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Mathew Koshy Vs. the Oriental Insurance Co. Ltd. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtKerala High Court
Decided On
Judge
Reported in2(1988)ACC504
AppellantMathew Koshy
RespondentThe Oriental Insurance Co. Ltd.
Cases ReferredGujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai and Anr.
Excerpt:
.....before claiming any compensation for the permanent disability or death caused on account of the motor vehicle accident. in all other circumstances the owner's liability arises out of his failure to discharge the duty case on him by law. the right to receive compensation can only be against the person who is bound to compensate due to failure to perform the legal obligation. the right to receive compensation can only be against a person who is bound to compensate due to failure to perform a legal obligation. the purpose of the enactment, the road traffic act and making the insurance compulsory, is to protect the interest of the successful claimant from being defeated by the owner of the vehicle section 95(1)(b)(i) of the act says that the policy of the insurance must be a policy which..........general insurance company and there is no provision for covering the life of the insured under the motor policy. the accident was due to the defect of road. if the accident was due to the defect of the road, the remedy of the appellant is to file a suit for damages against the owner of the road. the respondent also disputed the age, income and occupation of the petitioner. the vehicle was not covered by comprehensive insurance policy against all risks including own damage. the policy covered by only a accidental damage of the vehicle, paid driver, passengers and third party.3. at the time of evidence the appellant had no case that the accident occurred as a result of his own negligence. in the cross-examination he deposed that it was an act of god. the motor accidents claims tribunal.....
Judgment:

K.G. Balakrishnan, J.

1. Claimant is the appellant. He filed a petition under Section 110-A of the Motor Vehicles Act for compensation. The appellant was owner-cum-driver of an auto-rickshaw bearing registration No. K.R.P. 1591. When the appellant was driving his auto-rickshaw through Chittoor-Manapullykavu road, the vehicle fell into a ditch and capsized. The appellant was trapped underneath the auto-risckshaw and sustained bodily injuries. He was admitted in the District Hospital, Palghat as an inpatient. The appellant spent about Rs. 2000/- towards medical treatment. In spite of the treatment the appellant is disabled. He is unable to move his left hand. He would not be in a position to drive the auto-rickshaw. His income has been considerably reduced. He suffered mental agony and pain. Appellant alleges that the respondent being the insurer of the auto-risckshaw is liable to compensate him.

2. The respondent, insurance company, denied their liability. The policy issued by the respondent does not cover such a liability. The negligence of the owner or the driver is a basic necessity for any liability under the policy. The petitioner's risk is not covered by the policy. The respondent is a general insurance company and there is no provision for covering the life of the insured under the motor policy. The accident was due to the defect of road. If the accident was due to the defect of the road, the remedy of the appellant is to file a suit for damages against the owner of the road. The respondent also disputed the age, income and occupation of the petitioner. The vehicle was not covered by comprehensive insurance policy against all risks including own damage. The policy covered by only a accidental damage of the vehicle, paid driver, passengers and third party.

3. At the time of evidence the appellant had no case that the accident occurred as a result of his own negligence. In the cross-examination he deposed that it was an act of God. The Motor Accidents Claims Tribunal held that Section 110A of the Motor Vehicles Act is not applicable to the facts and circumstances of the case and it was held that the petition is not maintainable. This finding is challenged by the appellant.

4. The main argument advanced by the counsel for the appellant is that the Motor Vehicles Act is a self-contained code and under Section 110B the Tribunal after enquiry has to fix the compensation which appears to it to be just. It was contended that it is not necessary that the claim should always be based on negligence, or that it should be based on the principles of tort as defined by the Common Law of England. The learned Counsel for the appellant also drew our attention to Section 110A of the Motor Vehicles Act. The relevant Sections 110A and HOB are as follows:

110A--Application for compensation--(1) An application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 110 may be made--

(a) by the person who has sustained the injury; or (a) by the owner of the property; or

(b) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or

(c) by any agent duly authorised by the person injured by all or any of the legal representatives of the deceased, as the case may be.

Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives who have not so joined, shall be impleaded as respondents to the application.

(2) Every application under Sub-section (1) shall be made to the Claims Tribunal having jurisdiction over the area in which the accident occurred, and shall be in such form and shall contain such particulars as may be prescribed.

xx xx xx xx(3) xx xx xx xx110-B. Award of the Claims Tribunal--On receipt of an application for compensation made under Section 110-A, the Claims Tribunal shall, after giving the parties an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of Section 109-B, may make an award determining of the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid; and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be.

Based on the wording of Section 110A it was contended that there is nothing in the provisions of the Act and the scheme, to hold that the claim should only be based on negligence and that the law of torts is all comprehensive and must therefore govern all cases of compensation. It was urged that under Section HOB the Claims Tribunal shall make an award determining the amount of compensation 'as it appears to it to be just' specifying the person or persons to whom compensation shall be paid, and there are no words of limitation in the section limiting the scope of authority of the Tribunal to award such compensation. On these premises it was contended that the Insurance company is liable to compensate the appellant for the injury he had suffered even though there was no negligence on his part.

5. Section 110B of the Motor Vehicles Act does not in terms by lay down that it is only when negligence on the part of the driver of the vehicle concerned is established that compensation can be awarded. The provisions of the Motor Vehicles Act, namely, Sections 110 to HOP merely deal with special powers of the Motor Accidents Claims Tribunal in the place of the Civil courts for the purpose of adjudicating claims for compensation in respect of accidents involving death or bodily injury to persons arising out of the use of motor vehicles. They do not deal with the question as to who is to be held liable and in what circumstances, if any, for the injury resulting from an accident.

6. A Division Bench of Madras High Court in Sheikhupura Transport Co. Ltd. 1971 ACJ 206 held as follows:

One of the contentions raised on behalf of the appellants is that as Section HOB of the Act speaks of the Tribunal making 'an award determining the amount of compensation which appears to it to be just', the powers of the Tribunal are independent of the provisions of the Fatal Accidents Act (as well as that under the Legal Representative's Suits Act) and that therefore the provision of the Act must be construed ad substantive provisions and not merely procedural in character. This contention is fallacious. It is true that the Tribunal has to determine 'the amount of compensation which appears to it to be just. But the question is, compensation for what. If it is a claim by an insured person, he can certainly claim compensation for the pain, suffering, etc. loss of earning, other pecuniary loss arising out of the injury and shortening of expectation of life, if any, provided the injury or injuries had been caused by a tortious act by the owner of the vehicle, by himself or vicariously. So, even though the Claims Tribunal is given power to determine the amount of compensation which appears to be just, it has necessarily to look to the law of torts in determining such 'just compensation'. Similarly, in case of death due to injuries just compensation awarded by the Tribunal should naturally be only towards loss of benefit, if any, and loss of estate, if any, provided again that the death was caused by a tortious act. Therefore by the more use of the words 'compensation which appears to it to be just' in Section 110-B, the relevant provisions of the Act (Section 110 to 110F of the Act) cannot be said to create new rights or liabilities. It can never be contended that these provisions in the Act are in any way meant to alter or amend the pre-existing law relating to substantive rights and liabilities of the parties.

In Ram Pratap v. General Manager, Punjab Roadways it was held that a claim arising out of a motor accident before the Claims Tribunal has to be decided on the basis of law of torts and the Claimant has to establish that the accident was the result of negligence. Similar view was expressed by the Supreme Court in Kinu B. Mehta and Anr. v. Balakrishna Ramachandra Navan and Anr. 1977 ACJ 118. In paragraph 29 of the judgment, His Lordship Justice Kailasam speaking for the Bench held:

Section 110(1) of the Act empowers the State Government to constitute one or more Motor Accidents Claims Tribunal for such area as may be specified for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death or bodily injury to person. The power is optional and the State Government may not constitute a Claims Tribunal for certain areas. When a claim includes a claim for compensation (sic. the claimant) has an option to make his claim before the civil court. Regarding claims for compensation therefore in certain cases Civil Courts also have jurisdiction. If the contention put forward is accepted so far as the civil Court is concerned it would have to determine the liability of the owner on the basis of common law of torts while the Claims Tribunal can award compensation without coming to the conclusion that the owner is liable. The concept of owner's liability without any negligence is opposed to the basic principles of law. The mere fact that a party received an injury arising out of the use of a vehicle in public place cannot justify fastening liability on the owner. It may be that a person bent upon committing suicide may jump before a car in motion and thus get himself killed. We cannot perceive by that reasoning the owner of the car could be made liable. The proof of negligence remains the lynch pin to recover compensation. The various enactments have attempted to mitigate a possible injury to the claimant by providing for payment of the claims by insurance.

We are not unmindful of the observations made by the Supreme Court in Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai and Anr. : [1987]3SCR404 that the observations in Minu B. Mehta's Case : [1977]2SCR886 were in the nature of obiter dicta, in holding there was no necessity to go into the question whether the proof of negligence on the part of the driver of the motor vehicle was necessary or not, to claim damages under Chapter VIII of the Act. But this observations of the Supreme Court in G.S.R.T. Corporation's case : [1987]3SCR404 came while considering the claim under Section 92-A of the Act. His Lordship Justice Venkataramiah observed that Section 92-A is clearly a departure from the usual Common Law principle that a claimant should establish negligence on the part of the owner or driver of the motor vehicle before claiming any compensation for the permanent disability or death caused on account of the motor vehicle accident. It was further held, to that extent the substantive law of the country stands modified.

7. From the above, it is clear that the substantive law of the country must be modified only to the extent of Section 92-A. In all other circumstances the owner's liability arises out of his failure to discharge the duty case on him by law. The right to receive compensation can only be against the person who is bound to compensate due to failure to perform the legal obligation. The plea that Claims Tribunal is entitled to award compensation which it appears to it to be just even without proof of negligence cannot be accepted. The pleas of the appellant ignores the basic requirement of the owner's liability. The right to receive compensation can only be against a person who is bound to compensate due to failure to perform a legal obligation.

8. For other reasons also the claim put forward by the appellant is not sustainable. A contract of insurance in the widest sense of the term may be defined as a contract whereby one person called the 'insurer' undertakes in return for the agreed consideration called the 'premium' to pay to another person called the 'assured' a sum of money or its equivalent on the happening of a specified event. (See ER Hardy Ivamy--General Principles of Insurance Law--Fourth Edn. Page 3). A system of compulsory insurance was enacted by the Road Traffic Act, 1930. The compulsory insurance was introduced to cover the liability which the owner of the vehicle may incur. The purpose of the enactment, the Road Traffic Act and making the insurance compulsory, is to protect the interest of the successful claimant from being defeated by the owner of the vehicle Section 95(1)(b)(i) of the Act says that the policy of the insurance must be a policy which insures the person or classes of persons specified in the policy. The classes of persons are mentioned in Section 95(1). A reading of the section would reveal that the compulsory insurance contemplated under Section 95 of the Act is to indemnify the owner of the vehicle from the liability if any. If the owner himself suffers an injury in an accident, he does not acquire any right to get compensation from the insurance company under the policy issued by the respondent is a contract of indemnity to satisfy the conditions laid down under Section 95 of the Act. The ingredients of the law of insurance are nowhere provided in the special statute. Necessarily therefore the matter will be governed by the general substantive law which remains unaltered by the special law. If the insurer is not liable, then the insured is also not liable. In other words the liability of the insurer depends upon the liability of the insured. Under the law, negligence of the owner or driver is a sine qua non for such liability.

9. A personal accident insurance alone can cover a claim put forward by the appellant. Personal insurance is intended to secure to the assured or his representative the payment of a sum of money in the event of his disablement or death by accident. It resembles life insurance and differs from other classes of insurance and it is not a contract of indemnity but a mere contract to pay a sum of money in a certain contingency. The appellant has no case that the, policy issued to him by the respondent is a personal accident insurance policy.

10. The appellant himself has admitted that the accident occurred due to the bad condition of the road. Ext. A6 insurance policy is not a personal accident insurance policy and it does not cover such liability. The petition filed by the appellant has been rightly dismissed by the Tribunal.

11. We see no reason to interfere with the finding of the Tribunal. The appeal is dismissed in limine.


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