The Divisional Manager, v. V. Kavitha,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.12.2024
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI And C.M.P.No.13308 of 2021 The Divisional Manager, United India Insurance Company Limited, 2nd Floor, Third Party Claim Hub Office, Katpadi Road, Vellore.
Now at, Motor Third Party Service Hub, A.R.Plaza, No.35, 36 & 37, 45 Feet Road Extension, Balaji Nagar, Puducherry - 605 011.
... Appellant Vs.
1.V.Kavitha 2.V.Puthiyavan 3.V.Kadhiravan 4.C.Ranjith Kumar ... Respondents Prayer:
Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, to allow the civil miscellaneous appeal by setting aside the order and decree dated 29.06.2020 in M.C.O.P.No.25 of 2018 passed by the Subordinate Judge, Motor Accidents Claims Tribunal, Vaniyambadi.
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For Appellant : Mr.P.Sankaranarayanan For Respondents : Ms.A.Subadra for R1 to R3 R4 - No Appearance
J U D G M E N T
The second respondent before the Motor Accidents Claims Tribunal is the appellant herein. This appeal has been filed against the order and decree dated 29.06.2020 passed by the Subordinate Judge, Motor Accidents Claims Tribunal, Vaniyambadi, in M.C.O.P.No.25 of 2018.
2.The learned counsel appearing for the appellant submitted that the dependants of the deceased filed claim petition before the Motor Accidents Claims Tribunal, claiming compensation of Rs.25 Lakhs alleging that on 29.10.2016 at about 2.20 p.m., when the deceased Viji was riding the motorcycle bearing Registration No.TN 83 Y 5442 along with his friend as pillion rider, from Ambur to Vaniyambadi direction at Valayampattu fly over, suddenly a dog crossed the road and the deceased applied break, however, the two wheeler did not stop and hit on the left side of wall and the deceased fell from the bridge, due to which, he lost his life. After adjudication, the Tribunal fixed 40% contributory negligence on the deceased and arrived a total 2/12
compensation of Rs.19,77,280/- and after deducting a sum of Rs.7,90,912/- awarded a sum of Rs.11,86,368/- as compensation to the claimants along with interest at 6% p.a. from the date of filing of the petition till the date of deposit and directed the appellant to deposit the amount. The Tribunal further directed that the second respondent shall recover the amount paid for the first respondent without resorting to separate proceedings.
3.The learned counsel appearing for the appellant further submitted that in the present case, the deceased himself is a tort feasor, he borrowed the vehicle from the fourth respondent and he drove the vehicle in a rash and negligent manner and fell down and sustained fatal injuries and further submitted that the deceased is not the owner of the vehicle. Hence, the claimants are not entitled to file claim petition under Section 163 A of the Motor Vehicles Act. In support of his contentions, the learned counsel relied upon the decision of this Court reported in 2020 (1) TN MAC 593 [National Insurance Company Limited Vs. Rani and others]. 4.The learned counsel appearing for the respondents 1 to 3/ claimants submitted that the deceased and his friend Sankar were 3/12
going to Yelagiri for owner's carpentry work in the motorcycle owned by his owner/ fourth respondent. The learned counsel further submitted that this Court may permit the respondents 1 to 3 to approach the Labour Commissioner under the Employees Compensation Act.
5.Heard the learned counsel appearing for the appellant as well as the learned counsel appearing for the respondents 1 to 3 and perused the materials available on record.
6.The issued involved in the present case is covered by the decision of this Court reported in 2020 (1) TN MAC 593 [National Insurance Company Limited Vs. Rani and others], the relevant portion of the same reads as follows:
"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 4/12
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 (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;
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(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 the benefit of Special Provision enacted under Section 163-A of the Act, for payment of compensation on structured formula basis. When the Special 6/12
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 therefore, in respect of the contract, 7/12
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 8/12
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.
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 9/12
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."
7.Perusal of the decision cited supra makes it 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 present case, the deceased is the borrower of the vehicle and he is not the owner of the vehicle and the insurance policy does not stand in the name of the deceased.
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8.However, considering the request made by the learned counsel appearing for the respondents 1 to 3/ claimants, this Court without rendering any opinion on the merits of the case, set aside the impugned award on the simple ground that the claim petition is not maintainable under Section 166 of the Motor Vehicles Act. 9.In view of the above, the civil miscellaneous appeal is allowed. The judgment and decree dated 29.06.2020 passed by the learned Subordinate Judge, Motor Accidents Claims Tribunal, Vaniyambadi, in M.C.O.P.No.25 of 2018, is set aside. The appellant Insurance Company is permitted to withdraw the entire amount already deposited by them, if any. Liberty is granted to the claimants/ respondents 1 to 3 to work out the remedy in the manner known to law. No costs. Consequently, the connected miscellaneous petition is closed.
06.12.2024 pri Index: Yes/ No Speaking Order: Yes/ No NCC: Yes/ No To 1.The Subordinate Judge, Motor Accidents Claims Tribunal, Vaniyambadi. 11/12
M.DHANDAPANI,J.
pri And C.M.P.No.13308 of 2021 06.12.2024 12/12