Karnataka High Court
Smt Sangeetha vs Sri Krishna Chari on 24 September, 2018
Equivalent citations: 2019 (1) AKR 17, (2018) 191 ALLINDCAS 814 (KAR), (2018) 191 ALLINDCAS 814, (2018) 6 KANT LJ 853, (2019) 1 KCCR 199, (2019) 2 ACC 650, 2019 AAC 115 (KAR), (2020) 1 ACJ 61
Author: R Devdas
Bench: R Devdas
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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON' BLE MR.JUSTICE R DEVDAS
MFA NO.5537/2011 (MV)
C/W
MFA NOS.3182/2011 & 1658/2012 (MV)
IN MFA NO.5537/2011
BETWEEN
1. SMT.SANGEETHA
W/O LATE SUBRAMANI,
AGED ABOUT 26 YEARS
2. SRI.BASAVARAJ,
S/O LATE SAGADEVAGANDARA,
AGED ABOUT 61 YEARS
3. KUMARI MONISHA,
D/O LATE SUBRAMANI,
AGED ABOUT 5 YEARS
4. KUMARI ANJALI,
D/O LATE SUBRAMANI,
AGED ABOUT 2½ YEARS
(SINCE THE APPELLANTS 3 & 4 ARE MINORS,
THEY ARE DULY REPRESENTED BY THEIR
MOTHER & NATURAL GUARDIAN THE 1ST
APPELLANT)
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ALL ARE RESIDING AT:
NO.138/12, 3RD CROSS,
6TH MAIN, PIPELINE ROAD,
K. B. NAGAR, BANGALORE-560 026.
... APPELLANTS
(BY SRI. A.K BHAT & SRI. GOPALAKRISHNA. N, ADVOCATES
FOR SRI. K. N. HARISH BABU & ASSTS, ADVOCATES)
AND
1. SRI.KRISHNA CHARI
S/O PUTTACHARI,
NO.126, 4TH MAIN, 4TH CROSS,
CHAMARAJAPET,
BANGALORE - 560 018.
(R.C.OWNER OF THE MOTOR CYCLE
BEARING REG.NO.KA-01-ED-2932)
2. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
D.O.-7, NO.25 & 25/1, II FLOOR,
VINOD COMPLEX, J.C. ROAD,
BANGALORE - 560 002.
... RESPONDENTS
(BY SRI. S. V. HEGDE MULKHAND, ADV. FOR R2,
R1 IS SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:1.4.2011 PASSED IN
MVC NO.908/2010 ON THE FILE OF IX ADDITIONAL SENIOR
CIVIL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT-
7, BANGALORE, DISMISSING THE CLAIM PETITION FOR
COMPENSATION.
-3-
IN MFA NO.3182/2011
BETWEEN:
1. SMT.DHANALAKSHMI
W/O A.N.NARAYANA @ NARAYANA REDDY
AGED ABOUT 45 YEARS.
2. SMT.PRATHIMA
D/O A.N.NARAYANA @ NARAYANA REDDY
AGED ABOUT 27 YEARS.
BOTH ARE RESIDING AT NO.503,
VINAYAKANAGAR, GUJUR POST
VARTHUR, BANGALORE.
... APPELLANTS
(BY SRI. A.K.BHAT & SRI GOPALAKRISHNA N., ADVOCATES
FOR SRI. K. N. HARISH BABU & ASSOCIATES, ADVOCATES)
AND:
1. A.N.NARAYANA,
NO.503, VINAYAKANAGAR,
GUJUR POST, VARTHUR, BANGALAORE.
2. THE BRANCH MANAGER
IFFCO-TOKO GENERAL INSURANCE CO.LTD.,
NO.41, 2ND FLOOR CRISTU COMPLEX,
LAVELLE ROAD, BANGALORE-1.
... RESPONDENTS
(BY SRI. B. C. SEETHARAMA RAO, ADVOCATE FOR R2
R1 IS SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:8.10.2010 PASSED IN
MVC NO.5278/2009 ON THE FILE OF VII ADDITIONAL
JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT-3,
BANGALORE, DISMISSING THE CLAIM PETITION FOR
COMPENSATION.
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IN MFA NO.1658/2012
BETWEEN
SRI. P.HARI
S/O LATE P PACHAIPPAN,
AGED ABOUT 31 YEARS,
R/AT NO.2, 1ST MAIN ROAD,
RAJIV NAGAR, KASTHURI NAGAR,
BANGALORE-560043.
... APPELLANT
(BY SRI. A.K.BHAT & SRI GOPALAKRISHNA N., ADVOCATES
FOR SRI. K. N. HARISH BABU & ASSOCIATES, ADVOCATES)
AND
1. SRI. KESHAVAMURTHY
S/O P.PACHAIPPAN,
NO.2, 1ST MAIN ROAD,
RAJIV NAGAR, KASTHURI NAGAR,
BANGALORE-560043.
2. THE BRANCH MANAGER
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD
GROUND FLOOR, NO.31, TBR TOWER,
1ST CROSS, NEW MISSION ROAD,
NEXT TO JAIN COLLEGE & BANGALORE
STOCK EXCHANGE, J.C.ROAD,
BANGALORE-560016.
... RESPONDENTS
(BY SRI. O.K.HARISH, ADVOCATE FOR R1,
SMT. H. R. RENUKA, ADVOCATE FOR R2)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:15.09.2011 PASSED IN
MVC NO.131/2010 ON THE FILE OF THE I ADDITIONAL
SMALL CAUSE JUDGE, & MACT, BANGALORE, DISMISSING
THE CLAIM PETITION FOR COMPENSATION.
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THESE APPEALS HAVING BEEN HEARD AND
RESERVED ON 28.08.2018 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THIS COURT
DELIVERED THE FOLLOWING:
COMMON JUDGMENT
Whether the rider of a two wheeler, not being the owner, can claim compensation as "Third Party", for an accident where no other vehicle is involved?
2. This is the question that requires consideration in all these appeals. Since a common question in involved in all these appeals, the matters were heard together and are disposed of by this common judgment.
3. Sri A.K.Bhat, learned counsel has led the arguments on behalf of claimants-appellants and Sri. B.C.Seetharama Rao, learned counsel has led the arguments on behalf of the Insurer/respondents. Sri S.V.Hegde Mulkand, learned Counsel has also submitted his arguments on behalf of the Insurer-respondent No.2 in MFA No.5537/2011.
4. The undisputed facts in all these matters are that the two wheelers were ridden by persons who were -6- not the registered owners and there were no other vehicles involved in the accidents and the claim petitions were filed under Section 163A of the Motor Vehicles Act, 1988 ('M.V. Act' for short). The owners and Insurers of the vehicles were arrayed as respondents in each of the petitions. The insurance policies were valid as on the date of the accident and the respective riders were holding valid driving license. The Motor Accident Claims Tribunal has dismissed each of the claim petitions on the ground that the rider of the vehicle was not a "Third Party" and the policy does not cover the risk of a person who is neither a Third Party nor "owner-cum-driver".
5. Sri A.K.Bhat, learned counsel for the claimants has submitted that Section 2(30) of the M.V. Act defines "owner", but the statute does not define "Third Party". The learned counsel has further submitted that when a person hires a vehicle or goods, he is treated as owner so long as he/she is in possession of the vehicle or goods. -7-
6. Attention of this Court was drawn to the definition of the term "Owner" as provided under Section 2(30) of M.V.Act to substantiate that under Hire-purchase Agreement, the person is possession of the vehicle can also be the owner. It should, however, be noted that in none of these cases have the claimants stated that the vehicle in question was "hired". It was contended that the rider may also fall under the category of "borrower" or "employee", depending on the facts and situation of each case. The learned counsel submitted that when a person other than the owner is the driver, he need not always be classified as "borrower". Calling the attention of this Court to the case of National Insurance Company Limited vs. Sinitha and Others1, it was submitted that the onus is on the insurer to prove that the person had borrowed the vehicle. It was submitted that the insurer was also required to plead and prove that the vehicle was borrowed, since the insurer is defending the case of the "insured".
1. AIR 2012 SC 797 -8-
7. The learned counsel Sri A.K.Bhat has strenuously contended that the driver need not be the tort feasor always. It was submitted that the owner of the vehicle could be the tort feasor, if it could be proved that the vehicle was not maintained in good condition or that it was defective and the accident was caused due to the defect in the vehicle.
8. The learned counsel has further submitted that Section 163A starts with a non-obstante clause and therefore all other provisions in M.V. Act which are inconsistent with Section 163A of the M.V.Act will have no application. It was submitted that Section 163A was inserted in the Act with a laudable objective of providing succor and speedy justice to the victims of road accident, without having to prove "negligence" on the part of the driver or owner of the vehicle. The learned counsel laid emphasis on the non-obstante clause and submitted that the restriction of payment of compensation to "Third -9- Party" in Chapter XI, is therefore not applicable to a claim petition made under Section 163A of M.V. Act.
9. The learned counsel has also taken this Court through the provisions of Sections 146 and 147 of the MV Act. It was pointed out that provision was made in the same Chapter of the MV Act to cover the risk of occupants of a light motor passenger vehicle, owner of goods, passengers in Public service vehicle, employees, paid drivers, conductors, cleaners etc, who are not "Third Parties" and therefore, it was submitted that, the rider of a two wheeler would fall under any one of the exemptions carved out under Sections 146 and 147 of the M.V. Act.
10. Learned Counsel Sri B.C.Seetharama Rao, appearing for the Insurance Company has taken this Court through the following judgments, not necessarily in the chronological order:
i) Appaji (since deceased) and Others vs. M.Krishna and Others [(2004) ACJ 1289 (DB-Kar)]
ii) Dhanraj vs. New India Assurance Company Limited [2004) 8 SCC 553] -10-
iii) Deepal Girishbhai Soni vs. United India Insurance Company Ltd [2004) 5 SCC 385]
iv) National Insurance Company Limited vs. Laxmi Narain Dhut [2007) 3 SCC 700]
v) Oriental Insurance Company Limited vs. Jhuma Saha [(2007) 9 SCC 263]
vi) Oriental Insurance Company Ltd. vs. Meena Variyal & Ors [(2007) 5 SCC 428]
vii) Oriental Insurance Co Ltd. vs. Rajni Devi and Others [(2008) 5 SCC 736]
viii) New India Assurance Company Ltd. vs. Sadanand Mukhi [(2009) 2 SCC 417]
ix) Ningamma And Another vs. United India Insurance Company Ltd [(2009) 13 SCC 710]
x) United India Insurance Company vs. Sunil Kumar and Another (AIR 2017 SC 5710)
11. Sri. B.C.Seetharama Rao, learned Counsel, at the outset, submitted that the question raised in these cases stands covered comprehensively in the judgment of a Division Bench of this Court in the case of Appaji (since deceased) and Others vs. M.Krishna and Others2.
2. [(2004) ACJ 1289 (DB-KAR)] -11- In Appaji's2 case also, the rider of the two wheeler died in an accident where a cyclist was involved. The legal representatives who were the claimants before the Tribunal had contended that the deceased tried to avoid the cyclist and there was no collision between the two wheeler and the cycle. It was also contended that the owner of the vehicle had engaged the services of the deceased and therefore, the accident occurred in the course of employment. The claim petition was filed under Section 163A of the M.V. Act. The Tribunal rejected the claim on the ground that the deceased himself was at fault, therefore, the owner of the vehicle could not be held liable to pay compensation.
12. Learned Counsel Sri A.K.Bhat, was the counsel appearing for the appellant-claimants in Appaji's2 case also. He had contended that since Section 163A of the M.V.Act commenced with non-obstante clause, all other provisions in the M.V.Act or any other law for the time
2. [(2004) ACJ 1289 (DB-KAR)] -12- being in force disentitling the claimants from payment of compensation would stand neutralized and rendered ineffective.
13. The Division Bench comprising of Hon'ble T.S.Thakur J., and Hon'ble Abdul S.Nazeer J., then as Judges of this Court had considered every aspect of the issue in great detail. It was argued before the Division Bench that Section 163A of the M.V.Act along with the non-obstante clause was inserted to provide compensation to the victim of a road accident without having to prove negligence on the part of the driver or owner of the vehicle. It was submitted that the intention of the legislature was to provide for compensation even in a situation where the accident in question had caused death or physical injury to none except the person who was rash and negligent in using the motor vehicle. The Division Bench had the occasion to elaborately consider the very same submissions, which were advanced before this Court. The statement and objects and reasons for the introduction of -13- Sections 163A and 163B of the M.V.Act, has been discussed in Appaji's2 case.
14. The Division Bench proceeded to hold that Section 163A was never intended to provide relief to those who suffered in a road accident not because of the negligence of another person making use of a motor vehicle, but only on account of their own rash, negligent or imprudent act resulting in death or personal injury to them. It was observed that the recommendations of the Law Commission were concerned more with the victims of hit- and-run accident cases where the particulars of offenders could not be ascertained and proof of fault on the part of the owner or drive of the vehicle could not be ascertained. It was clearly held that the provision was made from the point of view of victims of accidents and not for the benefit of persons responsible for the accident.
15. The terms 'victim' and 'third party' were also analysed by the Division Bench. It was thereafter held
2. [(2004) ACJ 1289 (DB-KAR)] -14- that Section 163A presupposes that the person who makes a claim is either a victim or his/her legal heir/s. The provision on the plain language employed, does not entitle a person who is neither a victim nor his/her legal heir, to claim any compensation. In other words, one who is the victim of his own actions of rash or negligent driving cannot invoke Section 163A for making a claim. Examples of drunken driving and over speeding which caused accident involving other vehicles or pedestrians were also considered along with cases where no other vehicle or person were involved. The argument that Section 163A is a panacea for all ills concerning the accidents regardless of whether the person who is killed or injured is or is not a victim, was considered and rejected.
16. It would be profitable to note at this juncture that the Apex Court, in the case of New India Assurance Company Limited Vs. Asha Rani3 at paragraph-26, had the occasion to consider the scope of the expression 'any
3. (2003) 2 SCC 223 -15- person' occurring in Section 147 of the Act. It was held that the meaning of the words 'any person' must also be attributed having regard to the context in which they have been used i.e., a 'third party'. Keeping in view the provisions of the 1988 Act, the Apex Court was of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any person travelling in a goods vehicle, the insurers would not be liable therefore. Referring to these observations, the Apex Court, in Ningamma And Another vs. United India Insurance Company Ltd.4 held that the apparently wide words 'any person' are qualified by the setting in which they occur and that 'any person' is to be understood as a third party.
17. The issue was examined from yet another angle. Section 147 of the M.V.Act prescribes the requirement of a policy of insurance in order that the same may be said to comply with the provisions of
4. (2009) 13 SCC 710 -16- Chapter XI. It, inter alia, envisages a policy of insurance which insures the 'person' or class of persons classified in the policy against any liability which may be incurred by him in respect of death or bodily injury or damage to any property of a 'third party' arising out of the use of the vehicle in a public place. It was noted that the policy insures the owner against "any liability which arises against him" on account of any death or injury arising out of a motor accident. In the case of an accident where the person who is killed or injured is himself responsible for the accident without the involvement of any other vehicle or agency, no liability qua the insured would arise except where the person who is killed or injured is an 'employee' of the insured and the accident arises out of his employment. It was categorically held that the basis for actionable negligence and the need to indemnify the insured arises from Section 147 of the M.V.Act. The Division Bench proceeded to hold that in a case where no liability arises against the driver or owner of the vehicle on -17- account of the accident, no such liability will arise even against the insurance company. It was further held that Section 163A of the Act does not alter that legal position. It does not alter the legal basis on which a liability arises under Section 147 of the Act nor does it provide a different or modified basis for the same. It was therefore held that in a case of an accident where the person killed or injured is himself responsible for the accident, no liability would arise against the insured nor can any such liability be enforced under Section 163A of the Act. For a liability under Section 163A of the M.V. Act to arise against Insurance Company, it is essential that such a liability must first arise against the insured under Section 147 of M.V.Act.
18. A reference was also made to a judgment of the High Court of Himachal Pradesh in Kokla Devi vs. Chet Ram5 where the Division Bench was of the view that the non-obstante clause in Section 163A permitted even the
5. 2002 ACJ 650 (HP) -18- tortfeasor to claim compensation on the principle of 'no- fault liability'. After due consideration, the Division Bench in Appaji's2 case held that the non-obstante clause simply dispenses with proof of fault by the claimants against the driver or owner of the vehicle involved in the accident. It was held that, however, it would not mean that the claimant can maintain a claim on the basis of his own fault or negligence and argue that even when he himself may have caused the accident on account of his own rash and negligent driving, he can nevertheless make the Insurance Company pay for the same. Section 163A dispenses with proof of fault, it does so only where the claimant is not solely responsible for the accident.
19. While concluding, in the latter part of paragraph-22, the Division Bench in Appaji's2 case held, "The correct approach appears to us to be to find out whether in the absence of Section 163A, a claim could, on the facts pleaded be maintained by claimant. If the answer is 'no' because the claimant was himself the tort
2. [(2004) ACJ 1289 (DB-KAR)] -19- feasor, the provisions of Section 163A would not come to his rescue and make such a claim maintainable. If the answer is 'yes' the beneficial provisions under Section 163A would absolve the claimant of the obligation to prove that the accident had taken place on account of the fault of the driver or owner of the vehicle provided he is willing to accept the amount of compensation offered according to the structured formula prescribed in the schedule. That is the only way in which the anomaly arising out of a contrary interpretation can possibly be avoided." This question also stand answered in the case of Oriental Insurance Company Limited vs. Jhuma Saha6, which will be referred to later.
20. Placing reliance on the ruling by the Apex Court in Oriental Insurance Company Limited vs. Hansrajbhai V.Kodala7, the Division Bench concluded that the non-obstante clause simply excludes determination of compensation on the principle of fault liability. The said provision does not permit a person to place a premium upon his own fault and make the Insurance Company pay for the same.
6. (2007) 9 SCC 263
7. 2001 ACJ 827 (SC) -20-
21. The Division Bench has viewed the issue from all angles possible. It was held that in cases where the accident involves two vehicles one accusing the other of negligence, it may be open for both to maintain a claim on 'no-fault' basis under Section 163A of M.V.Act. That is because, such a claim will be permissible, no matter the driver or the owner of the other vehicle involved in the accident may dispute his negligence in the matter.
22. The Hon'ble Apex Court has considered the intent and purport of Section 163A of the M.V.Act, in all the cases referred below:
Dhanraj Vs. New India Assurance
Company Limited8,
"8. Thus, 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 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. Section 147 does not require an Insurance Company to assume risk for death or bodily injury to the owner of the vehicle.
8. (2004) 8 SCC 553 -21- Oriental Insurance Company Limited Vs. Jhuma Saha6 "10. The deceased was the owner of the vehicle for the reasons stated in the claim petition or otherwise, he himself was to be blamed for the accident. The accident did not involve motor vehicle other than the one which he was driving. The question which arises for consideration is that the deceased himself being negligent, the claim petition under Section 166 of the Motor Vehicles Act, 1988 would be maintainable.
11. Liability of the Insurance Company is to the extent of indemnification of the insured against the respondent or an injured person, a third person or in respect of damages for property. Thus, if the insured cannot be fastened with any liability under the provisions of the Motor Vehicles Act, the question of the insurer being liable to indemnify the insured, therefore, does not arise."
Ningamma Vs. United India Insurance Company Limited4 "In the present case, the deceased was not the owner of the motor bike in question. He borrowed the said motorbike from the real owner. The deceased cannot be held to be an employee of the owner of the motorbike although he was authorized to drive the said vehicle by its owner and, therefore, he would step into the shoes of the owner of the motorbike..... A bare perusal of the said provision would make it explicitly clear that persons like the deceased in the present case
6. (2007) 9 SCC 263
4. (2009) 13 SC 710 -22- would step into the shoes of the owner of the vehicle." ...
"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 163A of the M.V.A. 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 163A of the M.V.A..... We are of the view that the claimants were not entitled to claim compensation under Section 163A of the M.V.A."
23. In Oriental Insurance Company Limited Vs. Rajni Devi9, the Apex Court has held that Section 163A of the M.V.Act cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved. Taking the interpretation further, it has been held that a person cannot be both, a claimant as also a recipient, with respect to the claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163A of the M.V.Act.
9. (2008) 5 SCC 736 -23-
24. So far as claims relating to own damage are concerned, the Apex Court, in the case of National Insurance Company Limited Vs. Laxmi Narain Dhut10 has held that it has to be decided by another forum i.e., forum created under the Consumer Protection Act, 1985. Therefore, even if the policy is a comprehensive policy covering the risk of the insured, a claim seeking compensation for death or permanent injuries suffered by the insured, a claim petition under any of the provisions of MV Act, is not maintainable. On the same principles, if a contract policy covers not only the owner-cum-driver of the vehicle, but also covers "any other person driving the vehicle", the claim cannot be maintained before Motor Accidents Claims Tribunal (for short 'MACT'). The remedy lies before the Consumer Redressal Forum. Although, this Court has not come across a policy covering risk of a person driving the vehicle, not being "paid driver", the above observation is made keeping in mind the arguments
10. (2007) 3 SCC 700 -24- advanced on behalf of the appellants that the cover for own damages depends on the terms of contract.
25. The use of the word "borrower" in some of the decisions of the Apex Court referred supra, and the observations of the Apex Court in the case of National Insurance Company Limited Vs. Sinitha1 seems to have encouraged the appellants to contend that the onus rested on the insurance company under Section 163A of MV Act, to establish the relationship between the owner of the vehicle and the driver; and further establish that the driver was not an agent, employee or representative of the owner who has stepped into the shoes of the owner.
26. Although, the decision in Sinitha's1 case has been overruled by the larger Bench in United India Insurance Company Limited Vs. Sunil Kumar11, the observation in Sinitha's1 case that the burden of proof lies on the Insurance Company to establish that the driver
1. AIR 2012 SC 797
11. AIR 2017 SC 5710 -25- was not an agent, employee or representative of the owner who has stepped into the shoes of the owner, was not the issue gone into by the larger Bench.
27. On this aspect, the decision of the Division Bench in Appaji's2 case comes handy. In the penultimate paragraph, the Division Bench has held that "The owner of the two-wheeler is an employee of ITI limited. There is no earthly reason for him to engage a driver for driving his scooter, when he is not shown to be even possessed of a Driving Licence. The story about the deceased being an employee is unbelievable and has been rightly rejected."
28. Moreover, in the context of chapter XI of the MV Act, wherever the word "employee" is used, it is impliedly referable to the meaning it receives under the Workmen's Compensation Act, 1923. The arguments advanced by the learned counsel for the appellants that when the son or daughter or wife or a friend is requested by the owner of the vehicle and at his instance, when the vehicle is used, the user of the vehicle should be
2. [(2004) ACJ 1289 (DB-KAR)] -26- construed as an employee of the owner of the vehicle, is neither appealing nor acceptable.
29. The Apex Court in the case of Malikarjuna G. Hiremath Vs. Branch Manager, Oriental Insurance Company Limited And Another12, while analyzing the liability of the insurer under Section 147(1)(b)(i) of the M.V.Act, has referred to Section 3(1) of the Workmen's Compensation Act, 1923 and held, "6. Under Section 3(1) it has to be established that there was some casual connection between the death of the workman and his employment. If the workman dies (a natural death because) of the disease which he was suffering or while suffering from a particular disease he dies of that disease as a result of wear and tear of the employment, no liability would be fixed upon the employer. But if the employment is a contributory cause or has accelerated the death, or if the death was due not only to the disease but also the disease coupled with the employment, then it can be said that the death arose out of the employment and the employer would be liable. xxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxx
22. There are a large number of English and American decisions, some of which have been taken note of in ESI Corpn. case in regard to essential ingredients for such finding and the
12. (2009) 13 SCC 405 -27- tests attracting the provisions of Section 3 of the Act. The principles are:
(1) There must be a causal connection between the injury and the accident and the accident and the work done in the course of employment.
(2) The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury.
(3) If the evidence brought on records establishes a greater probability which satisfies the reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed, but the same would depend upon the fact of each case.
(Emphasis supplied)
30. In Mickinnon Mackenzie & Co. (P) Ltd. Vs. Ibrahim Mahmmed Issak13 at paragraph-5, it is held, "To come within the Act the injury by accident must arise both out of and in the course of employment. The words "in the course of employment" mean "in the course of the work which the workmen is employed to do and which is incidental to it".
31. It would also be profitable to refer to the decision of a Division Bench of the High Court of Kerala at Ernakulam in the case of United India Insurance
13. (1969) 2 SCC 607 -28- Company Limited Vs. L.V. Krishna Pillai14. The Division Bench has held that, "... It is not the purpose for which the vehicle was taken for use from the owner that gives the claim the colour of borrowal. It is the actual ownership of the said vehicle that would decide the question. If the vehicle in question actually owned by one person and taken for use by another, with the consent of that person, the said act can constitute only a process called borrowal. It is only worthwhile to look into the meaning of the word 'borrow'. It means 'to take or obtain (something) on a promise to return it. ....
...We are of the considered view that the relationship between the victim and the owner would not and could not change the nature of the process involved in taking a vehicle by someone from its real owner, whatever be the purpose. It must come within the expression 'borrowal' and therefore, it can only be said that the deceased had borrowed the vehicle from its real owner, the 1st respondent and thereby stepped into the shoes of the owner of the vehicle." ...
32. The Apex Court in Rajni Devi's9 case, clearly held that the deceased cannot be held to be an employee
14. 2017 SCC online Ker. 27914
9. (2008) 5 SCC 736 -29- of the owner of the motorbike although he was authorized to drive the said vehicle by its owner.
33. During the course of the arguments, it was submitted by Sri A.K.Bhat, learned counsel for the appellants that it need not always be presumed that in all cases where no other vehicle is involved in an accident, the driver of the vehicle was himself to be blamed for the accident and neither it can be presumed that the accident occurred due to rash and negligent driving. The learned counsel placed reliance on a judgment of the Division Bench of this Court in the case of Smt. Jabeen Ara @ F.Jabeen Ara and others vs. Superintendent of Police, Motor Transport Office and others in M.F.A.No.5149/2006 (MV) decided on 21.10.2008. In that case, the car driven by the deceased was steered to the left side of the road to avoid another vehicle and brakes were applied. The motor vehicle report established the fact that the tyres were bald and due to bad maintenance, the braking system had failed. It was -30- observed in that case that failure on the part of the owner of the vehicle to keep the vehicle in good roadworthy condition itself is a negligent act of the owner and if accident occurs, the owner is liable for compensation to the road accident victim. That claim petition was filed under Section 166 and more importantly, the driver was an employee of the respondent-Government.
34. The argument of learned counsel and the decision in Jabeen Ara's case (supra), is clearly not applicable to the facts and circumstances of these cases. In none of the claim petitions arising in these appeals had the claimants made allegations against the owners of the two-wheelers that the accident occurred due to bad maintenance of the vehicles nor was it pleaded that the riders were employees of the owners of the vehicles, respectively.
35. To sum up, in the opinion of this Court, a claim petition seeking payment of compensation in a road accident, by the owner of the vehicle or by any other -31- person driving the vehicle and not being an employee, is not maintainable under Section 163A or Section 166 of the M.V.Act, before MACT. This position holds good even where the vehicle is insured for own damages and premium is paid to cover the risk of "owner-cum-driver"
under comprehensive policy or contract policy. The basis for maintaining a petition, both under Sections 163A and 166 of the M.V.Act is provided under Section 147 of the M.V.Act. The difference between Sections 163A and 166 is, the need to prove negligence under Section 166 and non-requirement of proving negligence under Section 163A. The other difference is unlimited liability on the Insurer under Section 166 and payment of compensation on structured formula basis as indicated in the Second schedule of M.V.Act in case of a claim made under Section 163A. The only exception in Section 163A is that a claim petition could be maintained by an employee (or his legal heirs) being a driver/rider having to plead and prove that the motor vehicle accident was caused during the course -32- of employment. As stated earlier, in the context of chapter XI of the MV Act, wherever the word "employee" is used, it is impliedly referable to the meaning it receives under the Workmen's Compensation Act, 1923.
36. The question raised is answered accordingly. The appeals, therefore, deserve to be dismissed and are accordingly dismissed. No order as to costs.
SD/-
JUDGE DL/JT