National Insurance Company Ltd. vs Rajamma, Beena and Jose

Ramakrishna Pillai, J.—The Insurance Company is in appeal. The respondents who are the mother and sister of one Biju approached the Tribunal claiming compensation for the death of Biju in a road traffic accident occurred on 21/07/01. Allegedly the deceased, a tailor by profession, was returning home at about 11.30 p.m on the ill-fated day after his work. He was riding a motorcycle belonging to the third respondent. While so, he lost control over the vehicle at the relevant spot and hit against an electric post standing on the road side whereby he fell down sustaining a head injury. Though he was taken to the Medical College Hospital, Thiruvananthapuram, he breathed his last on the next day while undergoing treatment. The claim was u/s 163-A. The learned Tribunal awarded a sum of Rs. 2,76,500/- as compensation together with interest at the rate of 9% per annum against the claim of Rs. 6 lakhs.

In this appeal the Insurance Company is disputing their liability mainly on four grounds. The first ground is that the policy issued by them was an act only policy which covers the risk of the third parties only. The second ground is that the annual income of the deceased exceeded Rs. 40,000/- and accordingly the claim should not have been entertained u/s 163-A as per the decision of the Apex Court in Deepal Girishbhai Soni v. United India Insurance Co. Ltd. (2004(2) KLT 395 SC). The third ground is that the deceased was riding the two wheeler involved in the accident with the consent of the third respondent who is the registered owner and thus he stepped into the shoes of the registered owner which dis-entitle him to get compensation as per the decision of the Apex Court in Ningamma and Another Vs. United India Insurance Co. Ltd., . The fourth ground is that as the accident was caused due to the negligence of the deceased himself the claimants are to be non-suited even though the claim is u/s 163-A of the Act. In support of the argument reliance was placed on the decision of the Apex Court in National Insurance Company Ltd. v. Sinitha ( 2011 (4) KLT 821 SC).

We have heard the submissions of the learned counsel for the appellant and the learned counsel for the respondents claimants. The impugned award was also perused.

Ext.B1 is the copy of the Insurance policy which will go to show that it is only an act only policy which takes over the risk of the third party only.

In Deepal Girishbhai Soni v. United India Insurance Co. Ltd. (cited supra) it was observed by the Apex Court that the proceeding u/s 163-A of the Motor Vehicle''s Act being a social security provision, providing for a distinct scheme, only those whose annual income is up to Rs. 40,000/- can take the benefit thereof. It was observed that other claims are required to be determined in terms of Chapter 12 of the Act. Viewed in that profile the claim preferred by the respondents is not at all maintainable as the monthly income of the deceased as per the claim is Rs. 4,000/-.

There are other reasons also for non-suiting the respondents/claimants. It is in evidence that the deceased himself has caused the accident. He was riding a two wheeler owned by the third respondent. A similar case was considered by the Apex Court in Ningamma v. United Insurance Co. Ltd. (cited supra). There also a scooterist sustained injuries due to his own fault and the Apex Court held that the deceased stepped into the shoes of the registered owner as he was riding the vehicle with the consent of the registered owner. Hence, he cannot claim compensation as he was not a third party.

As already observed by us Ext.B1 policy was an act only policy which did not cover the risk of the rider of the vehicle. Only in a case where the coverage of rider is included in the policy or where the owner of the policy is covered and the permitted rider takes the position of an owner by virtue of the terms of contract then alone the insurer would be liable to pay compensation (see Oriental Insurance Co. Ltd. v. Joseph (2012 (2) KHC 1).

The claim petition is bound to fail also because of the fact that it was the negligence of the deceased which caused the accident though the claim is one u/s 163-A of the Act which is liable to be defeated on account of proved negligence of the injured/deceased. This position is settled after the decision of the Apex Court in National Insurance Company Ltd. v. Sinitha (2011 (4) KLT 821 SC),

For the reasons stated above, we see force in the grounds raised by the appellant Insurance Company. We hold that the appellant is not liable to pay any compensation to the respondents/claimants and that the claim itself is not maintainable. In the result, we allow the appeal. The impugned award is set aside. The claim petition shall stand dismissed.