Madras High Court
Nagajothi vs S. Sikkannan on 9 November, 2021
C.M.A. No. 658 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 09.11.2021
Coram :
THE HONOURABLE MRS. JUSTICE S. KANNAMMAL
C.M.A. No. 658 of 2018
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Nagajothi .. Appellant
Versus
1. S. Sikkannan
2. The United India Insurance Company Limited
Sillingi Building
New No.134, Old No.40-45
Greams Road, Chennai - 600 006. .. Respondents
Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against
the Judgment and Decree dated 05.07.2016 passed in MCOP No. 5687 of 2011
on the file of the Motor Accidents Claims Tribunal IV Judge, Small Causes
Court, Chennai.
For Appellant : Mrs.Ramya V.Rao
For R2 : Mr.P.Sankara Narayanan
JUDGMENT
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This appeal is filed by the claimant in MCOP No. 5687 of 2011,
aggrieved by the Judgment and Decree dated 05.07.2016 passed by the
Tribunal, thereby dismissing her claim petition without awarding any
compensation.
2.The claimant is the mother of the deceased Subbiah, who was 27 years
at the time of his death. The first respondent is the father of the deceased, who
is also the owner of the vehicle driven by the deceased at the time of his death.
The second respondent-Insurance Company is the insurer with which the two
wheeler was insured. Even according to the appellant-claimant, on 10.01.2011
when the deceased was driving the two wheeler Motor Cycle bearing
Registration No. TN 57 P 1770 and proceeding beneath the Padi Over bridge,
he fell down on his own, sustained grievious injury and declared brought dead
by the Doctor attached to the Government General Hospital, Chennai - 600 003.
According to the claimant, the deceased was working as Service Engineer (EBS
Box-Telephone) with M/s. Digital Fine System, Ashok Nagar, Chennai and was
earning Rs.3,300/- per month. By reason of his death, it is contended that the
claimant lost the bread winner in the family. Therefore, the claimant filed the
claim petition claiming a sum of Rs.10 lakhs as compensation from the
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C.M.A. No. 658 of 2018
respondents.
3.The claim petition was resisted by the second respondent-Insurance
Company by contending that due to his own negligence, the deceased fell down
and died due to the injuries caused to him. There was no other motor vehicle
involved in the accident. The deceased is not a third party to the vehicle and he
was driving the two wheeler. Though the first respondent-father of the deceased
is the owner, at the time of accident, when there was no other motor vehicle
involved, the deceased cannot be construed as a third party to the policy of
insurance. Therefore, the Insurance Company prayed for dismissal of the claim
petition.
4.Before the Tribunal, the appellant-claimant examined herself as PW1
and marked Exs. P1 to P7. On behalf of the respondents, one Mr. Ilango was
examined as RW1 and copy of the charge sheet was marked as Ex.R1. The
Tribunal, on considering the oral and documentary evidence, concluded that the
deceased, due to his own negligence, fallen down from the two wheeler and
died. While so, the Insurance Company cannot be mulcted with any liability to
pay the compensation. Accordingly, the Tribunal refused to award any
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C.M.A. No. 658 of 2018
compensation and dismissed the claim petition.
5.The learned counsel for the appellant vehemently contended that the
first respondent is the owner of the two wheeler, and on the fateful day, it was
driven by the deceased, who is the son of the owner and therefore, the deceased
has to be construed as a third party to the policy of insurance. It is further
contended that as per Section 163 (A) of Motor Vehicles Act, 1988 as inserted
by amending Act 54 of 1994, the claimant is entitled for compensation from the
Insurance Company, but the Tribunal erroneously dismsised the claim petition.
Further, in the case of United India Insurance Company vs. Sunil Kumar
and another, 2013 (2) TNMAC 737 (SC), it was held that claim under Section
163 (A) of The Motor Vehicles Act, shall not be defeated by the Insurance
Company or vehicle owner for the reason of any wrongful act, neglect or default
of the victim and the Insurance Company cannot make such defence and hence,
the Tribunal ought to have directed the Insurance Company to pay
compensation.
6.On the other hand, the learned counsel for the Insurance Company
contended that even in the claim petition, it was admitted that the deceased fell
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C.M.A. No. 658 of 2018
down on his own. The negligence is entirely attributable on the part of the
deceased, and the owner of the vehicle in this case was none other than the
father of the deceased and who was impleaded as first respondent in the claim
petition. While so, the Insurance Company cannot be mulcted with the liability
to pay compensation and he prayed for dismissal of the appeal.
7.Admittedly, on the fateful day viz., 10.01.2011, the deceased, while
driving his father's two wheeler - fell down on his own and died to the injuries
he sustained thereof. There is no other motor vehicle involved in the accident.
The deceased cannot be construed as a third party to the insurance policy and
therefore, the claimant cannot claim any compensation from the Insurance
Company. Even though the claim petition was filed under Section 163A of The
Motor Vehicles Act, in this case, even as per the claim petition, the deceased fell
down on his own and died due to the injuries sustained thereof. Therefore, the
Insurance Company cannot be directed to pay compensation to the claimant-
appellant. It is evidently clear that the deceased died due to his own negligence
and therefore, when the deceased himself is the tort-feasor, the Insurance
Company cannot be directed to pay any compensation. The two wheeler of the
deceased is insured with the second respondent Insurance Company and for the
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C.M.A. No. 658 of 2018
own negligence of the deceased himself, compensation cannot be directed to be
paid by the Insurance Company.
8.The Division Bench of this Court, in the case of Divisional Manager,
United Insurance Company Limited vs. Rekha and others reported in 2017
5 Law Weekly 300 had an occasion to consider an identical case. In that case,
the deceased was riding pillion in a two wheeler. The driver of the two wheeler
hit a cyclist. The deceased fell down and died. The legal heirs of the deceased
filed the claim petition and the Tribunal awarded a sum of Rs.51,37,125/- as
compensation. The Division Bench set aside the award passed by the Tribunal
and directed the appellant-Insurance Company to pay a sum of Rs.1 lakhs
towards Personal Accident Coverage. The judgment of the Division Bench is
extracted hereunder:-
26. As far as the present case is concerned, the
deceased was travelling as a pillion rider in the two wheeler
owned by him. Admittedly, the deceased himself was the
owner of the two wheeler. At the time of accident, the driver of
the two wheeler suddenly applied brake and hit a cyclist which
led to the accident. No other motor vehicle has been involved
in this case. Thus, the accident did not involve any other motor
vehicle other than the one in which the deceased was travelling
as a pillion rider. Therefore, the liability of the insurance
company is only to the extent of indemnification of the insured
against the third person or in respect of damages of property.
While so, the insurance company cannot be fastened with any
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C.M.A. No. 658 of 2018
liability under the provisions of the Motor Vehicles Act for the
death of the deceased who himself was the owner of the vehicle
and when no other motor vehicle was involved in this case.
Therefore, the question of the insurer being liable to indemnify
the deceased/owner of the vehicle does not arise. Since the
deceased himself was the owner of the two wheeler and not a
third party, the claim petition filed by the claimants will not
come within the purview of Section 146 or 147 of The Motor
Vehicles Act for the purpose of payment of compensation.
Therefore, we hold that the impugned Judgment and Decree of
the Tribunal cannot be sustained. The Appeal filed by the
Insurance Company deserves only to be allowed. At the same
time, it is needless to mention that the claimants are entitled for
payment of Rs.1,00,000/- only towards Personal Accident
Cover proportionate to the premium paid by the deceased.
9.Further, in a decision reported in Ramkhiladi vs. The United India
Insurance Company and others in Civil Appeal No.9393 of 2019, the Hon'ble
Supreme Court has observed that
“while the deceased may not be considered a third
party in case of the insured vehicle due to their
employment status under the owner of the
aforementioned vehicle, there was no proper evidence on
record to support the fact that the deceased was acting
under the service of the owner of the insured vehicle at
the time of the accident.
In addition to that, the Supreme Court upheld the
judgement of the case Ningamma vs. United India
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C.M.A. No. 658 of 2018
Insurance Co. Ltd, where the Court had held that the
claimant cannot maintain the claim under Section 163A
of Motor Vehicle Act,1988 due to the deceased stepping
into the shoes of the owner during the accident – as
rightly held by the High Court before as well.
The Supreme Court also recognised the fact that there is
no need to prove the fault of the driver, or any vehicles
concerned in the case for the claim petition; however,
the fact that only a third party can seek compensation
under Section 163A of the aforementioned Act cannot
be disputed. The Court also reasoned that the liabilities
of the insurance company would extend as far as the
contract between the company and the owner allows –
and the contract in this case only mentions
compensation for the third party.”
10.The facts in the case on hand is squarely covered by the decision of
the Division Bench of this Court mentioned supra. Therefore, following the
decision of the Division Bench of this Court, the Judgment and Decree dated
05.07.2016 passed in MCOP No. 5687 of 2011 on the file of the Motor
Accidents Claims Tribunal IV Judge, Small Causes Court, Chennai is set aside.
The second respondent - Insurance Company is directed to pay a sum of Rs.1
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C.M.A. No. 658 of 2018
lakh (Rupees One Lakh Only) as compensation to the claimant towards
Personal Accident Cover proportionate to the premium paid by the owner of the
vehicle. The Insurance Company shall deposit the amount of Rs.1 lakh with
interest at the rate of 7.5% per annum from the date of filing the claim petition
till the date of deposit. Such amount shall be deposited within a period of 12
weeks from the date of receipt of a copy of this judgment.
11.With the above observation, the Civil Miscellaneous Appeal is
disposed of. No costs.
gbi 09.11.2021
Speaking Order: Yes
Index: Yes/no
To
1. The IV Judge,
Motor Accidents Claims Tribunal Small Causes Court,
Chennai.
2. The Section Officer
V.R. Section, High Court,
Madras.
S. KANNAMMAL, J
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C.M.A. No. 658 of 2018
gbi
C.M.A. No. 658 of 2018
09.11.2021
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