Motor Accidents Claims; L. Mini Vs. Gireeshkumar [Kerala High Court, 02-09-2016]

Motor Vehicles Act, 1988Section 147 –Third Party Claim – the claim of the owner against the insurance company or any other person in respect of death or bodily injury will not lie, though the cause of action arose out of a motor vehicle accident.

Motor Vehicles Act, 1988 – Owner of the vehicle cannot fasten any liability on the rider on the basis of fault liability principle as the vehicle itself is a dangerous one, and its riding is also attached with high risk.

Motor Vehicles Act, 1988 – the Government cannot elude from its limited liability in a case of accident occurring in a public road, where road tax is levied by the Government.

# Vehicle

IN THE HIGH COURT OF KERALA AT ERNAKULAM

C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.

M.A.C.A.No.2102 OF 2013

Dated this 2nd day of September, 2016

AGAINST THE AWARD IN OPMV 37/2011 of M.A.C.T.,KOLLAM DATED 16-07-2013

APPELLANT/APPLICANT

L. MINI AND 3 OTHERS

BY ADVS.SRI.R.NIKHIL SMT.R.AMLA SRI.P.ABDUL RAZAK

RESPONDENTS/RESPONDENTS

1. GIREESHKUMAR, AGED ABOUT 40 YEARS S/O SIVARAMAN NAIR KULANGARA VEEDU POONTHALLIL CUTCHERRY WARD KOLLAM WEST VILLAGE, KOLLAM 691 013

2. THE BRANCH MANAGER, NATIONAL INSURANCE CO.LTD II FLOOR, K.K.BUILDING, ARISTO JUNCTION, THAMPANOOR POST BOX NO.407, THIRUVANANTHAPURAM 695 014

R2 BY ADV. SRI.P.JACOB MATHEW

JUDGMENT

Jyothindranath, J.

This appeal is filed by the claimants in O.P.(MV)No.37/2011 on the file of the Motor Accidents Claims Tribunal, Kollam against its dismissal. They are the wife, children and mother of one Biju who died in a motor vehicle accident occurred on 21.03.2010 at about 5.30 p.m. It is the case of the appellants that deceased Biju was the owner of the motor bike involved in the accident and he was travelling as its pillion rider. At the time of accident, the bike was driven by one Gireesh Kumar. The vehicle involved in the accident was insured with the second respondent in the claim petition. The claim petition was moved against the rider of the motor bike as well as the insurance company. The claim petition was dismissed on the ground that the deceased is not a third party and he is the insured himself.

2. When the appeal came up for hearing, the learned counsel for the appellants raised the following points for the consideration of this court:

1) The rider being the primary tort feasor, what will be his liability to the legal heirs of the deceased owner of the vehicle involved in the accident?

2) An additional premium of Rs.50/- was collected by the Insurance company and there is a personal coverage upto Rs.1,00,000/- which was not considered by the Tribunal and whether such a claim can be agitated before the Tribunal?

3. Though the specific allegation of the claimants in the claim petition was that the accident in question had occurred due to the negligence of the first respondent he remained exparte before the Tribunal. Inspite of receipt of notice he has not chosen to enter appearance and resit this appeal. It assumes relevance, in view of the fact that even while dismissing the claim petition as per the impugned judgment the Tribunal returned a definite finding as against the first issue formulated for consideration viz., ‘at whose fault the accident and death of Shri. Biju took place’ that it was at the fault of the first respondent that the accident and death of Shri. Biju took place. Evidently, the 2 nd respondent alone contested the matter before the Tribunal. In the written statement filed before the Tribunal the fact that the motorcycle involved in the accident was insured with the National Insurance Company was admitted. However, the liability was disowned citing the ground that the deceased was not a third party but he was its insured owner. The fact that a personal accident coverage for an amount of Rs.1,00,000/- was given to the insured/owner-cumdriver was also admitted thereunder. But, it was further stated that as the deceased was not the rider of the vehicle at the time of the accident and also that no additional premium was collected to cover any other task. Incidentally, the allegation that the accident was caused due to the rash and negligent riding of the motorcycle was also denied. Evidently, relying on Exts.A1 to A6 particularly Ext.A2 final report laid against the first respondent under Sections 279 and 304A of the Indian Penal Code and based on the failure of the respondents to adduce any rebuttal evidence the Tribunal held that the accident took place due to the negligence on the part of the first respondent. Despite such adverse finding the second respondent also did not file any cross objection in this appeal against the said finding. In the decision in

# New India Assurance Co. Ltd v. Pazhaniammal, 2011 (3) KLT 648

a Division Bench of this Court held that production of the final report would prima facie sufficient evidence to prove negligence as regards a claimant, in a claim petition filed under Section 166 of the Motor Vehicles Act. In the said circumstances there is absolutely no reason to interfere with the finding of the Tribunal that the accident in which Shri. Biju died occurred due to the negligence of the first respondent.

4. Ext.B1 and Exts.B1(a) are policy and policy details. The above said documents reveal that an additional premium of Rs.50/- was accepted by the insurance company and there is a liability to the extent of Rs.1,00,000/- towards personal injury/death of the insured.

5. The case in hand is an application filed under

# Section 166 of the Motor Vehicles Act

The case of the appellants’ counsel is that as the accident occurred due to the negligence of the rider of the vehicle, the rider who is arrayed as the first respondent in the claim petition is liable to pay compensation to the pillion rider who lost his life in the accident.

6. It is the law of tort to determine when the law will and will not grant redress for damage suffered. It is a fact that the pillion rider died in the motor vehicle accident. It is also a fact that while first respondent was riding the vehicle, vehicle capsized and thereby the rider of the bike caused the accident and in that accident the deceased sustained fatal injuries and succumbed to the injuries.

7. It is now an admitted fact that motor vehicles are basically dangerous in nature. That is the reason why restrictions and conditions to use the same are introduced by an enactment. Obsolete old Act concerning use of motor vehicles was changed by the introduction of Motor Vehicles Act, 1988. The decisions like

# Manjusri Raha and Ors. v. B.L. Gupta, (1977) 2 SCR 944

and

# Motor Owners’ Insurance Company Limited v. Jadavji Keshavji Modi and Ors., AIR 1981 SC 2059

paved way for bringing the new Act in 1988 and amendment brought in 1994. When such an article is brought by the deceased, naturally a strict liability is also attached to it. Whenever an accident occurs by such a vehicle, by strict liability principle, the owner will be liable, over and above the vicarious liability, if any. Surely, the case in hand is a peculiar case where the legal heirs of the deceased owner is turning towards the rider. In this case, there is nothing on record to show as to what was the nature of the relationship between the deceased and the rider of the two wheeler to determine the tortious liability of the latter in the matter of death of the former due to his negligent riding of the two wheeler belonging to the former. There is nothing before this court to arrive at a conclusion regarding the nature of the entrustment of the vehicle to the first respondent. The only data available is that he was riding the vehicle at the time of the accident. Whatever may the nature of the entrustment, it can be said that there is an implied agreement to the effect that rider agreed to ride the vehicle and took the risk naturally attached to the motor vehicle while riding the same. When the accident occurred while riding such a vehicle, the primary tort feasor will be the rider of the vehicle, whereas the owner also will be burdened with the tortious liability due to the vicarious liability as well as strict liability principle. Here the victim is none other than the insured owner of the offending vehicle. Since, owner is the person who brought the vehicle, he will not have any cause of action.

8. In the light of the above discussion, it can be seen that the owner of the vehicle cannot fasten any liability on the rider on the basis of fault liability principle as the vehicle itself is a dangerous one, and its riding is also attached with high risk for the reasons stated hereinafter as well.

9. Ordinarily, when the driver of a vehicle is an employee of its owner, then there will be vicarious liability on the owner of the vehicle for the negligence of the employee. But in this case, it can be seen that there is nothing to show that the driver Gireesh Kumar was an employee of the deceased. It is also to be remembered that the vehicle involved is only a two wheeler. Ordinarily, there will be an employer-employee relationship in between the owner and the rider and it will be imprudent to presume any such relationship as relates a two wheeler. From the available facts, it can be only held that there was entrustment as stated above to drive the two wheeler. While driving so, the accident occurred. It is a case where the vehicle capsized. While considering the motor vehicle accident pertaining to a two wheeler, wherein the vehicle capsized, it cannot be positively said that a reasonable caution was not taken by the rider because it can be seen that it is a single track vehicle and keeping it upright itself need balancing. The dynamics of its motion is highly complicated and therefore such a vehicle may capsize due to various reasons. As long as positive evidence in this regard is lacking, it cannot be positively said that there was lack of the required care and caution on the side of the rider of the vehicle rather such a high degree of negligence on his part so as to make him liable to the owner. The case law in this aspect is

# Lister v. Romford Ice and Cold Storage Co.Ltd; 1957 (AC) 555

Even that case law has now become obsolete in England where it was developed. But there are instances in India while considering tortious liability, the Courts directing the Government to recover the amount from the concerned officer, when the Government is made liable to pay compensation. But in such cases also there must be flagrant violation of law or duty cast upon the officer. Such an aspect cannot be attributed in this case. If that is so, it cannot be said that the rider of the vehicle is primarily liable in a case like this. Thus, a fault liability cannot be fastened on the rider.

10. Tortious liability based upon fault liability thereon will not be applicable in a case like this for the reasons stated above. When the deceased was the owner of the vehicle involved which was brought by him knowingly that it may cause accident if not dealt cautiously and when he is voluntarily riding upon the same and when the respondent rider was riding the same as authorised by him, it can be seen that the rider cannot be made liable for any compensation or fastened with liability as long as the accident was caused by any unintentional act of the rider of the bike. Thus, the rider will not be liable to pay compensation to the deceased. The legal heirs are entitled to claim compensation in a legal fiction as if stepping into the shoes of the deceased at the moment of death along with their own rights. If that is so, when the deceased got no right to claim compensation from the rider, the claimants will also automatically get no right to claim so. Thus, the claim against the rider of the vehicle will fail.

11. The Motor Vehicles Act now in force projects two other provisions under which a claim for compensation can be made. That are Section 140, 163 A of the Motor Vehicles Act. Section 140 of the Motor Vehicles Act is the only section founded on no fault theory i.e. there the claimant will be entitled for compensation irrespective of the fact that his fault or not, caused the accident. The proviso to Section 168 of the Motor Vehicles Act enables claimant to file a composite application under section 166 of the Motor Vehicles Act and under Section 140 of the Motor Vehicles Act.

12. But there the liability is cast upon the owner of the vehicle involved in the accident. Here none other than the legal heirs of the deceased owner are the claimants.

13. In a death claim, an affiction is therein that the person who sustained injury and death who can put forward the claim if alive is fusing with the claim of the other legal heirs of the deceased after death i.e. the claim for special damages that can be only put forward by the deceased is also passing over to the legal heirs as if the claim is made by the deceased himself.

14. Section 140 is categoric that the person who is liable to pay the compensation is the owner of the vehicle. Thus, it can be seen that the claimants who are the legal heirs of the deceased owner are not entitled for compensation under Section 140 of the Motor Vehicles Act, which is the only provision under which a claim can be made for no fault liability.

15. Sections 163 A of the Motor Vehicles Act is akin to Section 166 of the Motor Vehicles At, which is also based upon fault liability. By analysing Section 163 A of the Motor Vehicles Act, the Apex Court held in

# National Insurance Company Ltd. v. Sinitha, 2011 (4) KLT 821 (SC)

that “ when compensation is high, it is legitimate that the insurance company is not fastened with liability when the offending vehicle suffered a “fault” ( “wrongful act”, “neglect”, or “defect”) under a valid Act only policy. Even the instant process of reasoning, leads to the inference, that Section 163A of the Act is founded under the “fault liability principle”. There also the statutory liability is on the owner of the motor vehicle insured with the authorized insurance company. That section also will not be applicable in a case like this.

16. The next point to be considered is regarding the liability of the insurance company. It is a contractual liability. Their liability will be only that of the insured. Virtually, the insurer is only indemnifying the insured-owner. The deceased is the insured herein. Thus, there will be no statutory liability upon them pertaining to Section 147 of the Motor Vehicles Act, where third party claim against the insured/owner need be indemnified. Being one of the two parties to the contract of insurance the insured-owner cannot be regarded as a third party.

17. The appellants got a case that additional premium of Rs.50/- was levied and there is a coverage of personal injury/death. We have verified the insurance policy and found that there is a personal coverage to the extent of Rs.1,00,000/-. Then the question will be that whether the said claim can be agitated before a Tribunal. Section 165 of the Motor Vehicles Act states as follows :

# 165. Claims Tribunals

(1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles or damages to any property of a third party so arising, or both.”

18. A careful reading of the above section will reveal that a claim for personal injury is not barred by the above said section even by the owner of the vehicle. It is true that by virtue of Section 147 of the Motor Vehicles Act, the statutory liability of the insurance company pertains only to third party claim. But it cannot be said in the light of the said section, the claim of the owner against the insurance company or any other person in respect of death or bodily injury will not lie, though the cause of action arose out of a motor vehicle accident. This aspect was considered by the Madhya Pradesh High Court in

# Smt.Kunti Ahirwar and Ors. v. State, AIR 2007 MP 82

and concluded in the last portion of paragraph 12 as follows :

“In the case at hand, it is patent, personal insurance policy was taken by the owner to cover his own risk. The liability is limited to Rs.1,00,000/-. We fail to fathom why the Accident Claims Tribunal cannot entertain the same and the legal representatives should be asked to approach any other legal forum. Thus, the issue of maintainability raised by Mr.Nair is not acceptable and we have no hesitation in repelling the same.”

19. In

# Dhanraj v. New India Assurance Co. Ltd; (2004) 8 SCC 553

in paragraphs 8 and 10, it is held as follows :

“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.

*******

10. In this case, it has not been shown that the policy covered any risk for injury to the owner himself. We are unable to accept the contention that the premium of Rs. 4,989/- paid under the heading “Own damage” is for covering liability towards personal injury. Under the heading “Own damage”, the words “premium on vehicle and non-electrical accessories” appear. It is thus clear that this premium is towards damage to the vehicle and not for injury to the person of the owner. An owner of a vehicle can only claim provided a personal accident insurance has been taken out. In this case, there is no such insurance.”

20. The above said decision is followed in

# Oriental Insurance Co.Ltd. v. Jhuma Saha, (2007) 9 SCC 263

From the above decisions, it can be seen that in a case of payment of additional premium it will entitle the owner of the vehicle to make a claim before the Tribunal when he sustained personal injury and covered by the above said payment of premium. In this case, it can be seen that an additional premium of Rs.50/- is seen paid. If the injured can make the claim, much less to say, the legal heirs can put forward the claim before the Tribunal. Death is not disputed. Thus, the Insurance Company will be liable to that much amount covered by the policy. The quantification of the compensation is not warranted as this is a case of death. The limit of compensation is as Rs.1,00,000/- (Rupees one lakh only). We hereby direct the insurance company to pay Rs.1,00,000/- to the claimants which shall be apportioned in between the claimants in equal shares. The amount will bear 8% interest from the date of petition till payment.

21. Before parting with this case, it is pertinent to note that as the law now stands when an accident occurs if there is no personal insurance coverage taken by the owner, in a case of death, the dependents will not be getting any amount. As back as in 1977 the Honourable Apex Court sounded a warning in Manjusri Raha‘s case (supra), wherein it is stated as follows :

“With the emergence of an ultra modern age which has led to strides of progress in all spheres of life, we have switched from fast to faster vehicular traffic which has come as a boon to many, though some times in the case of some it has to be proved to be a misfortune—- The time is ripe for serious consideration of creating no-fault liability. Having regard to the directive principles of State policy, the poverty of the ordinary run of victims of automobile accidents, the compulsory nature of insurance of motor vehicles, the nationalisation of general insurance companies and the expanding trends towards nationalisation of bus transport, the law of torts based on no-fault needs reform.”

22. It is also relevant to quote a passage from the decision in Motor Owners’ Insurance Company Limited’s case (supra), which reads as follows :

“There is a niggardly recognition of the State’s obligation to its people particularly so when the frequency of accidents involving the public transport system has increased beyond believable limits.”

23. It is a fact that motor vehicles are dangerous in nature by its speed as well as by its working mechanism. Two wheelers cannot be considered as a luxury now. Even small young families travelling upon two wheelers is a common sight on the roads. This single track vehicles are highly pron to accident. Its dynamics of motion is highly complicated. It is the vehicle of the poor as well as the rich, but at the same time risk due to accident attached to the same is very high. Roads are provided by the Government to ply the vehicles. There are different kinds of motor vehicles including the motor bikes, where the owner will be riding the same on the public roads provided by the Government without any personal insurance coverage. Use and allied aspects of a motor vehicle are covered by the Motor Vehicles Act. As per the provision, personal injury coverage is not compulsory. Roads to ply the vehicles are provided and maintained by the Government. Under such a circumstance, there will be a welfare state liability for the Government, which will partially eclipse the maxim volunti non fit injuria and fault liability theory. Liability of the Government can be made limited. But the Government cannot elude from its limited liability in a case of accident occurring in a public road, where road tax is levied by the Government. Government can either shoulder it by itself or can fasten upon the authorised insurance company by statutorily making the company liable over and above the liability of the insured when they indemnify i.e., at the moment they are entering into an insurance contract as required under Chapter XI of the Motor Vehicles Act, they should be made statutorily liable for the welfare state liability. An appropriate change in the statute that will make the Government/the insurer liable for a fixed sum, as in the case of Section 140 of the Motor Vehicle Act, payable to the owner in case of injury/death is the need of the day. This aspect needs due attention and we fervently hope and wish that it will gain deserving attention from the concerned.

Thus, this appeal is partly allowed as stated above. There will be no order as to costs.

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