Posted On by &filed under High Court, Kerala High Court.


Kerala High Court
Oriental Insurance Co. Ltd. vs Vasudevan Nair on 31 October, 2000
Equivalent citations: I (2002) ACC 603, 2002 ACJ 603
Author: J.B.Koshy
Bench: J Koshy, N K Nair


ORDER

J.B.Koshy, J.

1. Appellant-insurance company questions the award of the Motor Accidents Claims Tribunal, Neyyattinkara awarding a total compensation of Rs. 48,940/- to the autorickshaw driver, who met with an accident when a cow, grazing at the side of the road, jumped on the road. There was a compound fracture of both bones of left leg and plaster applied. The claimant was a member of Taxi Drivers Co-operative society, wherein all the members are drivers. Claimant was in possession of the autorickshaw on the basis of Ext.XI hire purchase agreement from the society and District Co-operative Bank was financing the society for enabling the driver members to purchase autorickshaws drivers tot he society and they will become full owners only when the entire amount is paid. Even though there is a bald statement by the claimant in the deposition that he was employed by the society on monthly wages, no evidence was adduced to prove that he was an employee of the society. In fact, the finding of the Tribunal is also that he was a member of the society and got the autorickshaw on Ext.XI hire purchase agreement. In the First Information statement given by the claimant himself it was deposed that he owned the autorickshaw when the accident happened. It is contended by the insurance company that since the owner himself is the injured, he cannot claim compensation against anybody including the society from whom he took the vehicle. It is submitted that the insurance company is liable only to indemnify the insured. It is further contended that the claimant himself is the owner of the vehicle and for personal injuries of the owner, insurance company is not labile to pay any compensation. Even if there is liability, that only relates to liability of owner for the damages incurred by third parties, which is to be indemnified by the insurer. Here, there is nothing to be indemnified. It is contended by the claimant is not the owner, but the society is the owner and society has taken the insurance. Policy was not produced. We assume that as contended by the claimant, insurance was in the name of the society as the insurer did not produce the policy to contend otherwise.

2. S. 2(30) of the Motor Vehicles Act defines ‘owner’ as follows:

“(30) ‘Owner’ means a person in whose name the motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire purchase agreement or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement;”

Hence, hire purchaser is the owner in possession of the motor vehicle even though he will become full owner only when he pays last instalment. The case of the insurance company is that they are not liable to pay compensation as the claimant is the owner. Even if the society is the owner, society has no liability to pay compensation to the claimant and, consequently, insurance company is also not liable as liability of the insurance company is only to indemnify the owner.

3. The learned counsel for the contesting respondent also relied on the decision reported in Secretary, Cannanore Co-op. Autorickshaw Drivers Society v. Santhosh (1997 (1) KLJ 306). In that case, driver of an autorickshaw owned by a member of the co-operative society met with an accident. There the Court held that being a paid driver, there was a vicarious liability to pay compensation. Hirer being a member of the society, the society, as a principle employer, has to pay compensation as provided under the Workmen’s Compensation Act. That was a case claiming compensation under the Workmen’s Compensation Act for an accidental injury caused to a ‘worker’ of the member of the society and ownership of the autorickshaw was with the society. Here, the autorickshaw was not driven by a paid employee of the co-operative society or appellant. Here, the member got the autorickshaw on the basis of Ext. X1 hire purchase agreement and he himself was driving the vehicle. There was no question of vicarious liability or employer’s liability under the Workmen’s Compensation Act as reported in 1997 (1) KLJ 306 (supra). Since the claimant was nt an employee, there is no question of vicarious liability or employer’s obligation to pay workmen’s compensation on the part of the society which is to be indemnified by the insurance company. Since the accident occurred while a member of the society himself was driving the vehicle, there is no liability on the insurance company or the society to pay compensation and the contention of the insurance company has to be accepted and the award of the Tribunal granting the compensation is set aside.


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