Madras High Court
The Iffcotokio General Insurance ... vs K.Pazhanivel on 29 November, 2022
C.M.A.No.3530 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 29.11.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
C.M.A.No.3530 of 2021
and C.M.P.No.20449 of 2021
The IffcoTokio General Insurance Company Limited
No.43/3, First Floor
100 Feet Road,
Mudaliarpet,
Pondicherry – 605 004. …Appellant
Vs.
1.K.Pazhanivel,
2.P.Mahalakshmi
3.J.Reena Devi ...Respondents
PRAYER :The Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988 against the Judgment and Decree made in
M.C.O.P.No.3974 of 2016 dated 07.08.2021 on the file of the Motor Accidents
Claims Tribunal, Special Subordinate Court, Cuddalore.
https://www.mhc.tn.gov.in/judis
1/14
C.M.A.No.3530 of 2021
For Appellant : Mr.M.B.Raghavan
For R1 and R2 : Mrs.Ramya V Rao
For R3 : No appearance
JUDGMENT
(Judgment of the Court was delivered by SUNDER MOHAN.J.)
Challenging the award passed by the Motor Accidents Claims Tribunal,
Special Subordinate Court Cuddalore in M.C.O.P.No.3974 of 2016 dated
07.08.2021 filed under Section 163-A of the Motor Vehicles Act, the appellant
had preferred the above appeal.
2.The respondents 1 and 2 filed a claim petition under Section 163–A of
the Motor Vehicles Act stating that on 21.05.2006 at about 3 A.M., their son
one Mr.P.Nanda Kumar while riding the motorcycle belonging to the third
respondent herein bearing Reg.No.PY-01-CH-9037 at Madavamedu while
trying to avoid a pedestrian, fell down and sustained grievous injuries and died
subsequently. It is the case of the respondents 1 and 2 that the deceased
Mr.P.Nanda Kumar was aged 21 years at the time of the accident and was
working as a fisherman and was doing sea food business earning a sum of
Rs.3,300/- per month. The respondents 1 and 2 therefore claimed a sum of
Rs.25,00,000/- towards compensation against the third respondent herein and
the appellant/insurer.
https://www.mhc.tn.gov.in/judis
C.M.A.No.3530 of 2021
3.The third respondent herein remained exparte before the Tribunal.
4.The appellant filed a counter statement denying the averments made in
the claim petition. The respondents 1 and 2 are not entitled to compensation
since the deceased was a rider of the two wheeler and he had stepped into the
shoes of the owner of the two wheeler and as such he is not entitled to
compensation under Section 163–A of the Motor Vehicles Act. In any event, the
deceased did not have a valid two wheeler license and the compensation sought
for by the respondents 1 and 2 is exorbitant and the claim petition is liable to be
dismissed and prayed for dismissal of the claim petition.
5.Before the Tribunal, the first respondent himself examined as P.W.1
and marked Ex.P.1 to Ex.P.5. The appellant examined R.W.1 and R.W.2 and
marked Ex.R.1 on their side.
6.The Tribunal after considering the pleadings, evidence and documents
on record awarded a compensation of Rs.29,75,000/- and directed the appellant
to pay the compensation to the respondents 1 and 2, holding that the
respondents 1 and 2 need not prove the negligence for the claim made under
Section 163-A of the Motor Vehicles Act.
https://www.mhc.tn.gov.in/judis
C.M.A.No.3530 of 2021
7.Against the said award and decree dated 07.08.2021 made in
M.C.O.P.No.3974 of 2016, the appellant has filed the present appeal.
8.The learned counsel for the appellant submitted that the claim under
Section 163–A of the Motor Vehicles Act is based on no fault liability principle.
Admittedly, the deceased was a permissive user of the borrowed vehicle. It is
not the case of the respondents 1 and 2 that the deceased was employed with
the owner of the two-wheeler namely third respondent herein and therefore, as
a third party he is entitled for compensation. Since the deceased was a borrower
of the vehicle he had stepped into the shoes of the owner of the vehicle and
Section 163–A of the Act cannot apply wherein the owner of the vehicle
himself is involved. Thus, the respondents 1 and 2 cannot maintain a claim
against the appellant under Section 163-A of the Motor Vehicles Act and prayed
for setting aside the award of the Tribunal.
9.The learned counsel for the appellant relied upon the Judgment of the
Hon’ble Apex Court in Ramkhiladi and another vs. United India Insurance
Co.Ltd reported in (2020) 2 SCC 550. The learned counsel also relied upon the
Judgment of the learned Single Judge of this Court in the following cases:-
https://www.mhc.tn.gov.in/judis
C.M.A.No.3530 of 2021
(i) New India Insurance Co.Ltd vs. Gurumoorthy reported in 2021 (2)
TNMAC 574.
(ii) The Divisional Manager, the Oriental Insurance Co. Ltd vs.
Nagarathinam and others in C.M.A.No.2132 of 2013 and M.P.No.1 of 2013.
(iii) Branch Manager, National Insurance Co. Ltd. Vs. Vennila and
others inC.M.A.No.726 of 2013.
10.The learned counsel for the respondents 1 and 2 submitted that the
Tribunal had considered the submissions and rightly concluded that the
respondents are entitled to compensation payable by the appellant. The Tribunal
found that the respondents 1 and 2 are entitled to compensation under Section
163 - A of the Motor Vehicles Act and they need not establish the negligence on
any person. The learned counsel for the respondents 1 and 2 further submitted
that the reading of the Judgment of Hon’ble Apex Court in Ramkhiladi and
another vs. United India Insurance Co. Ltd reported in (2020) 2 SCC 550
shows that the earlier three Judge bench Judgment of Hon’ble Apex Court in
United Insurance Company Ltd., vs. Sunil Kumar and another was not
brought to the notice of the Hon’ble Apex Court in Ramkhiladi’s case. The
learned counsel submitted that the Hon’ble Apex Court in the Judgment of
United India Insurance Company Limited vs. Sunil Kumar and another
https://www.mhc.tn.gov.in/judis
C.M.A.No.3530 of 2021
reported in (2019) 12 SCC 398 held that it is not open for the Insurer to raise
any defense of negligence on the part of the victim in a proceeding under
Section 163-A of the Motor Vehicles Act and hence the learned counsel prayed
for dismissal of the appeal.
11.Heard the learned counsels on either side and perused the materials on
record.
12.We find that there is no conflict in the views expressed by the Hon’ble
Apex Court in Ramkhiladi and another vs. United India Insurance Co. Lt’s
case (cited supra) and United India Insurance Company Limited vs. Sunil
Kumar and another’s case (cited supra) as submitted by the learned counsel
for the respondents 1 and 2. In Sunil Kumar’s case, the Hon’ble Apex Court
had dealt with the question as to whether it is open for the Insurer to raise any
defence of negligence on the part of the victim in proceedings under Section
163-A Motor vehicles Act. The Hon’ble Apex Court held that the Insurer
cannot raise any defence or negligence on the part of the victim. However, the
question as to whether the owner of the two wheeler can be both the deceased
and recipient was not gone into by the Hon’ble Apex Court in Sunil kumar’s
case. The said question was considered by the Hon’ble Apex Court in
https://www.mhc.tn.gov.in/judis
C.M.A.No.3530 of 2021
Ramkhiladi vs Union Insurance company and another (cited supra). The
Hon’ble Apex Court held that no fault liability principle incorporated in Section
163 - A of Motor Vehicles Act does not mean that the owner of the
Vehicle/Insured can maintain an application under Section 163-A of the Motor
Vehicles Act. The Hon'ble Apex Court further held that the borrower of the two
wheeler who is tort feasor steps into the shoes of the owner of the two wheeler
and hence, he cannot claim compensation under Section 163-A of the Motor
Vehicles Act. The relevant portions of the Judgment of the Hon’ble Apex Court
in Ramkhiladi's case (cited supra) is extracted herein for the better
understanding:-
“9.5. It is true 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 maintain a
claim under Section 163-A 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
https://www.mhc.tn.gov.in/judis
C.M.A.No.3530 of 2021
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 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.In the instant case also the terms of the Insurance policy is that the
appellant is not liable to compensate if the tort feasor is the owner of the two
wheeler or any person who steps into the shoes of the owner of the two
wheeler. In this case, admittedly the deceased is the borrower of the two
wheeler and he is not an employee of the owner, to be treated as third party,
who is entitled to claim compensation under Section 163- A of Motor Vehicles
Act.
https://www.mhc.tn.gov.in/judis
C.M.A.No.3530 of 2021
14.One of us sitting single (Ms.Justice V.M.Velumani) has dealt with this
issue and held that where the deceased was a tort feasor and a permissive user
of the vehicle steps into the shoes of the owner of the two wheeler and as such
he is not entitled to compensation. The following are the relevant portions of
the Judgments of this Court in New India Insurance Co.Ltd vs. Gurumoorthy
reported in 2021 (2) TNMAC 574 which is extracted hereunder for better
understanding:-
“24.In the present case, from the materials available on
record, it is seen that the deceased who was riding the motorcycle at
the time of accident, borrowed the motorcycle from the 3rd
respondent who is the brother of the pillion rider, dashed against
another motorcycle and both of them fell down. The pillion rider,
who has lodged the complaint, has stated that the deceased dashed
against other motorcycle, they fell down and sustained injuries. He
has also stated that they could not notice the other motorcycle. From
the above materials, it is clear that at the time of accident, the
deceased was riding the motorcycle borrowed from the owner and
had stepped into the shoes of the owner. In view of the judgments
referred to above, the legal heirs of the deceased who was the tort-
feasor, are not entitled to maintain the claim petition under Section
163-A of the Act, as the deceased himself was the tort- feasor. The
learned counsel appearing for the respondents 1 and 2 further
contended that the deceased was working as a Civil Engineer and
was earning a sum of Rs.10,000/- per month, which exceeds the
maximum income as mentioned in the II Schedule of the Act. A
https://www.mhc.tn.gov.in/judis
C.M.A.No.3530 of 2021
claimant or legal heirs of the deceased can maintain the claim
petition under Section 163-A of the Act, if the annual income does
not exceed Rs.40,000/- and the Courts can grant compensation as
per the structural formula in the II Schedule.”
The relevant portions of the Judgment of Branch Manager,
National Insurance Co. Ltd., vs. Vennila and others reported in (2021) 1 TN
MAC 746 is as follows:-
21. The issue of maintainability of the claim petition by
owner or rider under Section 163-A of the Act is again considered
by the Hon'ble Apex Court in the judgment reported in (2020) 1 TN
MAC 1 (SC) cited supra, wherein it has been held that claim
petition filed under Section 163-A of the Act by owner or borrower
of vehicle is not maintainable as borrower steps into the shoes of
the owner.
22. 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 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 v. United India Insurance Co. Ltd.], 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
https://www.mhc.tn.gov.in/judis
C.M.A.No.3530 of 2021
earlier judgment, especially (2009) 2 TN MAC 169 (SC)
[Ningamma 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 TN MAC 149 (SC) [Shivaji v.
United India Insurance Co. Ltd.] and (2017) 2 TN MAC 753 (SC)
[United India Insurance Co. Ltd. v. Sunil Kumar] 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.”
23. In the present case, from the materials available on
record, it is seen that the deceased who was riding Motorcycle
borrowed from his employer, the 5th respondent herein, caused
accident by hitting the persons who crossed the road, fell down,
sustained injuries and died. The FIR was registered against the
deceased/rider of the Motorcycle. From the above materials, it is
clear that the deceased was riding the Motorcycle borrowed from
the owner and had stepped into the shoes of the owner. In view of
the judgments referred to above, the legal heirs of the deceased who
was the tort-feasor are not entitled to maintain the claim petition
under Section 163-A of the Act, as the deceased himself was the
tort-feasor.”
https://www.mhc.tn.gov.in/judis
C.M.A.No.3530 of 2021
The above judgments would clearly show that the deceased is not
entitled to claim compensation under Section 163-A of the Motor Vehicles Act
since he is a tort feasor and steps into the shoes of the owner of the two
wheeler.
15.In the result, we hold that the appellant is not liable to pay any
compensation to the respondents 1 and 2. Hence the C.M.A.No.3530 of 2021
is allowed and the award of the Tribunal directing the Appellant to pay
compensation is set aside. The Appellant Insurance/ Company is permitted to
withdraw the amount, lying in the deposit of the credit of M.C.O.P.No.3974 of
2016 on the file of Motor Accident Claims Tribunal, Special Subordinate Court,
Cuddalore, if the award amount has already been deposited by them. It is made
clear that if the respondents 1 and 2 have already withdrawn the Award amount,
the Appellant/Insurance Company is not entitled to recover the same from the
respondents 1 and 2. Consequently, connected miscellaneous petition is closed.
No Costs.
(V.M.V.,J) (S.M.,J)
29.11.2022
Index: Yes/No
dk
https://www.mhc.tn.gov.in/judis
C.M.A.No.3530 of 2021
To
1. The Special Subordinate Judge,
Motor Accidents Claims Tribunal
Cuddalore.
2.The Section Officer
VR Section
High Court of Madras
Chennai – 600 104
https://www.mhc.tn.gov.in/judis
C.M.A.No.3530 of 2021
V.M.VELUMANI,J.
and
SUNDER MOHAN,J.
dk
C.M.A.No.3530 of 2021
and C.M.P.No.20449 of 2021
29.11.2022
https://www.mhc.tn.gov.in/judis
