Madras High Court
The National Insurance Company Limited vs Poosamuthu on 10 September, 2020
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
C.M.A.No.1743 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.09.2020
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
C.M.A.No.1743 of 2019
The National Insurance Company Limited,
F45, Jawaharalal Nehru Salai, Block-25, Neyveli-3,
By its Branch Manager,
Now by National Insurance Company Limited,
Motor Third Party claims cell,
47, 3rd Floor, Moore Street,
Chennai-600 001 .. Appellant
vs.
1.Poosamuthu
2.Kaliyammal .. Respondents
The Civil Miscellaneous Appeal is preferred under Section 173 of the
Motor Vehicles Act, 1988, against the judgment and decree in MCOP.No.15
of 2017 dated 30.11.2017 on the file of the Motor Accident Claims
Tribunal/Subordinate Judge, Neyveli.
For Appellant : Mr.P.Sankaranarayanan
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C.M.A.No.1743 of 2019
For Respondents : Mr.M.Vignesh for RR1 & 2
JUDGMENT
The Judgment and decree dated 30.11.2017 passed in M.A.C.T.O.P.No.15 of 2017 is under challenge in the present appeal.
2. The National Insurance Company Limited is the appellant, who filed an appeal challenging the liability.
3. The learned counsel sterroneously contended that the claim petition is not maintainable, in view of the fact that there is no policy coverage and the claim petition was filed under Section 163(A) of the Motor Vehicles Act.
However, the fact remains that the deceased is the owner of the vehicle which met with an accident and he is responsible for the accident. The owner of the vehicle being not covered under the comprehensive policy, the Tribunal ought not to have entertained the claim petition filed under Section 163(A) of the Motor Vehicles Act. The PA Cover is applicable. However, the PA Cover 2/16 http://www.judis.nic.in C.M.A.No.1743 of 2019 has not yet been cleared and is pending before the Divisional Office and on account of the pendency of the Civil Miscellaneous Appeal, the PA Coverage is not settled so far. However, the appellant/Insurance Company is ready to settle the PA cover as per the terms and conditions of the Insurance Policy.
4. The accident occurred on 07.02.2017 at about 21.20 hrs at Chennai to Kumbakonam Road. A case was registered by SHO, Sozhatharam Police Cuddalore District in Crime No.18 of 2017 under Section 304(A) IPC.
Mr.Karthikeyan/deceased was riding Hero Honda Splendor Pro bearing Registration No.TN-91-Y-8683. Thereafter, the claim petition is filed and the Tribunal adjudicated the issues. The accident occurred due to the fault committed by the deceased himself and there is no other vehicle involved in the accident. The Tribunal made a finding that the accident occurred due to un-controllable driving of the deceased. Therefore, the appellant/Insurance Company is liable to pay compensation on behalf of the deceased, who is the driver of the vehicle which met with an accident and a total compensation of 3/16 http://www.judis.nic.in C.M.A.No.1743 of 2019 Rs.5,14,500/- was granted.
5. The learned counsel appearing for the appellant reiterated that the claim petition itself is not maintainable and in the absence of any policy coverage, the Tribunal has committed an error in granting the compensation.
The deceased is not a third party. Admittedly, he is the owner of the vehicle and while riding the vehicle, he committed an act of negligence and died.
Therefore, absolutely there is no PA coverage as admissible and as per the terms and conditions alone, they can be settled to the claimants.
6. The learned counsel appearing on behalf of the respondents/claimants made a submission that the Tribunal has considered the nature of the claim and further, arrived at a conclusion that the deceased is a third party and awarded compensation. Thus, there is no error in entertaining the claim petition under Section 163(A) of the MV Act. The learned counsel appearing for the respondents/claimants further contended that the family is in 4/16 http://www.judis.nic.in C.M.A.No.1743 of 2019 poverty and they are unable to maintain themselves. The deceased was the sole breadwinner of the family and considering the family circumstances, the Tribunal considered the case of the claimants and awarded compensation.
Therefore, the appeal is to be dismissed.
7. Considering the arguments, the fact remains that there is no other vehicle involved in the accident. The accident occurred due to own act of the deceased person. Admittedly, the deceased was the owner of the vehicle which met with an accident. The Insurance Policy is a comprehensive one and the coverage is available only for third party and it is a statutory cover.
Therefore, there is no coverage for the owner of the vehicle and PA Cover alone is provided under the terms and conditions. The learned counsel for the appellant brought to the notice of this Court that the PA Coverage is pending before the Divisional Office. Due to the pendency of the Civil Miscellaneous Appeal, the PA Cover is not cleared. However, after disposal of the present Civil Miscellaneous Appeal, PA cover will be settled in favor of the 5/16 http://www.judis.nic.in C.M.A.No.1743 of 2019 claimants. As far as the maintainability of the claim petition under Section 163(A) of the Motor Vehicles Act with reference to the comprehensive policy is concerned, this Court delivered a judgment in C.MA.No.1848 of 2017 dated 12.03.2020 in the case of M/s.National Insurance Co. Ltd., Puducherry vs. Rani and others and the relevant paragraphs are extracted hereunder:
“ 7. In this regard, the learned counsel appearing on behalf of the appellant cited the judgment of the Hon'ble Supreme Court of India in the case of Ningamma and Another vs. United India Insurance Co. Ltd [2009 ACJ 2020], wherein in paragraphs 18 and 19, it has been held as under:-
“18. In the case of Oriental Insurance Co. Ltd. vs. Rajni Devi [(2008) 5 SCC 736 : (2008) 3 SCC (Cri) 67] wherein one of us, namely, Hon'ble S.B. Sinha, J. was a party, it has been categorically held that in a case where third party is involved, the liability of the insurance company would be unlimited. It was also held in the said decision that where, however, compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the claimant against the insurance company would depend upon the terms thereof. It was held 6/16 http://www.judis.nic.in C.M.A.No.1743 of 2019 in Oriental Insurance Co. Ltd. case [(2008) 5 SCC 736 : (2008) 3 SCC (Cri) 67] that Section 163-A of the MVA cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved. The decision further held that the question is no longer res integra. The liability under Section 163-A of the MVA is on the owner of the vehicle. So a person cannot be both, a claimant as also a recipient, with respect to claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163-A of the MVA. In our considered opinion, the ratio of the decision in Oriental Insurance Co. Ltd. case [(2008) 5 SCC 736 : (2008) 3 SCC (Cri) 67] is clearly applicable to the facts of the present case. In the present case, the deceased was not the owner of the motorbike in question. He borrowed the said motorbike from its real owner. The deceased cannot be held to be an employee of the owner of the motorbike although he was authorised to drive the said vehicle by its owner and, therefore, he would step into the shoes of the owner of the motorbike.
19. We have already extracted Section 163-A of the MVA hereinbefore. A bare perusal of the said provision would make it explicitly clear that persons like the deceased in the present case would step into the shoes of the owner of the vehicle. In a case 7/16 http://www.judis.nic.in C.M.A.No.1743 of 2019 wherein the victim died or where he was permanently disabled due to an accident arising out of the aforesaid motor vehicle in that event the liability to make payment of the compensation is on the insurance company or the owner, as the case may be as provided under Section 163-A. But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to pay the same is on him. This proposition is absolutely clear on a reading of Section 163-A of the MVA. Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under Section 163-A of the MVA.”
8. The Apex Court held that Section 163-A of the Motor Vehicles Act, cannot be said to have any application in respect of an accident, wherein the owner of the motor vehicle himself is involved. The liability under Section 163-A of the Motor Vehicles Act, 1988 is on the owner of the vehicle. So a person cannot be both, a claimant and also a recipient, with respect to claim. Thus, the heirs of the deceased could not have maintained a claim in terms of Section 163-A of the Motor Vehicles Act.
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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 9/16 http://www.judis.nic.in C.M.A.No.1743 of 2019 (which is not a statutory coverage in terms of Section 147 of the Act.). The said three conditions are mandatory, so as to avail compensation under the Personal 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 reason being in 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 read conjointly for the purpose of granting 10/16 http://www.judis.nic.in C.M.A.No.1743 of 2019 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 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 11/16 http://www.judis.nic.in C.M.A.No.1743 of 2019 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 maintain 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, the 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 only. Thus the deceased cannot be said to be a third party with 12/16 http://www.judis.nic.in C.M.A.No.1743 of 2019 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 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 13/16 http://www.judis.nic.in C.M.A.No.1743 of 2019 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.”
8. In view of the facts and circumstances, this Court is of the considered opinion that the Tribunal has committed an error in entertaining the claim petition under Section 163(A) of the MV Act. In the absence of policy coverage, the Tribunal ought not have awarded the compensation.
However, the respondents/claimants are entitled for PA Coverage and the learned counsel for the appellant made a submission that the PA Coverage amount will be settled in favor of the claimants soon after the disposal of the appeal. Thus, the appellant is directed to settle the PA Cover at the earliest point of time to the respondents/claimants. Accordingly, the Judgment and 14/16 http://www.judis.nic.in C.M.A.No.1743 of 2019 Decree dated 13.11.2017 passed in M.A.C.T.O.P.No.15 of 2017 is set aside and the Civil Miscellaneous Appeal stands allowed. No costs.
10.09.2020 Index : Yes/No Internet: Yes/No Speaking Order/Non-Speaking Order ssb To
1.The Motor Accident Claims Tribunal, Subordinate Judge, Neyveli.
2.The Section Officer, V.R Section, High Court, Madras.
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