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