Madras High Court

The Divisional Manager vs T.Sangeetha on 8 January, 2021

                                                                         C.M.A.No.2002 of 2020

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 08.01.2021

                                                     CORAM:

                                   THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                              C.M.A. No.2002 of 2020
                                            and C.M.P.No.14699 of 2020

                   The Divisional Manager
                   The United India Insurance Co. Ltd.
                   Motor Third Party Claim Office
                   No.147/58C, Kamarajar street
                   Kancheepuram.                                                .. Appellant

                                                         Vs.

                   1.T.Sangeetha

                   2.Minor T.Gowshikadevi
                   (Represented by her natural
                   guardian, next friend, mother/1st respondent)

                   3.K.Savithri

                   4.Kuppusamy                                               .. Respondents


                   Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor

                   Vehicles Act, 1988, against the judgment and decree dated 07.12.2018 made

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                   1/15




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                                                                              C.M.A.No.2002 of 2020

                   in M.C.O.P. No.663 of 2015 on the file of the Motor Accident Claims

                   Tribunal, Additional District Court, Fast Track Court, Kanchipuram.


                                            For Appellant     : Mr.M.Krishnamoorthy

                                            For R1 to R3      : Mr.M.Sivakumar
                                                                for Mr.C.Prabakaran
                                                                (For caveator)


                                                    JUDGMENT

This matter is heard through "Video Conferencing".

This Civil Miscellaneous Appeal has been filed by the

appellant/Insurance Company against the judgment and decree dated

07.12.2018 made in M.C.O.P. No.663 of 2015 on the file of the Motor

Accident Claims Tribunal, Additional District Court, Fast Track Court,

Kanchipuram.

2.By consent of both the learned counsel appearing for the

appellant/Insurance Company as well as the caveators/respondents 1 to 3, the

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appeal is taken up for final disposal at the stage of admission itself.

3.The appellant is the 2nd respondent in M.C.O.P. No.663 of 2015 on

the file of the Motor Accident Claims Tribunal, Additional District Court,

Fast Track Court, Kanchipuram. The respondents 1 to 3 filed the said claim

petition claiming a sum of Rs.15,00,000/- as compensation for the death of

one K.Thangaraj, who died in the accident that took place on 30.03.2015.

4.According to the respondents 1 to 3, on the date of accident i.e., on

30.03.2015 at about 8.15 a.m., the deceased Thangaraj was authorised by the

4th respondent to do the carpenter work in Kalavai village and after finishing

the work, while the deceased was riding the Hero Splendor PRO motorcycle

from Kalavai towards Chennai on the extreme left side of the road, near

Rajakulam village on the Chennai to Bangalore Highways Road, in a rash and

negligent manner, suddenly one dog crossed the road, on seeing this, the

deceased tried to avoid hitting against the dog, failed, hit against the dog and

capsized near a centre median of the road along with the motorcycle. In the

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said impact, the deceased was thrown away to some distance, sustained fatal

injuries and died on 04.04.2015. Hence, the respondents 1 to 3 filed the

above claim petition claiming compensation against the 4th respondent as

owner and appellant as insurer of the said vehicle.

5.The 4th respondent, owner of the motorcycle, remained exparte before

the Tribunal.

6. The appellant/Insurance Company being insurer of the

motorcycle filed counter statement and denied all the averments made

by the respondents 1 to 3 in the claim petition. According to the

appellant, as per F.I.R. and averments made in the claim petition, it is

clear that the deceased alone rode the motorcycle in a rash and

negligent manner and hit against the centre median of the Highways

Road. The deceased himself is the tort-feasor. The said motorcycle was

not insured with the appellant and the deceased did not possess valid

driving license at the time of accident. Therefore, the appellant/Insurance

Company is not liable to pay any compensation to the respondents

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1 to 3. In any event, the total compensation claimed by the respondents 1 to 3

is excessive and prayed for dismissal of the claim petition.

7.Before the Tribunal, the 1st respondent, wife of the deceased,

examined herself as P.W.1 and seven documents were marked as Exs.P1 to

P7. The appellant/Insurance Company examined one Ms.Saraswathi,

Assistant Manager of the Insurance Company as R.W.1 and marked two

documents as Exs.R1 and R2.

8.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 4th respondent, 4th respondent as

owner is vicariously liable to pay compensation and directed the appellant as

insurer of the said vehicle to pay a sum of Rs.6,98,320/- as compensation to

the respondents 1 to 3.

9.Challenging the liability fastened on them and questioning the

quantum of compensation granted by the Tribunal in the award dated

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07.12.2018 made in M.C.O.P. No.663 of 2015, the appellant/Insurance

Company has come out with the present appeal.

10.The learned counsel appearing for the appellant/Insurance Company

contended that the accident has occurred only due to negligence on the part of

the deceased, who rode the motorcycle in a rash and negligent manner with

uncontrollable speed without wearing helmet violating Section 129 of the

Motor Vehicles Act, hit against a stray dog, fell down, sustained head injuries

and died. The Tribunal overlooked the aspect that the risk of a motorcycle

rider was not required to be covered under Section 147 of the Motor Vehicles

Act. The deceased is the tort-feasor. The deceased or his legal representatives

are not entitled to compensation even under no fault liability. The rider of the

motorcycle who borrowed the motorcycle from the owner of the vehicle

stepped into the shoes of the owner and for his negligence, the legal

representatives are not entitled to claim compensation. The Tribunal ought to

have exonerated the Insurance Company from its liability and relied on the

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judgments of the Hon'ble Apex Court reported in 2009 (2) TNMAC 169

(SC) [Ningamma & another v. United India Insurance Co. Ltd.], 2009 (1)

TNMAC 55 (New India Assurance Co. Ltd. v. Sadanand Mukhi and

others) and 2011 (2) TNMAC 427 SC (A.Sridhar vs. United India

Insurance Company Ltd.). The learned counsel for the appellant further

contended that when a claim petition is filed under Section 163-A of the

Motor Vehicles Act, the compensation has to be arrived only as per II

Schedule. In the present case, contrary to the provisions, the Tribunal

awarded excessive amounts as compensation and prayed for setting aside the

award of the Tribunal.

11.The learned counsel appearing for the caveators/respondents 1 to 3

contended that while the deceased was riding the motorcycle, suddenly a dog

crossed the road and while trying to avoid hitting the dog, the motorcycle got

capsized near centre median of the road, the deceased fell down, sustained

injuries and died. The accident is not due to negligence of the deceased. The

respondents 1 to 3 filed claim petition under Section 163-A of the Motor _____

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Vehicles Act and as per the judgment of the Hon'ble Apex Court, they need

not plead and prove negligence of the rider of the motorcycle. The Tribunal

considering the entire materials on record, awarded compensation, which is

not excessive. There is no error in the award of the Tribunal and prayed for

dismissal of the appeal.

12.The 4th respondent, owner of the motorcycle remained exparte

before the Tribunal and hence, notice to the 4th respondent is dispensed with.

13.Heard the learned counsel appearing for the appellant/Insurance

Company as well as the learned counsel appearing for the

caveators/respondents 1 to 3 and perused the entire materials on record.

14.It is the contention of the respondents 1 to 3 that while the deceased

was trying to avoid hitting a stray dog which crossed suddenly, the

motorcycle got capsized, the deceased fell down along with the motorcycle

and sustained fatal injuries. F.I.R. was registered against the deceased. From

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the averments made in the claim petition and F.I.R., it is clear that the

accident has occurred only due to the negligence on the part of the deceased,

who was riding the motorcycle at the time of accident.

15.The issue whether the rider of the motorcycle, who borrowed the

motorcycle from the owner was responsible for the accident and the tort-

feasor can claim compensation from the owner and insurer of the motorcycle

was considered by the Hon'ble Apex Court in the judgment reported in 2009

(2) TNMAC 169 (SC) [Ningamma & another v. United India Insurance Co.

Ltd.]. In the said judgment, the Hon'ble Apex Court has held that a borrower

of the motorcycle steps into the shoes of the owner and the tort-feasor or his

legal representatives are not entitled to claim compensation against the

insurer of the motorcycle. The said ratio was reiterated by the Hon'ble Apex

Court in the following judgment reported in 2020 (1) TN MAC 1 (SC)

[Ramkhiladi and another Vs. United India Insurance Co. Ltd., and

another]:

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“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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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.”

16.In view of the above judgment of the Hon'ble Apex Court reported

in 2020 (1) TN MAC 1 (SC) cited supra, the respondents 1 to 3, who are the

legal representatives of the deceased tort-feasor are not entitled to claim

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compensation from the appellant, who is insurer of the motorcycle in which

the deceased was riding at the time of accident. For the above reason, the

award of the Tribunal directing the appellant/Insurance Company to pay

compensation is liable to be set aside and is hereby set aside.

17.In the result, this Civil Miscellaneous Appeal is allowed setting

aside the portion of the award directing the appellant/Insurance Company to

pay compensation to the respondents 1 to 3 and 4th respondent, owner of the