Compensation for a motorcycle borrower's death in a self-caused accident was denied. The Court dismissed the heirs' appeal, holding that statutory compensation was unavailable and that borrowing the vehicle did not make the deceased an owner-driver entitled to personal accident cover.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
TUESDAY, THE 7TH DAY OF JUNE 2016/17TH JYAISHTA, 1938
MACA.No. 510 of 2016 ()
AGAINST THE AWARD IN OPMV 1599/2013 of M.A.C.T.,KOZHIKODE DATED 23-11-2015
APPELLANTS/PETITIONERS:
W/O.ABDUL GAFOOR.
DOB:25/02/08.
(MINORS ARE REPRESENTED BY THEIR MOTHER KHADEEJA)
BY ADV. SRI.AVM.SALAHUDIN
RESPONDENTS/RESPONDENTS:
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 8.3.2016, THE COURT ON 07.06.2016 DELIVERED THE FOLLOWING:
“CR”
P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.
--------------------------------------------------
M.A.C.A. No.510 of 2016
-------------------------------------------------DATED THIS THE 7th DAY OF JUNE, 2016
JUDGMENT
ANIL K.NARENDRAN, J .
The appellants are the claimants in O.P.(MV)No.1599 of 2013 on the file of the Principal Motor Accident Claims Tribunal, Kozhikode, an application filed under Sections 140 and 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') claiming compensation on account of the death of one Abdul Gafoor (husband of the 1st appellant, father of 2nd and 3rd appellants and son of the 4th appellant) in a motor accident which occurred on 18.4.2013, while he was riding a motor cycle bearing No.KL-57/A3161 along Thamarassery-Kozhikode Road. The motor cycle was owned by the 1st respondent and insured by the 2nd respondent. When the motor cycle reached the place of accident, a dog jumped in front of it. The deceased lost control of the motor cycle and it capsized, resulting serious injuries to him, who succumbed to injuries at Medical College Hospital, Kozhikode. Claiming a total compensation of 2,94,000/- from the owner and insurer of the₹ motor cycle, claim petition was filed before the Tribunal.
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the policy covered only the owner-cum-rider and not the rider who is not the owner of the motor cycle. The Tribunal has also noticed that, the claimants have not produced the registration certificate of the motor cycle to prove its ownership at the time of accident. The Tribunal held that, the insurer is not liable to compensate the claimants under Section 140 of the Act because the liability is on the owner at the time of accident. Accordingly,
the Tribunal dismissed the claim petition. Aggrieved by the award passed by the Tribunal, the appellants/claimants are before this Court in this appeal.
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driver and insurer of the offending vehicle, it is imperative for the claimants to prove that the accident was caused by the negligence of the driver or the owner of that vehicle. Thus, negligence on the part of the driver or owner of the offending vehicle is a prime consideration in a claim under Section 166 of the Act. Therefore, where the pleadings and the evidence on record on the side of the claimant are absolutely silent on this crucial aspect of the matter, a claim under Section 166 of the Act cannot be sustained.
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the negligence of the respondents that a reasonable jury could find without further evidence that it was so caused.
Variyal (2007 (5) SCC 428) , the Apex Court held that, the victim of a motor accident or his dependents have an option either to proceed under Section 166 of the Act or under Section 163A of the Act. Once they approach the Tribunal under Section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. But if they proceed under Section 163A of the Act, the compensation will be awarded in terms of the Schedule without calling upon the victim or his dependents to establish any negligence or default on the part of the owner or driver of that vehicle.
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cycle. They contended that the accident occurred due to the negligence of the 1st respondent owner and as such, the 1st respondent owner and the 2nd respondent insurer are jointly and severally liable to compensate them. As held by the Apex Court in Oriental Insurance Company Ltd. v. Rajni Devi (2008 (5) SCC 736) , a person who borrowed motor vehicle from its real owner, who was authorised to drive the said vehicle by its owner, would step into the shoes of the owner of that vehicle. When the fact that the accident occurred as the deceased lost control of the motor cycle when a dog jumped in front of it is not in dispute, the conclusion is irresistible that, the accident is a self made one, occurred solely due to the rash and negligent riding of the motor cycle by the deceased himself, who stepped into the shoes of the owner of that vehicle.
(2007 (9) SCC 263) the Apex Court was dealing with a case in which the deceased was the owner of the insured Maruti van. While he was driving the said vehicle it dashed against a tree on the road side, when he attempted to save a goat which ran across the road. The deceased suffered injuries, who later on
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succumbed to injuries. The Apex Court noticed that, for the reasons stated in the claim petition or otherwise, the deceased himself was to be blamed for the accident. The accident did not involve motor vehicle other than the one which the deceased was driving. Therefore, the question before the Apex Court was as to the maintainability of the claim made under Section 166 of the Act. In that context, the Apex Court held that, the liability of the insurer is to the extent of indemnification of the insured against the injured person, a third person, or in respect of damages to property. Thus, if the insured cannot be fastened with any liability under the provisions of the Act, the question of the insurer being liable to indemnify the insured, does not arise.
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does not require an Insurance Company to assume risk for death or bodily injury to the owner of the vehicle.
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vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of that Section. Sub-section (4) of Section 140 of the Act provides that, a claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement. Sub-section (5) of Section 140 provides further that, notwithstanding anything contained in sub-section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force. Therefore, the liability to pay compensation under Section 140 of the Act, on the principle of no fault liability, is on the owner of the offending vehicle, i.e., the insured, which liability has to be indemnified by the insurer under a contract of insurance. However, the liability of the insurer arises only when
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the liability of the insured has been upheld for the purpose of indemnifying the insured under the contract of insurance.
(3) KLT 519) a Division Bench of this Court, after referring to the judgment of the Apex Court in Oriental Insurance Co. Ltd. v. Sunitha Rathi (1998 (1) SCC 365) , held that the liability of the insurer arises only when the liability of the insured has been upheld for the purpose of indemnifying the insured under the contract of insurance. It is therefore clear that if the insured is not held liable, insurer cannot be directed to indemnify the insured. The only liability for the insurer is to indemnify the insured and not to pay any compensation for the alleged bodily injuries sustained by her. A reading of Section 140 would make it clear that no fault liability is cast on the owner of the vehicle and not directly on the insurer. If the owner of the vehicle is found liable under Section 140, naturally, the liability of the insured also would arise.
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140 of the Act against the insurer of her own vehicle which was held to be the offending vehicle. On the basis of evidence, the Tribunal came to the conclusion that there was no negligence on the part of the Driver of the KSRTC bus, but, on the other hand the accident happened only due to the negligence on the part of the driver of the Jeep. The Division Bench, after referring to the judgment of the Apex Court in Sunitha Rathi's case (supra), in which it was held that the liability of the insurer arises only when the liability of the insured has been upheld for the purpose of indemnifying the insured under the contract of insurance, held that such a claim made by the owner of the vehicle cannot be maintained under Section 140 of the Act.
(6) SCC 657) the question that came up for consideration before the Apex Court was as to whether an order passed by the Tribunal under Section 140 of the Act is an appealable one. In that context, the Apex Court held that Section 140 of the Act, which provides for no fault liability, uses the words 'accident arising out of the use of a motor vehicle', 'the owner of the vehicle' and when more than one vehicles are involved, 'the
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owners of the vehicles' shall jointly and severally be liable to pay compensation. The said provision, therefore makes the owners of the vehicle liable, but not the insurer per se.
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borrowed the motor vehicle from its real owner, who was authorised to drive the said vehicle by its owner, who steps into the shoes of the owner of that vehicle (as held by the Apex Court in Rajni Devi's case (supra)) cannot be entertained under Section 140 of the Act, so also a claim made by his legal heirs. In that view of the matter, we hold that the Tribunal committed no error in not entertaining the claim under Section 140 of the Act as well.
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registration certificate of the motor cycle in order to prove its ownership at the time of accident.
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contract of insurance in which event the insurer would be bound to reimburse the owner of the vehicle strictly in terms that contract. The liability of the insurer to reimburse the owner in respect of a claim made by the third party, thus, is statutory whereas other claims are not.
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147 of the Act, the Apex Court held that, the said provision provides for two types of insurance; one statutory in nature and the other contractual in nature. Whereas the Insurance Company is bound to compensate the owner or the driver of the motor vehicle in case any person dies or suffers injury as a result of an accident; in case the owner of the vehicle or others are proposed to be covered, additional premium is required to be paid for covering their life and property. Therefore, by taking an 'act policy', the owner of a vehicle fulfils his statutory obligation as contained in Section 147 of the Act. If the liability of the insurer is contractual, its liability extends to the risk covered by the policy of insurance. If additional risks are sought to be covered, additional premium has to be paid.
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Vehicles). A 'Package Policy', in addition to the liability as above, covers loss or damage to the vehicle insured. The owner of insured vehicle holding an 'effective' driving license is termed as owner-driver for this purpose and the Personal Accident Cover is provided to the owner-driver whilst driving the vehicle including mounting into/dismounting from or traveling in the insured vehicle as a co–driver. Only the registered owner in person is entitled to the compulsory cover where he/she holds an effective driving license. Hence compulsory Personal Accident Cover cannot be granted where a vehicle is owned by a company, a partnership firm or a similar body corporate or where the ownerdriver does not hold an effective driving license. The annual premium payable in this regard, in respect of motorised two wheelers is 50/- to cover a Capital Sum Insured (CSI) to the₹ tune of 1,00,000/-. ₹
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claim petition as the owner of that vehicle. Therefore, merely by stepping into the shoes of the registered owner of the motor cycle, while using the said vehicle with his consent, the deceased cannot be termed as 'owner-driver' for the purpose of Personal Accident Cover. In that view of the matter, we find no grounds to interfere with the finding of the Tribunal that the appellants are not entitled for compensation under the Personal Accident Cover provided in Ext.B1 insurance policy.
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163A of the Act, vide the Motor Vehicles (Amendment) Act, 1994, was only to ensure that a claimant who opts for the special provisions as to payment of compensation on structured formula basis need not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or any other person. Section 163A of the Act was never intended to provide relief to those who suffered in a road accident only on account of their own rash and negligent act, not because of any rash and negligent act of another person in using a motor vehicle.
(2009 (13) SCC 710) the Apex Court, after referring to Para.42 of the Three-Judge Bench decision in Deepal Girishbhai Soni v.
United India Insurance Company Ltd. (2004 (5) SCC 385)
held that, the Parliament by introducing Section 163A in the Act provided for payment of compensation on structured formula basis by mandating that the owner of a motor vehicle or the authorised insurer would be liable to pay compensation, as indicated in the Second Schedule in the case of death or
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permanent disablement due to accident arising out of the use of the motor vehicle, to the legal heirs or the victim, as the case may be, in a claim made under sub-section (1) of Section 163A of the Act. After referring to the judgment of a Two-Judge Bench in Oriental Insurance Company Ltd. v. Rajni Devi (2008 (5) SCC 736) the Apex Court held further that, Section 163A of the 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 163A of the Act is on the owner of the vehicle. So a person cannot be both, a claimant as also a recipient, with respect to the claim. A person who borrowed motor vehicle from its real owner, who was authorised to drive the said vehicle by its owner, would step into the shoes of the owner of that vehicle. 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 Act.
(2012 (2) SCC 356) the main question that came up for consideration before the Apex Court was whether a claim for
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compensation made under Section 163A of the Act, can be defeated either by the owner or by the Insurance Company, by pleading and establishing, that the accident in question was based on the 'negligence' of the offending vehicle. After analysing the provisions under Sections 140 and 163A of the Act, the Apex Court held that, sub-section (2) of Section 163A is in pari materia with sub-section (3) of Section 140 and it is not essential for a claimant seeking compensation, to 'plead or establish' that the accident out of which the claim arises suffers from 'wrongful act' or 'neglect' or 'default' of the offending vehicle. Under sub-section (4) of Section 140, there is a specific bar, whereby the concerned party (owner or Insurance Company) is precluded from defeating a claim raised under Section 140 of the Act, by 'pleading and establishing' 'wrongful act', 'neglect' or 'default', there is no such or similar prohibiting clause in Section 163A of the Act. The additional negative bar, precluding the defence from defeating a claim for reasons of a 'fault' ('wrongful act', 'neglect' or 'default'), as has been expressly incorporated in Section 140 of the Act (through sub-section (4) thereof), having not been embodied in Section 163A of the Act, has to have a bearing on the
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interpretation of Section 163A of the Act. The legislature designedly included the negative clause through sub-section (4) in Section 140 of the Act, yet consciously did not include the same in the scheme of Section 163A of the Act. The presence of sub-section (4) in Section 140 of the Act and the absence of a similar provision in Section 163A, leaves no room for any doubt that the only object of the Legislature in doing so was that the legislature desired to afford liberty to the defence to defeat a claim for compensation raised under Section 163A of the Act, by pleading and establishing 'wrongful act', 'neglect' or 'default'. A claim which can be defeated on the basis of any of the aforesaid considerations is regulated under the 'fault' liability principle. Therefore, the Apex Court concluded, that Section 163A of the Act is founded on the 'fault' liability principle.
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that motorcycle which was covered by an 'Act only' policy, and the Tribunal found the cause for the accident as the negligence of the rider himself. After referring to various judgments of the Apex Court and also the judgment of another Full Bench of this Court in National Insurance Company Ltd. v. V. Malathi C. Salian (2003 (3) KLT 460) the Full Bench held that in a case where, though a claim is raised under Section 163A of the Act, once the insurer or the insured comes up with the defence of absolving the liability to pay compensation on the ground that the deceased was responsible for the death or injury on account of either wrongful act, negligent act or default, then, the liability of the insurer can be absolved, if such plea or defence is established. After referring to the judgment of the Apex Court in Rajni Devi's case (supra) the Full Bench observed that, if the owner of the vehicle insures the vehicle by paying additional premium, as personal accident coverage, then by virtue of the terms of contract of insurance, the insurer would be liable to pay compensation depending upon the limits of liability.
(1) KHC 327) , following the judgment of the Apex Court in
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Sinitha's case (supra) and that of the Full Bench of this Court in Joseph’s case (supra) we have held that, in view of conspicuous absence of the provisions like sub-section (4) of Section 140 in Section 163A of the Act, it is possible for the Insurance Company to plead or establish that negligence was on the part of the victim. That was a case in which the deceased was driving a car owned by her wife. When the car reached the place of occurrence, the deceased lost control over the vehicle and it dashed against a culvert on the side of the road, resulting in serious injuries leading to his death. The police has also registered a case against the deceased attributing negligence. The grown-up children of the deceased filed a claim petition under Section 163A of the Act claiming compensation, arraying their mother/the owner of the car as one of the respondents. Since the factual sequence itself is enough to hold that, no other party/circumstance is involved with regard to the cause of accident, this Court held that the award passed by the Tribunal fixing liability upon the appellant insurer is not correct or sustainable.
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of the Act and the object behind the said provision introduced by Act 54 of 1994 came up for consideration before a Division Bench of the Karnataka High Court in Appaji v. M. Krishna (2004 ACJ 1289) . His Lordship Justice T.S. Thakur (as he then was) rendered the said judgment on 17.12.2003 (prior to the ThreeJudge Bench decision in Deepal Girishbhai Soni's case (supra) dated 18.3.2004) after examining in detail the provisions of Section 163A of the Act as well as the objects and reasons which led to the introduction of such a provision in the Act, by Act 54 of 1994. In the said case, the Division Bench was dealing with a case were the deceased Arun Kumar was riding a motorcycle and the accident occurred while the deceased was trying to avoid a cyclist who suddenly emerged on the road. The Division Bench held that, Section 163A of the Act 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. The objects and reasons underlying the introduction of the provision also envisaged adequate compensation to victims of road accidents
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without going into what was described as long drawn procedure. There is nothing to suggest that Section 163A was intended to be available 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 held further that, the right to receive compensation under Section 163A of the Act presupposes that the person who makes
a claim is a victim or the legal heirs of a victim. One who is the victim of his own actions of rash or negligent driving cannot invoke Section 163A for making a claim. The concern of the Legislature and the jurists is understandably for the victim in contradistinction to the victimiser or one who falls a victim to his own action. The Parliament did not intend to provide for compensation to the person responsible for the accident on structured formula basis in such cases. The Division Bench held in categorical terms that, the ‘non obstante’ clause in Section 163A simply dispenses with proof of fault by the claimants against the driver or the owner of the vehicle involved in the accident. The claimant under Section 163A, therefore, need not prove that the driver or the owner of the vehicle was at fault in the sense that
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the accident had occurred on account of any negligence or rashness on their part. That does not, however, mean that 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 made the insurance company pay for the same. Inasmuch as Section 163A of the Act dispenses with proof of fault, it does so only where the claimant is not solely responsible for the accident. The above view expressed by the Division Bench of the Karnataka High Court is also in consonance with the view expressed by the Apex Court in Ningamma's case (supra).
(2014 (1) SCC 680) a Two-Judge Bench of the Apex Court expressed its difficulty to accept the reasoning by the Two-Judge Bench in Sinitha's case (supra), stating that the principle laid down in Hansrajbhai Kodala's case (supra), which was accepted by the Three-Judge Bench in Deepal Girishbhai Soni's case (supra) has not been properly appreciated or applied in Sinitha's case (supra). Consequently, the matter was ordered to be placed
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before the learned Chief Justice of India for referring the matter to a larger Bench for a correct interpretation of the scope of Section 163A of the Act.
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Sinitha's case, Ningamma's case and Rajni Devi's case referred to supra.
In the result, the appeal fails and the same is dismissed. No order as to costs.
Sd/-
P.R.RAMACHANDRA MENON , JUDGE
Sd/- ANIL K.NARENDRAN, JUDGE
dsn
True copy
P.S.to Judge
3 issues framed by the court
Could the heirs of a motorcycle borrower whose own negligence caused his death recover compensation under Sections 166, 140 or 163A of the Motor Vehicles Act?
Did a borrower stepping into the owner's shoes qualify as an owner-driver under the policy's personal accident cover?
Did a reference to a larger Bench render the earlier Supreme Court decision on Section 163A inoperative?
Colour shows how this judgement treated each authority
Oriental Insurance Company Ltd. v. Meena VariyalRelied on¶47
(2007 (5) SCC 428) · Who else cites this
Oriental Insurance Company Ltd. v. Rajni DeviApplied¶50
(2008 (5) SCC 736) · Who else cites this
Oriental Insurance Co. Ltd. v. Jhuma SahaRelied on¶83
(2007 (9) SCC 263) · Who else cites this
Dhanraj v. New India Assurance Co. Ltd.Relied on¶55
(2004 (8) SCC 553) · Who else cites this
National Insurance Co. Ltd. v. SasilathaRelied on¶65
(1999 (3) KLT 519)
Oriental Insurance Co. Ltd. v. Sunitha RathiRelied on¶65
(1998 (1) SCC 365) · Who else cites this
Yallwwa v. National Insurance Co. Ltd.Relied on¶71
(2007 (6) SCC 657) · Who else cites this
New India Assurance Company Ltd. v. Sadanand MukhiRelied on¶74
(2009 (2) SCC 417) · Who else cites this
Oriental Insurance Co. Ltd. v. Sudhakaran K.V.Relied on¶84
(2008 (7) SCC 428) · Who else cites this
Ningamma v. United India Insurance Co. Ltd.Applied¶104
(2009 (13) SCC 710) · Who else cites this
Deepal Girishbhai Soni v. United India Insurance Company Ltd.Referred¶105
(2004 (5) SCC 385) · Who else cites this
National Insurance Company Ltd. v. SinithaFollowed¶110
(2012 (2) SCC 356) · Who else cites this
Oriental Insurance Co. Ltd. v. Joseph V.V. @ JohnyFollowed¶115
(2012 (2) KLT 132)
National Insurance Company Ltd. v. V. Malathi C. SalianReferred¶117
(2003 (3) KLT 460)
New India Assurance Co. Ltd. v. RajivFollowed¶119
(2016 (1) KHC 327)
Appaji v. M. KrishnaRelied on¶124
(2004 ACJ 1289)
United India Insurance Co. v. Sunil KumarExplained¶131
(2014 (1) SCC 680) · Who else cites this
Hansrajbhai KodalaReferred¶131
Hansrajbhai Kodala's case (supra)
7 provisions across 3 enactments
KHADEEJA
MUHAMMED SINAN
MUHAMMED NIJLAN
KHADEEJA
RUSHDI
UNITED INDIA INSURANCE CO.LTD
P.R.RAMACHANDRA MENON
ANIL K.NARENDRAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
P.R.RAMACHANDRA MENON and ANIL K.NARENDRAN
Parties & counsel
