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2012 Supreme(Online)(KER) 7283
HIGH COURT OF KERALA
K.HEMA, P.S.GOPINATHAN, JJ
THE ORIENTAL INSURANCE CO. LTD. – Appellant
Versus
P.P.NANDANAN AND ANOTHER – Respondent
MACA 2211 2007
ADV. SRI.GEORGE CHERIAN (THIRUVALLA), ADV. SRI.M.ANIL KUMAR, ADV. SMT.PREETHI K.PURUSHOTHAMAN
Insurers can avoid liability under Section 163A if they prove negligence on the part of the claimant, affirming fault liability principles.
Headnote:
Liability - Motor Vehicle Accident - Motor Vehicles Act - Sections 140, 166, 163A - The court emphasized that Section 163 A claims can be defeated by proving the fault of the claimant, affirming the insurer’s non-liability when the insured caused the accident.
Fact of the Case:
A motor cycle, owned and ridden by the respondents, collided with a pedestrian, leading to the pedestrian's death. The claimant sought compensation under the Motor Vehicles Act, alleging rash driving by the rider.
Issues: Whether the insurer is liable to compensate the injured rider who caused the accident due to his own negligence.
Ratio Decidendi: The court held that claims under Section 163 A can be contested by proving the claimant's fault, and where the insurer establishes that the claimant's actions caused the incident, liability can be negated.
Final Decision: The appeal is allowed and the award against the insurer is set aside.
JUDGMENT
Gopinathan, J.
Appellant is the 2nd respondent in O.P.No.2917/2002 on the file of the Motor Accidents Claims Tribunal, Thrissur. At 7.30 p.m on 26.6.2001 at Aramkallu along Thrissur-Palakkad National Highway, a motor cycle bearing Reg.No.KL/J 6378 ridden and owned by respondents 1 and 2 hit against one Majid, a pedestrian. Appellant was the insurer. As a result of the hit, Majid and the 1st respondent, fell down and sustained injuries. At 9.30 p.m on the same day, Majid succumbed to the injuries while undergoing treatment at the Medical College Hospital, Thrissur. Legal heirs of Majid filed a petition as O.P.No.1885/2001 before the Tribunal seeking compensation against the respondents and the appellant with a plea that the accident occurred because of the rash and negligent riding of the motor bike by the 1st respondent and hence all the respondents are liable to compensate the petitioners. 2. The 1st respondent filed O.P.No.2917/2002 under : 2:
Sections 140 ,166 and 163A of the Motor Vehicles Act against the 2nd respondent and the appellant seeking a sum of Rs.2,00,000/- as compensation with a plea that the 1st respondent sustained injury while using the motor vehicle.
3. In O.P.No.2917/2002, the 2nd respondent did not file any written statement. The appellant filed a written statement, inter alia contending that the accident occurred because of the negligence of the 1st respondent and that the 1st respondent was not covered by the policy which was marked as Ext.B5. Hence, the appellant is not liable to compensate the 1st respondent.
4. After raising the issues, both the petitions were tried jointly. Pending proceedings before the Tribunal, the 1st respondent filed an application to amend the petition to delete Sections 140 and 166 quoted in the petition to make claim petition one under Section 163 A of the Motor Vehicles Act . It was allowed. The 1st petitioner in O.P.No.1885/2001 was examined as PW1. Exts.A1 to A20 and B1 to B6 were marked.
5. The Tribunal on appraisal of the evidence, especially referring to Ext.A6 final report submitted by the police after investigation, by the impugned common award, arrived at a : 3:
finding that the accident occurred because of the rash and negligent driving of the motor cycle by the 1st respondent. Consequently, in O.P.No.1885/2002 an award was passed against the appellant and the respondents. In O.P.No.2917/2002, the Tribunal, in view of the Full Bench decision in National Insurance Co.Ltd. v. Malathi C. Salian (2003 (3) KLT 460 (F.B) found that the 1st respondent is entitled to get compensation from the appellant as he had sustained injury while using the motorbike. On evaluation of the evidence, the Tribunal determined the compensation at Rs.1,23,600/- and the appellant was directed to compensate the 1st respondent as if the claim under Section 163 A is a no faulty liability. Assailing the said award, this appeal is preferred.
6. We have heard the learned counsel on either side.
Perused the award impugned and the evidence on record. The quantum assessed is not assailed. Only the liability is under challenge.
7. The finding of the Tribunal that the accident occurred because of the rash and negligent driving of the motor cycle by the 1st respondent is not assailed. Therefore, it has become : 4:
final. Then the question that arises is whether the appellant is liable to compensate the 1st respondent for the injury sustained by his own negligence. The learned counsel for the appellant would submit that the policy obtained by the 2nd respondent would not cover either the rider or the owner of the vehicle, and therefore, in view of the latest Full Bench decision of this Court in Oriental Insurance Co.Ltd. v. Joseph (2012(2) KLT 132 (F.B), the appellant is not liable to satisfy the award. In that case, the Full Bench, at paragraph-8 it is held that:
“[T]herefore, in a case, where though a claim is raised under Section 163 A, once the insurer or the insured comes up with the defence of a
