Madras High Court
Rani vs Leo Jayakumar on 16 June, 2021
C.M.A.No.381 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.06.2021
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
C.M.A.No.381 of 2020
Rani ... Appellant
Vs.
1.Leo Jayakumar
2.The Divisional Manager,
The New India Assurance Company Limited,
Vellore. ... Respondents
Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988 against the Judgment and Decree order dated
28.11.2017 made in M.C.O.P.No.1719 of 2013, on the file of the Motor
Accidents Claims Tribunal, Special Sub Court, Tirupattur, Vellore
District.
For Appellant : Mr.M.Sivakumar
For Respondents : Mr.Michael Visuvasam for R2
R1 No appearance
JUDGMENT
The claimant is the appellant in this appeal. She has filed this
appeal against the impugned judgment and decree passed by the Motor
Accident Claims Tribunal (Special Sub Court, Tirupattur) in
M.C.O.P.No.1719 of 2013.
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2.By the impugned judgment and decree, the Tribunal has awarded
a sum of Rs.50,000 together with interest under Section 140 of the Motor
Vehicles Act, 1988. The appellant has filed this appeal for enhancement
of compensation and is now relying on the decision of the Hon'ble
Supreme Court in Ramkhiladi & Another Vs. United India Insurance
Co.Ltd & another (2) SCC 550.
3.The learned counsel for the appellant submits that since the
respondent/Insurance Company had extended a comphrensive Insurance
Policy to the owner of the vehicle, the award amount may be increased to
Rs.2,00,000/- as per the comphrensive Insurance policy.
4.Defending the impugned judgment and decree, the learned
counsel for the 2nd respondent/Insurance Company submits that the
comphrensive policy issued by the Insurance Policy does not entitle any
compensation to a party who is not the owner or the driver of the vehicle.
It is further submitted that even otherwise, the claim before the Tribunal
was filed under Section 163A of the Motor Vehicles Act, 1988 and was
without any basis in as much as the deceased Krishnakumar who was
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earning a sum of Rs.17,000/- per month and was disqualified from
getting any compensation.
5.It is submitted that the liability under the comphrensive
Insurance Policy would be governed by terms and conditions of the
policy between the 2nd respondent/Insurance Company and the 1st
respondent owner of the insured vehicle. It is therefore submitted that
since the deceased who borrowed the insured car to the 1st respondent
was neither the 3rd party nor the driver, the appellant was not entitled to
any compensation under comphrensive policy issued by the 2nd
respondent/Insurance Company.
6.The learned counsel submits that the concession given by the
Insurance Policy before the Hon'ble Supreme Court in Ramkhiladi &
Another Vs. United India Insurance Co.Ltd & another (2020) (2)
SCC 550 cannot be considered as a binding precedent and therefore
submits that the Tribunal was corrects in awarding a restricted
compensation. He therefore submits that the decision of the Hon'ble
Supreme Court in Ramkhiladi cannot be applied to the facts and
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circumstances of the case. He further submits that this issue has been
elaborately examined by the Single Judge of this Court in National
Insurance Company Limited Vs. Rani and others reported in 2020
703. In this connection, he refers to paragraph 9 to 14 from the said
order which are re-produced below:-
9.The recent judgment of Hon'ble Supreme
Court in the case of Ramkhiladi and Another Vs.
United India Insurance Co. Ltd and Another [2020
(1) TN MAC 1 (SC)], elaborately discussed the
scope of claim petition under Section 163(A) of the
Motor Vehicles Act. Undoubtedly, the Special
Provision cannot be read in isolation and the Apex
Court considered Sections 147, 166 and 163-A of
the Motor Vehicles Act. Thus the Special Provision
is to be read conjointly and in consonance with the
object, purpose as well as the intention of the
Legislature.
10.In the event of interpreting any Special
Provision in isolation to the other provisions of the
Statute, then the very object would be defeated and
therefore, the Courts cannot make an interpretation
of a Special Provision, which is otherwise intended
to grant certain benefits in respect of grant of
compensation in the event of not establishing
negligence. Thus, this Court is of the considered
opinion that, even the Personal Accident Coverage
cannot be considered in certain cases, where the
victim is not the registered owner of the vehicle.
Three conditions are required even under Personal
Accident Policy (which is not a statutory coverage
in C.M.A.No.1848 of 2017 terms of Section 147 of
the Act). The said three conditions are mandatory,
so as to avail compensation under the Personal
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Accident Policy (not a statutory coverage in terms
of Section 147 of the Act). The conditions are:-
(a)the owner-driver is the registered owner of
the vehicle insured;
(b)the owner-driver is the insured named in
the policy;
(c)the owner-driver holds an effective driving
license, in accordance with the provisions of law.
11.With reference to Section 163-A of the
Motor Vehicles Act, 1988, the Hon'ble Supreme
Court has taken a view that if a borrower of the
vehicle met with an accident while riding the
vehicle, he cannot claim compensation under
Section 163-A of the Act. The reasons being the
event of granting compensation without
adjudication of negligence, then the same would
result in defeating the very object of the Act, under
Sections 147 and 166 of the Motor Vehicles Act.
When Section 147 categorically enumerates
requirements of policies, limits and liabilities, the
same cannot be whittled down, while dealing with
the claim petitions under Section 163-A of the Act.
All these provisions are to be ready conjointly the
purpose of granting the benefit of Special Provision
enacted under Section 163-A of the Act, for payment
of compensation on structured formula basis. When
the Special provision is specifically provided for a
structured formula basis, it cannot be read in
isolation with reference to the nature of the
contracted policy and the requirement of policy and
limited liabilities clauses, which all are well
enumerated under the Provisions of the Act. Thus,
this Court is of the considered opinion that a
person, who borrowed a vehicle from the registered
owner and while driving the same met with an
accident sustained injuries or dead, then he is not
entitled to claim any compensation under Section
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163-A of the Act and even for claiming Personal
Accident Policy (not a statutory coverage in terms
of Section 147 of the Act), he is bound to establish
the three mandatory conditions and in the absence
of compliance with the said three conditions, he is
not entitled for compensation.
12.This Court is of the considered opinion
that the Insurance Company as well as the Policy
Holders are bound by the terms and conditions of
the contract agreed between the parties. In the
event of superseding the terms of contract, then the
very legality of the Law of contract is sacrificed
under the provisions of the Indian Contract Act,
which is unacceptable and therefore, in respect of
the contract, Courts are bound to consider the
terms and conditions and the binding clauses
between the parties.
13.The Hon'ble Supreme Court in the
judgment, cited supra, in unequivocal terms held
that in a claim under Section 163-A 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 under Section 163-A 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 163-A 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 mainain
a claim under Section 163-A of the Act, against the
owner and Insurer of the vehicle. In the case before
the Hon'ble Supreme Court, finding was that 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
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only. Thus the deceased cannot be said to be a
third party with respect to the insured vehicle.
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. The
insurance policy covers the liability incurred by the
insured in respect of death 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 by
or arising out of the use of the vehicle. Thus
Section 147 does not require an Insurance
Company to assume risk for death or bodily injury
to the owner of the vehicle.
14.Perusal of the judgment, it is crystal clear
that the scope of Section 163-A of the Act cannot be
expanded, so as to cover borrower of the vehicle,
who stepped into the shoes of the registered owner
and file claim petition under Section 163-A of the
Act. In the event of entertaining such claim
petition, undoubtedly, the other provisions namely,
Section 147 and other related provisions would get
defeated and the object sought to be reached
through Special Provisions under Section 163-A of
the Act, would also be defeated. Thus the fact
remains that in all such cases, where a vehicle was
borrowed from the registered owner by any person
and such vehicle met with an accident and the rider
of the vehicle sustained injury or it resulted in
death, then no claim petition is entertained under
Section 163-A of the Act and even in caeses of claim
of Personal Accident Policy (not a statutory
coverage in terms of Section 147 of the Act), then
also the mandatory conditions under the Personal
Accident Policy are to be established by the
claimant. This being the principles to be followed,
this Court is of the considered opinion that in the
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present case, the claim petition is unsustainable and
not entertainable and liable to be rejected.
7.The recent judgment of Hon'ble Supreme Court in the case of
Ramkhiladi & Another Vs. United India Insurance Co.Ltd and
Another 2020 (2) SCC 550, has elaborately discussed the scope of claim
petition under Section 163-A of the Motor Vehicles Act. Undoubtedly,
the Special Provision cannot be read in isolation and the Apex Court
considered Sections 147, 166 and 163-A of the Motor Vehicles Act. Thus
8.Heard the learned counsel for the appellant and the respondent.
9.I have considered the arguments advanced by the learned counsel
for the appellant and the respondent and perused the decision of the
learned Single Judge in National Insurance Company Limited Vs.
Rani and others and that of the decision of the Hon'ble Supreme Court
in Ramkhiladi & Another Vs. United India Insurance Co.Ltd &
another (2020) (1) TNMAC (1) (SC) referred to supra.
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10.The learned Single Judge of this Court in National Insurance
Company Limited Vs. Rani and others has not stated that law laid
down by the Hon'ble Supreme Court in Ramkhiladi & Another Vs.
United India Insurance Co.Ltd & another (2020) (2) SCC 550 cannot
be followed and/or has no binding force of a precedent. Though the
learned Single Judge has referred to the said decision, yet has come to a
different conclusion.
11.The Hon’ble Supreme Court in Ramkhiladi & Another Vs.
United India Insurance Co., (2020) 2 SCC 550 applied the ratio laid
down by it in Ningamma [Ningamma v. United India Insurance Co.
Ltd., (2009) 13 SCC 710: (2009) 5 SCC (Civ) 241 : (2010) 1 SCC (Cri)
1213] and held that 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 163-
A of the Act against the owner and insurance company of the vehicle
bearing Registration No. RJ 02 SA 781 is not be maintainable.
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12.At the same time the Court held that 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 herein above, 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 Dhanraj [Dhanraj v. New India
Assurance Co. Ltd., (2004) 8 SCC 553 : 2005 SCC (Cri) 363], 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 authorised representative) carried in the vehicle or damage to any
property of a third party caused 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.
13.Interpreting the scope of comprehensive policy, the Court
concluded that since the deceased stepped into the shoes of the owner,
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benefit thereof would inure to the family of the deceased. It observed as
under:-
9.8. However, at the same time, even as per
the contract of insurance, in case of personal
accident the owner-driver is entitled to a sum of Rs
1 lakh. Therefore, the deceased, as observed
hereinabove, who would be in the shoes of the
owner shall be entitled to a sum of Rs 1 lakh, even
as per the contract of insurance. However, it is the
case on behalf of the original claimants that there is an
amendment to the 2nd Schedule and a fixed amount of
Rs 5 lakh has been specified in case of death and
therefore the claimants shall be entitled to Rs 5 lakh.
The same cannot be accepted. In the present case, the
accident took place in the year 2006 and even the
judgment and award was passed by the learned
Tribunal in the year 2009, and the impugned judgment
and order has been passed by the High Court in 10-5-
2018 [United India Insurance Co. v. Ramkhiladi,
2018 SCC OnLine Raj 3264] i.e. much prior to the
amendment in the 2nd Schedule. In the facts and
circumstance of the present case, the claimants shall
not be entitled to the benefit of the amendment to the
2nd Schedule. At the same time, as observed
hereinabove, the claimants shall be entitled to Rs 1
lakh as per the terms of the contract of insurance,
the driver being in the shoes of the owner of the
vehicle.
14.The above extracted portion is not based on any concession
given by the Counsel for the respondent insurance company before the
Hon’ble Supreme Court as was contended by the learned counsel for the
insurance company in the present appeal. It is a ratio of the Hon'ble
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Supreme Court and is binding precedent having force of law under
Article 141 of Constitution of India.
15.It is noticed that while passing the order in National
Insurance Company Ltd. Vs Rani and Others, the learned single
judge has not taken note of para 9.8 from Ramkhiladi & Another Vs.
United India Insurance Co., (2020) 2 SCC 550 which has extracted
above.
16.Therefore, while agreeing in part with the views expressed
therein which follows the reasoning given in Ramkhiladi & Another
Vs. United India Insurance Co., (2020) 2 SCC 550, I am unable to
subscribe to ultimate conclusion of the learned single Judge which is
contrary to the views expressed in para 9.8 by the Hon’ble Supreme
Court in Ramkhiladi & Another Vs. United India Insurance Co.,
(2020) 2 SCC 550.
17.Facts of the present case is quite similar to the facts of the case
in Ramkhiladi & Another Vs. United India Insurance Co., (2020) 2
SCC 550. Therefore, this appeal deserves to be partly allowed.
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18.The 2nd respondent/Insurance Company is therefore directed to
deposit a sum of Rs.2,00,000 together with interest at 7.5% per annum
from the date of numbering of the claim petition till the date of such
deposit, less any amount already deposited by it, within a period of six
weeks from the date of receipt of a copy of this Judgment.
19.On such deposit being made by the 2nd respondent/Insurance
Company, the 1st respondent/claimant is permitted to withdraw the same
together with interest accrued thereon, less any amount already
withdrawn, by filing suitable application before the Tribunal.
20.This Civil Miscellaneous Appeal stands Partly Allowed with the
above observations. No costs.
16.06.2021
jas
Internet : Yes / No
Index : Yes/No
Speaking Order/Non-speaking Order
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To:
1.The Divisional Manager,
The New India Assurance Company Limited,
Vellore.
2.The Motor Accidents Claims Tribunal
Special Sub Court, Tirupattur, Vellore District.
3.The V.R.Section,
Madras High Court, Madras.
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C.SARAVANAN, J.
jas
C.M.A.No.381 of 2020
16.06.2021
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