying the law laid down by
this Court in the case of Ningamma (supra), and as the
deceased has stepped into the shoes of the owner of the
vehicle bearing registration No. RJ 02 SA 7811, as rightly
held by the High Court, the claim petition under Section
163A of the Act against the owner and insurance company
of the vehicle bearing registration No. RJ 02 SA 7811 shall
not be maintainable.
5.5 It is true that, in a claim under Section 163A of
the Act, there is no need for the claimants to plead or
establish the negligence and/or that the death in respect of
which the claim petition is sought to be established was
due to wrongful act, neglect or default of the owner of the
vehicle concerned. It is also true that the claim petition
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under Section 163A of the Act is based on the principle of
no fault liability. However, at the same time, the deceased
has to be a third party and cannot maintain a claim under
Section 163A of the Act against the owner/insurer of the
vehicle which is borrowed by him as he will be in the shoes
of the owner and he cannot maintain a claim under Section
163A of the Act against the owner and insurer of the
vehicle bearing registration No. RJ 02 SA 7811. In the
present case, the parties are governed by the contract of
insurance and under the contract of insurance the liability
of the insurance company would be qua third party only. In
the present case, as observed hereinabove, the deceased
cannot be said to be a third party with respect to the
insured vehicle bearing registration No. RJ 02 SA 7811.
There cannot be any dispute that the liability of the
insurance company would be as per the terms and
conditions of the contract of insurance. As held by this
Court in the case of Dhanraj (supra), 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 authorized representative) carried in the
vehicle or damage to any property of a third party caused
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C.M.A.No.2332 of 2019
by or arising out of the use of the vehicle. In the said
decision, it is further held by this Court that Section 147
does not require an insurance company to assume risk for
death or bodily injury to the owner of the vehicle.
5.6 In view of the above and for the reasons stated
above, in the present case, as the claim under 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.”
15.I had an occasion to consider this issue in C.M.A.No.3414 of 2019.
Considering the judgment of the Honb'le Apex Court, by the judgment dated
28.05.2020, in C.M.A.No.3414 of 2019, I held that the claimant is not
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entitled to claim compensation from the insurer of the vehicle in which he
was riding, when another vehicle viz., Mahendra Maximo Van driven in a
rash and negligent manner dashed against the Motorcycle driven by him. The
relevant paragraphs are as follows:
“19.The judgment reported in 2020 (1) TN MAC 1
(SC) [Ramkhiladi and another Vs. United India
Insurance Co. Ltd., and another], relied on by the learned
counsel appearing for the appellant is squarely applicable
to the facts of the present case. The Hon'ble Apex Court
referring to earlier judgment, especially 2009 (2) TNMAC
169 (SC) [Ningamma & another v. United India
Insurance Co. Ltd.], categorically held that owner of the
vehicle cannot maintain a claim petition against the insurer
when the accident has occurred only due to negligence on
the part of the other vehicle.
20.In view of the above finding, the reliance placed
by the learned counsel appearing for the respondent on the
judgments of the Hon'ble Apex Court in 2018 (2) TNMAC
149 (SC) [Shivaji and another Vs. United India Insurance
Co. Ltd.] and 2017 (2) TNMAC 753 (SC) [United India
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Insurance Co. Ltd., Vs. Sunil Kumar and another] do not
advance the case of the respondent. Further, the respondent
has stated that accident has occurred only due to rash and
negligent driving by Mahendra Maximo Van and the
respondent is making a claim against the appellant who is
the insurer of Motorcycle driven by the respondent, since
the Mahendra Maximo Van is not insured and he cannot
claim compensation from the owner of the said vehicle. The
reason given for filing claim petition against the appellant
is not valid and claim petition is not maintainable under
Section 163-A of the Motor Vehicles Act.”
16.Thirdly, it is the case of the respondents 1 to 3 that the deceased was
working as an Accountant in Perundurai Regional Transport Office and was
earning a sum of Rs.18,066/- per month. They filed Exs.P8 – salary certificate
to prove the same. The Tribunal taking note of the fact that in a claim petition
filed under Section 163-A of the Motor Vehicles Act, annual income should
not exceed Rs.40,000/-, fixed annual income of the deceased at Rs.40,000/-,
contrary to the income of the deceased as per salary certificate, Ex.P8. The
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Honb'le Apex Court in the judgment reported in 2004 (1) TN MAC (SC) 193
[Deepal Girishbhai Soni and others Vs. United India Insurance Co. Ltd.,
Baroda], has held that Courts have no power to cut down the income to
entertain the claim petition under Section 163-A of the Motor Vehicles Act.
The Hon'ble Apex Court has held that the proceedings under Section 163-A
of the Act being a social security provision, providing for a distinct scheme,
only those persons whose annual income is up to Rs.40,000/- can take the
benefit, invoking the provisions of Section 163-A of the Act. When the
annual income exceeds Rs.40,000/-, the claim petition under Section 163-A
of the Act is not maintainable. The relevant paragraphs of the judgment
reported in 2004 (1) TN MAC (SC) 193 (Deepal Girishbhai Soni's case)
cited supra are as follows:
“41. Chapter XI was, thus, enacted for grant of
immediate relief to a section of people whose annual
income is not more than Rs. 40,000/- having regard to the
fact that in terms of Section 163-A of the Act read with the
Second Schedule appended thereto; compensation is to be
paid on a structured formula not only having regard to the
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age of the victim and his income but also the other factors
relevant therefor.................
.............................
50.The scheme envisaged under Section 163-A, in
our opinion, leaves no manner of doubt that by reason
thereof the rights and obligations of the parties are to be
determined finally. The amount of compensation payable
under the aforementioned provisions is not to be altered or
varied in any other proceedings. It does not contain any
provision providing for set off against a higher
compensation unlike Section 140. In terms of the said
provision, a distinct and specified class of citizens, namely,
persons whose income per annum is Rs. 40,000/- or less is
covered thereunder whereas Sections 140 and 166 cater to
all sections of society.
...............
66.We, therefore, are of the opinion that Kodala
(supra) has correctly been decided. However, we do not
agree with the findings in Kodala (supra) that if a person
invokes provisions of Section 163-A, the annual income of
Rs.40,000/- per annual shall be treated as a cap. In our
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opinion, the proceeding under Section 163-A being a social
security provision, providing for a distinct scheme, only
those whose annual income is upto Rs. 40,000/- can take
the benefit thereof. All other claims are required to be
determined in terms of Chapter XII of the Act.”
17.In view of the above materials, this Court is of the considered view
that the respondents who are the legal heirs of the tort-feasor are not entitled
to maintain the claim petition under Section 163-A of the Motor Vehicles Act
against the appellant-Insurance Company, insurer of the Motorcycle, as
deceased was riding the Motorcycle belonging to the 1st claimant/1st
respondent insured with the appellant and respondents cannot maintain the
claim petition against insurer of the Motorcycle. The Tribunal erred in fixing
the annual income of the deceased at Rs.40,000/- and entertained the claim
petition. Further, the Tribunal without following the structural formula in II
Schedule of the Act, awarded compensation under various heads, contrary to
the judgments of the Honb'le Apex Court reported in 2004 (1) TN MAC (SC)
193, referred to above. For the above reason, the award of the Tribunal is
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liable to the set aside and is hereby set aside.
19.In the result, this Civil Miscellaneous Appeal is allowed and the
award of the Tribunal is set aside. It is represented by the learned counsel
appearing for the appellant that as per the order of this Court dated
30.04.2019, they have already deposited the entire award amount to the credit
of M.C.O.P.No.274 of 2015. In view of allowing the appeal, the appellant-
Insurance Company is permitted to withdraw the amount, lying in the credit
of M.C.O.P. No.274 of 2015, if the award amount has already been deposited
by them. It is made clear that if the respondents 1 to 4 have already
withdrawn the award amount, the appellant-Insurance Company is not
entitled to recover the same from the respondents 1 to 4. Consequently,
connected Miscellaneous Petition is closed. No costs.
07.01.2021
Index : Yes
Speaking Order : Yes
gsa
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To
1.The Special District Judge,
(Motor Accident Claims Tribunal),
Erode.
2.The Section Officer,
V.R Section,
High Court, Madras.
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V.M.VELUMANI, J.,
gsa
C.M.A. No.2332 of 2019
07.01.2021
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