Kerala High Court
The National Insurance Co. Ltd vs Shibi Mohanan on 3 January, 2022
Author: T.R.Ravi
Bench: T.R.Ravi
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
MONDAY, THE 3RD DAY OF JANUARY 2022 / 13TH POUSHA, 1943
MACA NO. 1092 OF 2016
AGAINST THE AWARD IN OPMV 328/2014 DATED 01.01.2016 OF
ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL II, THODUPUZHA
APPELLANT/2ND RESPONDENT:
THE NATIONAL INSURANCE CO. LTD.
ERNAKULAM,
REPRESENTED BY ITS DEPUTY MANAGER,
REGIONAL OFFICE, 2ND FLOOR,
OMANA BUILDING, M.G.ROAD, KOCHI 35.
BY ADVS.
SRI.GEORGE CHERIAN (SR.)
SMT.LATHA SUSAN CHERIAN
SMT.K.S.SANTHI
RESPONDENT/CLAIMANT:
SHIBI MOHANAN
W/O.MOHANAN, THALACHIRAYIL HOUSE,
DEEPTHI NAGAR, CHATTUPARA,
ADIMALI PO,
MANNAMKANDAM VILLAGE,
PIN 685 561.
BY ADV SRI.P.CHANDY JOSEPH
SRI.C.K.VIDHYASAGAR
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 23.12.2021, THE COURT ON 03.01.2022
DELIVERED THE FOLLOWING:
M.A.C.A. No.1092 of 2016
2
T.R. RAVI, J.
--------------------------------------------
M.A.C.A.No.1092 of 2016
--------------------------------------------
Dated this the 3rd day of January, 2022
JUDGMENT
The car driven by the respondent's husband met with an accident. The car belonged to the respondent and she is the insured. The respondent sustained serious injuries. In the claim petition filed by the respondent, the Tribunal awarded a compensation of Rs.1,92,380/-. The 2nd respondent insurer has filed the appeal challenging the award on the ground that the Insurance Company cannot be held liable.
2. Heard Sri George Cherian, Senior Advocate, instructed by Smt.K.S.Santhi on behalf of the appellant and Sri C.K.Vidyasagar on behalf of the respondent.
3. The facts are not in dispute. The accident happened on 12.1.2014. The respondent/owner of the vehicle was travelling along with her husband, who was driving the car. The main contention of the appellant is that the respondent cannot be treated as a third party and is hence not covered under Section 147 of the Motor Vehicles Act.
4. The counsel for the appellant referred to Section 147 of M.A.C.A. No.1092 of 2016 3 the Motor Vehicles Act, 1988 to contend that what is covered by the policy is only the liability of the insured by reason of death of or bodily injury to any person including the owner of goods carried in the vehicle, which will not include the insured himself. The counsel relied on the decisions in Oriental Insurance Co. Ltd. v. Sony Cherian reported in [(1999) 6 SCC 451], Dhanraj v. New India Assurance Co. Ltd. reported in [2004 (3) KLT 813], Oriental Insurance Co. Ltd. v. Smt. Jhuma Saha & Ors. reported in [(2007) 9 SCC 263], Oriental Insurance Co. Ltd. v. Rejni Devi & Ors. reported in [2008(4) KLT 145], Oriental Insurance Co.Ltd. v. Sudhakaran K.V. & Ors. reported in [(2008) 7 SCC 428], United India Insurance Co. Ltd. v. Vijayarajan & Ors. reported in [2009 (3) KHC 158], Bhagyalakshmi & Ors. v. United Insurance Co. Ltd. & Anr. reported in [(2009) 7 SCC 148], Oriental Insurance Co Ltd v. K.T.Devassia & Anr. reported in [2011 (2) KLT 53], National Insurance Co. Ltd. v. Balakrishnan & Ors. reported in [(2013) 1 SCC 731], Ramkhiladi & Anr v. United India Insurance Co.Ltd & Anr. reported in [(2020) 2 SCC 550] in support of his contentions.
5. In Sony Cherian (supra), it was held that the terms of the policy should be strictly construed. In Dhanraj (supra), it was M.A.C.A. No.1092 of 2016 4 held that the insurance policy only covers the liability of the insured and that the company need not take over the liability for the death or injury to the owner/insured. In Jhuma Saha (supra) it was held that the insurer cannot be held liable in a case where an owner/driver dies in an accident for which he himself was responsible. In Rejni Devi (supra) it was held that the legal heirs of a deceased owner/insured cannot maintain a claim against the Insurance Company. In Sudhakaran (supra) it was held that the pillion rider who is a gratuitous passenger is not covered by a personal accident policy covering the owner. In Vijayaraj (supra) a Division Bench of this Court held that the owner/driver policy covers only the driver who is also the owner of the vehicle. In Bhagyalakshmi (supra) the issue whether a gratuitous passenger or pillion rider is covered was referred to a Larger Bench. In Devassia (supra) it was held that the owner alone is covered by the personal accident cover. In Balakrishnan (supra), the Apex Court after noticing that the issue regarding gratuitous passenger and pillion rider was referred to a Larger Bench, in view of the circulars issued thereafter by the IRDA, held that in the case of a comprehensive/package policy, the occupants in a car are also covered. In Ramkhiladi (supra), the Apex Court held that in order to be covered, the deceased has to be a third party and that M.A.C.A. No.1092 of 2016 5 the claim against the owner and insurer of the vehicle which was being driven by the deceased will not be maintainable. The counsel for the respondent relied on the decision in National Insurance Co.Ltd. v. Krishnan reported in [2014 KHC 5694], in which the Madras High Court had taken a view that the expression owner- cum-driver cannot be split up in order to make the policy enforceable only if the driver is also the owner and held that once an occupant in a car is covered, as laid down in Balakrishnan (supra), necessarily the owner who is travelling as an occupant is also covered, when he has taken a personal accident cover.
6. In a recent judgment in Vasuki v. Santhi in Civil Appeal No.6257-6258 of 2021, the Hon'ble Supreme Court has reversed the judgment of this Court in M.A.C.A.No.84 of 2016. In the said case the Tribunal had granted compensation to the legal representatives of the deceased driver, who was none other than the husband of the insured. But in appeal, this Court had held that the Insurance Company was not liable. The Hon'ble Supreme Court held that the Insurance Company was liable to pay the compensation. The Court has drawn a distinction from the decision in Ramkhiladi (supra) on facts and held that on the facts there was nothing to show that the liability of the Insurance Company was limited.
M.A.C.A. No.1092 of 20166
7. In the case on hand, the policy in question is a private package policy, in which additional premium has been paid for personal accident coverage of the owner. There can be no dispute with regard to the propositions laid down in Balakrishnan (supra) as well as in Ramkhiladi (supra). All that the Hon'ble Supreme Court has held is that in the case of a package policy the liability of the insured which is covered by the insurance policy, will cover the pillion rider as well as the occupants in a car. The judgment can only be understood to mean that the insured will stand indemnified towards his/her liabilities. That will not by itself oblige the insurer to compensate the injuries that may be sustained by the owner, who is either driving or travelling as a pillion rider or as an occupant. Such an obligation will arise only if there is a personal accident coverage offered in the policy, on payment of additional payment. Even in such cases, the liability of the insurer is only as spelt out in the contract between the owner and the insurer (insurance policy). Ext.B1 policy clearly shows that additional premium of Rs.100/- has been paid towards compulsory personal accident cover. Section III of the policy dealing with personal accident cover for owner-driver says that the company undertakes to pay compensation not exceeding Rs.2 lakhs in cases of the four types of injuries detailed therein. It is seen that in M.A.C.A. No.1092 of 2016 7 cases of death, (or) loss of two limbs or sight of two eyes or one limb and sight of one eye, (or) permanent total disablement from injuries other than above, the liability of the insurer is 100% of the total cover i.e. Rs.2 lakhs. The only other coverage is regarding loss of one limb or sight of one eye, in which case the coverage is for 50% i.e. Rs.1 lakh. It is specifically stated that the liability to compensate shall be only with respect to the enumerated injuries. Admittedly, the respondent has not sustained any of the injuries that have been enumerated in the policy, regarding the personal accident coverage that has been extended on the basis of the additional premium. It is settled law that this court cannot rewrite the contract between the parties and make the insurer liable to compensate for injuries that they have not undertaken to compensate under the contract between the parties. On the facts of the case, the order passed by the Apex Court in Vasuki (supra) will also not apply.
In the result, the appeal is allowed and the award passed by the Tribunal is set aside.
Sd/-
T.R. RAVI JUDGE dsn