Madras High Court

S. Santharaj vs B. Samuel Nesaraj on 22 December, 2023

                                                                                        C.M.A. No.1915 of 2021


                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                          DATED : 22.12.2023

                                                              CORAM:

                                    THE HONOURABLE MR. JUSTICE K. RAJASEKAR

                                                      C.M.A. No. 1915 of 2021

                     S. Santharaj                                  ... Appellant / Petitioner

                                                                 Vs.

                     1.           B. Samuel Nesaraj

                     2.           National Insurance Company Limited,
                                  Motor Third Party Claims Office,
                                  No.751, Anna Salai,
                                  Chennai - 600 002.            ... Respondents / Respondents


                                  Civil Miscellaneous Appeal filed under Section 173 of Motor
                     Vehicles Act, 1988 against the Judgment and decree dated 01.08.2019
                     passed in M.A.C.T.O.P. No. 2019 of 2014 on the file of the II Judge, Motor
                     Accident Claims Tribunal, II Court of Small Causes, Chennai.


                                  For Appellant       :      Mr. F. Terry Chella Raja
                                  For R1              :      No Appearance
                                  For R2              :      Mr. D. Bhaskaran




                                                             JUDGMENT

https://www.mhc.tn.gov.in/judis

This Civil Miscellaneous appeal has been filed by the claimant

challenging the dismissal of claim petition awarded in M.A.C.T.O.P. No.

2019 of 2014, dated 01.08.2019 on the file of the II Judge, Motor Accident

Claims Tribunal, II Court of Small Causes, Chennai.

2. For the sake of convenience, the parties are referred herein

according to their litigative status and rank before the Tribunal.

3. On 28.01.2014, at about 16:15 hours, the claimant was riding a

motorcycle bearing Registration No.TN-37-CE-2259 on the Gandhi

Mandapam road, while he reached near Anna University outer gate,

motorcycle hit a pit in the middle of the road and skidded, due to which the

claimant was thrown out and sustained grievous injuries. A case was

registered in Cr.No.122/AM3/2014 U/s. 279, 337 of IPC on the file of J2,

Adyar Traffic Investigation, Besant Nagar, Chennai. For the injuries

sustained, the claimant has filed claim petition seeking compensation for a

sum of Rs.27,10,000/- under section 163-A of the Motor Vehicles Act, 1988.

4. The first respondent, who is the owner of the motorcycle

https://www.mhc.tn.gov.in/judis

bearing Registration No.TN-37-CE-2259 has not contested the claim and

remained ex-parte. The second respondent – insurance company has filed a

counter and denied the manner of the accident and further stated that FIR

was registered belatedly after a period of 17 days from the date of accident.

The insurance company also contended that after investigation, in the charge

sheet, it is categorically stated that the claimant himself is a tortfeasor, who

has ridden the motorcycle in rash and negligent manner and hit on the center

median and invited the accident, hence prays to dismiss the claim petition.

5. Before the Tribunal, on the side of the claimant P.W.1 to P.W.4

were examined and Exs.P.1 to P.15 were marked. On the side of the

respondent, R.W.1 was examined and Exs.R.1 to R.5 were marked.

6. Based on the evidence placed on record, the Tribunal in point

no.1, has held that the claimant himself is a tortfeasor, who has ridden the

motorcycle in a rash and negligent manner and invited the accident, hence

the petition filed under section 163(A) of the Motor Vehicles Act is not

maintainable and dismissed the claim petition.

https://www.mhc.tn.gov.in/judis

7. Aggrieved over the dismissal of claim petition, the claimant has

filed this appeal.

8. The learned counsel appearing for the claimant has submitted

that under section 163-A of the Motor Vehicles Act, no negligence need to

be proved and not withstanding any other provision in the act or any other

act. A special scheme has been granted under 163-A for granting

compensation without proving the negligent. He further submitted that the

Tribunal without considering the fact that even though, there is no third party

involvement in the accident and on no fault liability the claimant is entitled

to get compensation, hence prays to set aside the award of the Tribunal. In

support of his contention, he relied on the judgment of Hon'ble Apex Court

in Shivaji and another vs. Divisional Manager, United India Insurance

Co. Ltd & others [CDJ 2018 SC 817] and judgment of this Court in

IFFCO-TOKIO General Insurance Company Ltd., vs. S. Ilangovan and

Another [CDJ 2018 MHC 5168].

9. Per contra, the learned counsel for the insurance company

submitted that the Tribunal based on the evidences placed on record has

https://www.mhc.tn.gov.in/judis

rightly rejected the claim petition, hence prays to confirm the award.

10. Heard the submissions made on both sides and perused the

materials available on record:

11. In this case, the claimant while travelling in a two wheeler ran

over a pit and skidded on the road, thereby sustained injuries. The accident

has taken place without involvement of any third party vehicle, hence the

Tribunal has held that the claimant himself is a tortfeasor and the claim

petition filed by the claimant invoking section 163-A of the Motor Vehicles

Act is not maintainable and rejected the same.

12. Scope of awarding compensation under section 163-A of the

Motor Vehicles Act to the rider of the two wheeler for the injuries sustained

by him, without involvement of any third party vehicle was considered by

the Apex Court in Ram Khiladi and another vs. the United India Insurance

Co. Ltd. and another [2020 (1) TNMAC 1 (SC)], has held when the rider of

the two wheeler steps into the shoes of the owner of the vehicle, in paragraph

9.5 as follows:

https://www.mhc.tn.gov.in/judis

“ 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 insurance and under the contract of insurance the liability of the insurance company would 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 vs. New India Assurance Co. Ltd.,[(2004) 8 SCC 553], 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. The above observation has been followed in several judgments

of this Court. The claimant has relied on the Apex Court judgment of

https://www.mhc.tn.gov.in/judis

Shivaji and another vs. Divisional Manager, United India Insurance Co.

Ltd & others [CDJ 2018 SC 817] in support of their case, wherein in the

said case, the claim is made by the driver of the vehicle, who is not a

burrower of the vehicle, he was an employee of the owner of the vehicle

therein, hence the Apex Court has held that the driver, who has been

employed by the owner of the vehicle is entitled to get compensation under

no fault liability and based on the insurance coverage, the compensation was

awarded. This Court judgement in IFFCO-TOKIO General Insurance

Company Ltd., vs. S. Ilangovan and Another [CDJ 2018 MHC 5168] has

been passed prior to the judgment of the Apex Court in Ram Khiladi and

another vs. the United India Insurance Co. Ltd. and another case cited

supra, hence the judgment of the Apex Court prevails over the same.

14. This Court in number of judgments has followed the Ram

Khiladi and another judgement and this Court in United India Insurance

Co. Ltd., vs. B. Sudha and others in C.M.A. No.660 of 2015, dated

05.03.2020 in paragraph 10 and 12 held as follows:

"10. 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

https://www.mhc.tn.gov.in/judis

the parties. In the event of superseding the terms of contract, then the very legality of the Low 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.

...

12. 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 Provision 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 cases 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 present case, the claim petition is unsustainable and not entertainable and liable to be rejected."

15. The learned counsel for the appellant also relied on the Division

Bench judgment of this Court in S. Shantha and another vs.

https://www.mhc.tn.gov.in/judis

C.Kumarasamy and others in C.M.A. No.1268 of 2022, dated 14.12.2023,

wherein this Court has considered the definition of the 'Owner' under section

2(30) of the Motor Vehicles Act, 1988, which reads as follows:

"2(30): 'owner' means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase, agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement."

16. Based on the above observation, Court has held that the person,

who has the physical possession of the vehicle is not the actual owner of the

vehicle. In this case, the claimant herein has not come forward to claim

compensation treating himself as 'Owner', whereas he is the borrower of the

vehicle at the time of accident. As held in the judgment of Ram Khiladi and

another vs. the United India Insurance Co. Ltd. and another cited supra,

the claimant who is a tortfeasor himself, is not entitled to claim

compensation under section 163-A of the Motor Vehicles Act, hence the

appeal filed by the claimant is liable to be dismissed.

17. In the result, this Civil Miscellaneous Appeal is dismissed. No

cost.

https://www.mhc.tn.gov.in/judis