M/S.National Insurance Co Ltd v. G.Lourdunathan

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Date of Reserving Judgment 04.03.2021 Date of Pronouncing Judgment 21.04.2021

CORAM

THE HONOURABLE MR. JUSTICE RMT.TEEKAA RAMAN C.M.A.No.2897 of 2015 and M.P.No.1 of 2015 M/s. National Insurance Co. Ltd., No.165, Nethaji Road, Manjakuppam, Cuddalore.

.. Appellant /2nd Respondent Vs.

1.G. Lourdunathan ..1st Respondent/Petitioner 2.S. Gunasekar .. Respondents Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree passed in M.C.O.P.No.1795 of 2013 on 06.07.2015 on the file of the Motor Accident Claims Tribunal (Special Subordinate Judge) at Cuddalore District.

For Appellant : Mr. J. Chandran For Respondents: M/s. Ramya Rao, for Mr. S. Chakravarthy, for R1 R2 - No Appearance

J U D G M E N T

The appellant is the Insurance Company, which is challenging the award passed by the tribunal on the ground of liability.

2.

The admitted facts of the case as per pleadings and the evidence of P.W.1 is that while the claim petitioner was riding the motorcycle PY-02-L-3737 another motorcycle TN-04-B-6113 caused the accident but leaving the

prosecution of offending vehicle, he claimed compensation against his own driven motorcycle, ought to have held even U/s. 163A of Motor Vehicle Act.

3.

Before the tribunal, the injured was examined as P.W.1 and Doctor was examined as P.W.2 and Exs.P1 to P10 were marked. On the side of the Insurance Company, RW1 was marked and Ex.R1 investigation report along with policy of insurance was marked. The tribunal has awarded Rs.1,67,425/-. Hence the CMA by the Insurance company.

4.

After hearing the submission of both the counsel, I find that the injured is the son of the owner of the vehicle namely 2nd respondent herein. He has taken the vehicle registered in the name of his father and met with an accident and sustained injuries. As per the pleadings and the evidence, when the claim petitioner/1st respondent was riding the vehicle owned by his father, it collided with another vehicle having registration No.TN-04-B-6133 due to which the claim petitioner was thrown out and sustained multiple grievous injuries, which led to the filing of the above MCOP against the owner of the vehicle and Insurance company.

5.

Admittedly, he has not impleaded the other vehicle. The issue in question is whether a borrower of the vehicle who sustained injury in the accident, can claim compensation against the owner of the vehicle and its insurance company.

6.

The above point is no longer res integra and the recent judgment of Hon'ble Supreme Court in the case of Ramkhiladi and another v. United India Insurance Co. Ltd., and another 2020 (1) TN MAC 1 (SC) : 2020 (1) CTC 443 (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 and the Apex Court considered Sections 147, 166 & 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.

7.

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 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. 8.

In the decision reported in (2020) 1 TN MAC 646, my learned brother Justice S.M.Subramaniam has held as follows:

"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." 9.

In view of the terms of the contract of Insurance, the Supreme Court held that the Insurance Company is not liable to pay since the deceased himself is a wrongdoer and hence he is a tort-feasor by himself. Therefore, in the absence of any additional premium being paid under the Policy by the owner of the vehicle covering an insurance policy coverage extending to the paid driver, the Insurance Company is not liable to pay the compensation. Accordingly, the appellant / Insurance Company was exonerated from any liability.

10.

On the above factual position, as far as the present case is concerned, the first respondent herein is the owner of the vehicle and second respondent is the son of the first respondent and he had driven the vehicle and in a such capacity, he is only a borrower of the vehicle and hence, following the decision, referred above, petition filed under Section 163A of Motor Vehicles Act is not maintainable.

11.

As per Ex.P3 copy of the Insurance Policy, the vehicle being a two wheeler, no additional premium has been paid for pillion rider as could be seen from the payment schedule.

12.

Accordingly, this Court holds that the contention raised by the learned counsel for the claim petitioner that being a pillion rider, he is entitled to fix the amount under the personal coverage since no additional premium has been paid by the owner of the vehicle to cover the pillion rider. As stated supra, in the absence of any payment to cover accidental Insurance Policy, the Insurance Company is not liable to pay the personal cover accident policy and accordingly, the said plea raised by the counsel for the respondent / claim petitioner stands negatived.

13.

Accordingly, the compensation arrived at by the tribunal has to be paid by the owner of vehicle and not by the Insurance Company. Accordingly, this appeal is allowed. Consequently, connected miscellaneous petition is closed. The Insurance Company is not liable to pay any compensation to the claim petitioner.

14.

In the result, [i] The Civil Miscellaneous Appeal is allowed and the award passed by the Tribunal is hereby modified to the effect that the liability of the insurance company stands exonerated and the appellant/insurance company is not liable to pay any compensation to the claimants and if any amount is already deposited by the insurance company, it is permitted to withdraw the said amount.

[ii] The second respondent herein, who is the owner of the vehicle bearing Registration No.PY-02-L-3737, is directed to deposit the entire award amount along with interest at the rate of 7.5% per annum from the date of claim petition and costs, less the amount already deposited, if any, to the credit of M.C.O.P.No.1795 of 2013 on the file of the Motor Accidents Claims Tribunal, (Special Subordinate Judge), Cuddalore, within a period of eight weeks from the date of receipt of a copy of this Judgment.

[iii] On such deposit, the respondent No.1 herein/claimant is permitted to withdraw the award amount along

with interest and costs, less the amount already withdrawn, if any.

[iv] There shall be no order as to costs.

Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar(I) // True Copy // Sub Assistant Registrar AT To The Motor Accident Claims Tribunal, Special Subordinate Judge, Cuddalore District.

Copy to: The Section Officer, V.R.Section, High Court, Madras.

C.M.A.No.2897 of 2015 JPL(CO) CB(06/12/2021) CB(22/12/2021)