UNITED INDIA INSURANCE CO LTD Vs. VIJAYARAJAN

JUDGEMENT

(1.) Appellant is the 2nd respondent in a petition filed under Section 163A of the Motor Vehicles Act. Respondents 1 to 4 are the claimants. They are the legal representatives of one Anilkumar who died in a motor vehicle accident. It was their case that the said Anilkumar was riding his motor cycle towards his residence and it hit accidentally on a concrete electric post which stood on the eastern side of the road and he sustained injuries to which he succumbed. The 5th respondent in the appeal is the registered owner and the appellant was the insurer. The claim was raised for Rs. 4,99,500/-. The Tribunal has placed reliance of the Full Bench judgment of this Court reported in National Insurance Co. Ltd. v. Malathi C. Salian, 2003 3 KerLT 460 (FB) and held that the plea that the appellant is not liable cannot be sustained and accordingly, it was found that the application under Section 163A is maintainable. It is accordingly that the Tribunal allowed the claim petition in part and awarded a sum of Rs. 2,70,000/-with 8% interest from the date of filing of the petition till the date of realisation from the appellant and the owner of the motor cycle. It is feeling aggrieved by the same, the present appeal is filed.

(2.) We heard learned Counsel for the appellant Sri. A. R. George, as also learned Counsel for the respondents Sri. Jimmy George. Learned Counsel for the appellant would submit that being an application under Section 163A of the Motor Vehicles Act it is not open to the Tribunal to award compensation to the claimants in a case where the deceased had admittedly borrowed the vehicle from its owner-driver and caused the accident which ultimately culminated in his death. In support of this plea, he relied on the decision of the Apex Court in Civil Appeal Nos. 3538/09 and 3540/09. Therein, the Apex Court was considering a case where the deceased was driving a motor cycle which he borrowed from its real owner and it was a case that when it was proceeding on the road, a bullock cart proceeding ahead of the said motor cycle stopped suddenly and consequently the deceased dashed against it sustaining fatal injuries and dying on the way to the hospital. It is apposite to refer paragraphs 16, 17, 18, 19, and 20. They read as follows:

(3.) This pronunciation of the law runs counter to the dictum of this Court laid down by the Full Bench but being the decision- of the Apex Court we are bound to follow the Apex Court by Article 141 of the Constitution. Here also like in the facts of the case before the Apex Court, the deceased was not a registered owner of the vehicle. He was using the motor cycle with the permission of its owner. He dashed against an electric post and sustained injuries which culminated in his untimely death. In view of the dictum laid down by the Apex Court, it is clear that the claimants/respondents 1 to 4 could not have successfully maintained the application under Section 163A of the Motor Vehicles Act.