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M/s. Iffco Tokio General Insurance Co. Ltd., Chennai v/s Parvathi & Others


Company & Directors' Information:- GENERAL INSURANCE CORPORATION OF INDIA [Active] CIN = L67200MH1972GOI016133

Company & Directors' Information:- GENERAL INSURANCE CORPORATION OF INDIA [Active] CIN = U67200MH1972GOI016133

Company & Directors' Information:- IFFCO-TOKIO GENERAL INSURANCE COMPANY LIMITED [Active] CIN = U74899DL2000PLC107621

Company & Directors' Information:- CHENNAI INSURANCE COMPANY LIMITED [Strike Off] CIN = U67200TN2000PLC045622

Company & Directors' Information:- I.N. INSURANCE COMPANY PRIVATE LIMITED [Strike Off] CIN = U67200DL1994PTC062554

Company & Directors' Information:- INSURANCE OF INDIA LTD [Strike Off] CIN = U67200WB1936PLC008634

    C.M.A. No. 1251 of 2019 & C.M.P. No. 3485 of 2019

    Decided On, 21 August 2020

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE S.M. SUBRAMANIAM

    For the Appellant: M.B. Raghavan, Advocate. For the Respondents: R1 to R4, No appearance, R5, N.E.A. Dinesh, Advocate.



Judgment Text


(Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act 1988, against the Judgment and decree in MCOP.No.828 of 2013, dated 17.04.2014, on the file of the Motor Accidents Claims Tribunal, Special Subordinate Court, Krishnagiri.)

1. The Civil Miscellaneous Appeal is filed against the judgment and decree dated 17.04.2014 made in M.C.O.P.No.828 of 2013 on the file of Motor Accident Claims Tribunal / Special Subordinate Court, Krishnagiri.

2. M/s.Iffco Tokio General Insurance Company Limited is the appellant and the learned counsel appearing on behalf of the appellant strenuously contended that the appellant is not liable to pay any compensation under the Statute.

3. The facts in nutshell to be considered is that the accident occurred on 04.10.2010 at about 2.30 p.m., at Veppanpalli to Kundarapalli Road. Gurubarapalli Police Station registered a case in Crime No.183/2010 under Sections 279 and 304(A) of I.P.C. The deceased was proceeding in the two wheeler bearing Registration No.TN-24-E-0738 in order to reach his village. He sustained fatal injury and died on 07.10.2010. As per the Claim Petition, the age of the deceased was 22 years at the time of accident and he was working as a Loadman in T.K.M.Saw Mill, Krishnagiri. His monthly income was Rs.3,000/-. The claimants filed the Claim Petition, seeking compensation of a sum of Rs.5,00,000/-. The Tribunal adjudicated the issues with reference to the documents and evidences produced by the respective parties and granted a total compensation of a sum of Rs.4,64,500/-. The appellant is held liable to pay compensation.

4. The learned counsel appearing on behalf of the appellant mainly contended that the deceased is not covered under the Insurance Policy. The Claim Petition itself is not maintainable. The deceased was riding two wheeler belonging to one Mr.S.Perumal and the said two wheeler bearing Registration No.TN-24-E-0738 was insured with the appellant/Insurance company. The deceased was riding the two wheeler in the extreme left side of the road and a dog suddenly crossed and the two wheeler dashed against the Electric Pole. On account of the sudden impact, the deceased sustained fatal injuries and he was taken to Government Hospital, Krishnagiri and to the Private Hospital at Bangalore and Coimbatore and died thereafter. The rider of the two wheeler had ridded the vehicle without the knowledge of the owner and therefore, he was not an authorized person. Thus, the appellant is not responsible to pay compensation. The deceased himself is the accused in the criminal case and the charge got abated due to the fact that he died. The deceased was not possessing a valid driving licence and the owner of the vehicle unauthorizedly permitted the deceased to ride the vehicle. Thus, it is violation of the policy and there is no liability on the part of the appellant/Insurance company.

5. The learned counsel for the appellant contended that the Claim Petition itself was filed under Section 163-A of the Motor Vehicles Act and the deceased cannot be treated as a third party and he stepped into the shoes of the owner and therefore, there is no coverage under the policy and consequently, the appellant/Insurance company cannot be held liable to pay compensation.

6. The learned counsel appearing on behalf of the respondent/claimant opposed the contentions of the appellant by stating that the deceased was covered under the third party coverage and therefore, the Tribunal has not committed any error in granting compensation to the claimants.

7. Perusal of the judgment of the Tribunal reveals that mother of the deceased/P.W.1. clearly deposed that the two wheeler was driven by the deceased on the date of accident. The two wheeler was insured with the 2nd respondent. Even as per the F.I.R., the accident occurred due to the sudden cross of the dog and the two wheeler dashed against the Electric pole, which resulted fatal injuries to the deceased and therefore, the claimants are entitled for compensation. The ground raised by the appellant/Insurance company that the deceased was an unauthorized person, he stepped into the shoes of the owner and evidence also reveals that the owner has not granted any permission and he ridded the vehicle without the knowledge of the owner and therefore, the mode of compensation is in violation of the provisions of the Motor Vehicles Act. The Tribunal has considered the Policy as a comprehensive policy and the policy coverage is made available and therefore, the appellant/Insurance company is liable to pay compensation. The entire finding of the Tribunal reveals that the compensation was awarded on the ground that there is an Insurance Policy in respect of the vehicle and therefore, the Insurance company is liable to pay compensation. However, the Tribunal has ordered Pay and Recovery. The compensation is to be paid by the Insurance company and may be recovered from the owner of the vehicle. The Tribunal has not considered the legal point with reference to the coverage and liability to pay compensation with reference to the provisions of the Motor Vehicles Act.

8. Admittedly, the Claim Petition was filed under Section 163-A of the Motor Vehicles Act. The facts are not disputed. The deceased was unauthorizedly riding the vehicle. The owner of the vehicle had no knowledge about the riding of the vehicle by the deceased. Therefore, there is no coverage in the policy as the deceased had stepped into the shoes of the owner, while riding the vehicle. In the present case, no other vehicle had involved in the accident and the Tribunal has granted compensation merely on the ground that the policy was in existence and therefore, the claim is entitled for the compensation. Such an approach cannot be approved by this Court. Existence of the policy is one aspect of the matter and liability to pay compensation is to be considered by the Tribunal with reference to the coverage as well as the conditions stipulated in the policy. The Insurance Policy is a contract and the contractual obligations are binding on the policy. Mere existence of the Insurance policy is insufficient to grant compensation to the claimants. Existence of the policy is the primary ground to be considered and thereafter, the liability to pay compensation by the Insurance company is also to be decided with reference to the provisions of the Act as well as the facts and circumstances of the case with reference to the conditions stipulated in the policy. The Insurance Policy being a contract, the conditions are binding on the policies. Therefore, the approach of the Tribunal that the policy was in existence at the time of accident and therefore, the Insurance company is liable to pay compensation is error apparent and cannot be approved.

9. Section 163-A of the Motor Vehicles Act cannot have any application in respect of the accident occurred, wherein, the owner of the Motor Vehicle himself involved in the said accident.

10. In the present case on hand, the rider of the Motor Vehicle met with an accident and he was riding the vehicle without the knowledge of the owner and therefore, it is to be construed that the rider/deceased stepped into the shoes of the owner and consequently, the claimants are not entitled for compensation with reference to the principles settled in this regard. There is no coverage for the owner. The rider of the vehicle in this case cannot be construed as a third party. Thus, this Court has to follow the earlier judgment, which was passed in C.M.A.No.3348 of 2017 dated 05.03.2020, which was delivered based on the judgment of the Hon'ble Supreme Court of India and the relevant paragraphs are extracted hereunder:

“5. The Tribunal adjudicated the issues and found that the factum regarding the accident was established. The Tribunal further considered the fact that the FIR itself was registered after a lapse of about 210 days from the date of accident. As far as the accident is concerned, it was contended before the Tribunal that the JCB vehicle, which came behind the two wheeler driven by the claimant hit from the backside and caused injury to the claimant. Therefore, the owner and the driver of the JCB vehicle are liable to pay compensation and they have not been impleaded as party in the claim petition. However, the Tribunal has not adjudicated the grounds raised regarding the maintainability of the claim petition under Section 163-A of the Motor Vehicles Act, 1988. The Tribunal proceeded on the basis that the accident occurred and the FIR was registered after the lapse of about 210 days and the injuries were established and there is a policy and therefore, the Insurance Company is liable to pay compensation. The factors are to be considered for entertaining the claim petition under Section 163-A of the Motor Vehicles Act, 1988, have not been considered by the Tribunal.

6. In this regard, the learned counsel appearing on behalf of the appellant cited the judgment of the Hon'ble Supreme Court of India in the case of Ningamma and Another vs. United India Insurance Co. Ltd [2009 ACJ 2020], wherein in paragraphs 18 and 19, it has been held as under:-

“18. In the case of Oriental Insurance Co. Ltd. vs. Rajni Devi [(2008) 5 SCC 736 : (2008) 3 SCC (Cri) 67] wherein one of us, namely, Hon'ble S.B. Sinha, J. was a party, it has been categorically held that in a case where third party is involved, the liability of the insurance company would be unlimited. It was also held in the said decision that where, however, compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the claimant against the insurance company would depend upon the terms thereof. It was held in Oriental Insurance Co. Ltd. case [(2008) 5 SCC 736 : (2008) 3 SCC (Cri) 67] that Section 163-A of the MVA cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved. The decision further held that the question is no longer res integra. The liability under Section 163-A of the MVA is on the owner of the vehicle. So a person cannot be both, a claimant as also a recipient, with respect to claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163-A of the MVA. In our considered opinion, the ratio of the decision in Oriental Insurance Co. Ltd. case [(2008) 5 SCC 736 : (2008) 3 SCC (Cri) 67] is clearly applicable to the facts of the present case. In the present case, the deceased was not the owner of the motorbike in question. He borrowed the said motorbike from its real owner. The deceased cannot be held to be an employee of the owner of the motorbike although he was authorised to drive the said vehicle by its owner and, therefore, he would step into the shoes of the owner of the motorbike.

19. We have already extracted Section 163-A of the MVA hereinbefore. A bare perusal of the said provision would make it explicitly clear that persons like the deceased in the present case would step into the shoes of the owner of the vehicle. In a case wherein the victim died or where he was permanently disabled due to an accident arising out of the aforesaid motor vehicle in that event the liability to make payment of the compensation is on the insurance company or the owner, as the case may be as provided under Section 163-A. But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to pay the same is on him. This proposition is absolutely clear on a reading of Section 163-A of the MVA. 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 163-A of the MVA.”

7. The Apex Court held that Section 163-A of the Motor Vehicles 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 163-A of the MVA is on the owner of the vehicle. So a person cannot be both, a claimant and also a recipient, with respect to claim. Thus, the heirs of the deceased could not have maintained a claim in terms of Section 163-A of the Motor Vehicles Act.

8. In the present case also the claimant borrowed the vehicle from the owner and therefore he stepped into the shoes of the owner of the vehicle and therefore, claim petition under Section 163-A of the Motor Vehicles Act, is not entertainable. The Tribunal has not adjudicated this vital issue, despite the fact that there is a force in this regard and the counter filed by the appellant/Insurance Company also has raised defence. In this regard deposition by RW- 1 Mr.Chandrasekar reveals the facts as under:-

“8. TAMIL”

11. The counter filed by the owner of the vehicle namely Mr.Perumal reveals that the rider of the Hero Honda vehicle driven the same in a rash and negligent manner without observing the rules of the road and hit against the Electric pole, which resulted in an accident. Therefore, the owner of the vehicle cannot be held liable for compensation. However, the owner of the vehicle has not stated anything in counter that the deceased had ridden the vehicle with his knowledge or without his knowledge. In the absence of any specific averment that the rider of the vehicle had driven the vehicle without the knowledge, it is to be presumed that the owner of the vehicle was aware of the fact that the rider of the vehicle had taken the vehicle.

12. Under these circumstances, this Court is of the considered opinion that the deceased stepped into the shoes of the owner and therefore, there is no coverage in the policy. For all purposes, the deceased taken the vehicle from the owner and accordingly, stepped into the shoes into the owner of the vehicle. Thus, the Claim Petition under Section 163-A of the Motor Vehicles Act is not entertainable. The Tribunal has not adjudicated these issues at all, despite the fact that there is a ground stated by the appellant/Insurance company before the Tribunal. The Tribunal has not adjudicated the vital grounds raised by the Insurance company. The findings of the Tribunal also reveals that there is no such adjudication with reference to the liability of the Insurance company with reference to Section 163-A of the Motor Vehicles Act. There is no evidence to establish that the deceased was a third party and there is a policy coverage. Thus, the Claim Petition under Section 163-A of the Motor Vehicles Act is not entertainable.

13. 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 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.

14. 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;

(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.

15. 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 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.

16. 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, Courts are bound to consider the terms and conditions and the binding clauses between the parties.

17. 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 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 ve

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hicle 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. 18. 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 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. 19. In view of the principles settled in the cases cited supra, this Court has no hesitation in arriving a conclusion that the Tribunal had committed an error in granting compensation to the claimant. Accordingly, the judgment and decree dated 17.04.2014 passed in M.C.O.P.No.828 of 2013 is set aside and the Civil Miscellaneous Appeal in C.M.A.No.1251 of 2019 stands allowed. 20. The amount deposited by the appellant/Insurance Company, if any, in the credit of M.C.O.P.No.828 of 2013 on the file of the Motor Accidents Claims Tribunal / Special Sub-Court, Krishnagiri, is permitted to be withdrawn by the appellant/Insurance Company, by filing an appropriate application. No costs. Consequently, connected miscellaneous petition is closed.
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