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.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
FRIDAY, THE 2ND DAY OF SEPTEMBER 2016
MACA.No. 2102 of 2013
L.MINI,
Vs
GIREESHKUMAR,
PRESENT:
MR.JUSTICE C.T.RAVIKUMAR
&
MR. JUSTICE K.P.JYOTHINDRANATH
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 2nd 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-cum-
driver 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 Aof 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 MADHYA
PRADESH 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.
C.T.RAVIKUMAR, JUDGE
K.P.JYOTHINDRANATH, JUDGE
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