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2016 DIGILAW 474 (KER)

Khadeeja v. Rushdi

2016-06-07

ANIL K.NARENDRAN, P.R.RAMACHANDRA MENON

body2016
JUDGMENT : Anil K. Narendran, J. The appellants are the claimants in O.P.(MV)No. 1599 of 2013 on the file of the Principal Motor Accident Claims Tribunal, Kozhikode, an application filed under Sections 140 and 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') claiming compensation on account of the death of one Abdul Gafoor (husband of the 1st appellant, father of 2nd and 3rd appellants and son of the 4th appellant) in a motor accident which occurred on 18.4.2013, while he was riding a motor cycle bearing No.KL-57/A-3161 along Thamarassery-Kozhikode Road. The motor cycle was owned by the 1st respondent and insured by the 2nd respondent. When the motor cycle reached the place of accident, a dog jumped in front of it. The deceased lost control of the motor cycle and it capsized, resulting serious injuries to him, who succumbed to injuries at Medical College Hospital, Kozhikode. Claiming a total compensation of 2,94,000/- from the owner and insurer of the motor cycle, claim petition was filed before the Tribunal. 2. Before the Tribunal, the 1st respondent owner was set ex parte. The 2nd respondent insurer filed written statement contending that, the policy issued in respect of the motor cycle in question is only to comply with the statutory requirements of Chapter XI of the Act (i.e., against third party risks). In the said policy the liability of the insurer is specified and that does not include the rider of the motor cycle. An extra premium of 50/- was collected from the insured to cover personal accident to owner-cum-rider. Since the deceased was not the owner of the motor cycle the claimants are not entitled for any compensation. The insurer has also contended that, the accident occurred due to the negligence of the deceased himself and that, the compensation claimed is exorbitant. 3. Before the Tribunal Exts.A1 to A3 were marked on the side of the appellants and Exts.B1 and B2 were marked on the side of the respondents. Both sides have not chosen to adduce any oral evidence. 4. After considering the pleadings and materials on record, the Tribunal accepted the contention of the 2nd respondent insurer that it has no liability under the policy, since the policy covered only the owner-cum-rider and not the rider who is not the owner of the motor cycle. Both sides have not chosen to adduce any oral evidence. 4. After considering the pleadings and materials on record, the Tribunal accepted the contention of the 2nd respondent insurer that it has no liability under the policy, since the policy covered only the owner-cum-rider and not the rider who is not the owner of the motor cycle. The Tribunal has also noticed that, the claimants have not produced the registration certificate of the motor cycle to prove its ownership at the time of accident. The Tribunal held that, the insurer is not liable to compensate the claimants under Section 140 of the Act because the liability is on the owner at the time of accident. Accordingly, the Tribunal dismissed the claim petition. Aggrieved by the award passed by the Tribunal, the appellants/claimants are before this Court in this appeal. 5. We heard the arguments of the learned counsel for the appellants. 6. The fact that the accident occurred as the deceased lost control of the motor cycle when a dog jumped in front of that vehicle is not in dispute. As such the accident is a self made one, occurred solely due to the rash and negligent riding of the motor cycle by the deceased himself, who was also charge sheeted by the Police in Ext.B2 charge sheet. 7. In is trite law that in a claim under Section 166 of the Act, for fixing liability on the respondents, who are the owner, driver and insurer of the offending vehicle, it is imperative for the claimants to prove that the accident was caused by the negligence of the driver or the owner of that vehicle. Thus, negligence on the part of the driver or owner of the offending vehicle is a prime consideration in a claim under Section 166 of the Act. Therefore, where the pleadings and the evidence on record on the side of the claimant are absolutely silent on this crucial aspect of the matter, a claim under Section 166 of the Act cannot be sustained. 8. However, the absence of a specific pleadings in the claim petition filed by the victim or his/her legal heirs will not deter the Tribunal from considering the question of negligence once the Tribunal frame specific issue and the parties lead evidence on that question. 8. However, the absence of a specific pleadings in the claim petition filed by the victim or his/her legal heirs will not deter the Tribunal from considering the question of negligence once the Tribunal frame specific issue and the parties lead evidence on that question. Similarly, there are cases in which the accident 'speaks for itself' so that it is sufficient for the claimant to prove the accident and nothing more. It will then be for the respondents therein to establish that the accident happened due to some other cause than their own negligence. The maxim 'res ipsa loquitur' ('the thing itself speaks') applies whenever it is so improbable that such an accident would have happened without the negligence of the respondents that a reasonable jury could find without further evidence that it was so caused. 9. In Oriental Insurance Company Ltd. v. Meena Variyal ( 2007 (5) SCC 428 ), the Apex Court held that, the victim of a motor accident or his dependents have an option either to proceed under Section 166 of the Act or under Section 163A of the Act. Once they approach the Tribunal under Section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. But if they proceed under Section 163A of the Act, the compensation will be awarded in terms of the Schedule without calling upon the victim or his dependents to establish any negligence or default on the part of the owner or driver of that vehicle. 10. In the instant case, admittedly the deceased was not the owner of the motor cycle in question, as the claimants themselves have arrayed the 1st respondent as the owner of that vehicle. Though the claimants have attributed negligence on the part of 1st respondent owner, they have absolutely no case that the accident occurred due to any mechanical defects in the motor cycle. They contended that the accident occurred due to the negligence of the 1st respondent owner and as such, the 1st respondent owner and the 2nd respondent insurer are jointly and severally liable to compensate them. They contended that the accident occurred due to the negligence of the 1st respondent owner and as such, the 1st respondent owner and the 2nd respondent insurer are jointly and severally liable to compensate them. As held by the Apex Court in Oriental Insurance Company Ltd. v. Rajni Devi ( 2008 (5) SCC 736 ), a person who borrowed motor vehicle from its real owner, who was authorised to drive the said vehicle by its owner, would step into the shoes of the owner of that vehicle. When the fact that the accident occurred as the deceased lost control of the motor cycle when a dog jumped in front of it is not in dispute, the conclusion is irresistible that, the accident is a self made one, occurred solely due to the rash and negligent riding of the motor cycle by the deceased himself, who stepped into the shoes of the owner of that vehicle. 11. In Oriental Insurance Co. Ltd. v. Jhuma Saha ( 2007 (9) SCC 263 ) the Apex Court was dealing with a case in which the deceased was the owner of the insured Maruti van. While he was driving the said vehicle it dashed against a tree on the road side, when he attempted to save a goat which ran across the road. The deceased suffered injuries, who later on succumbed to injuries. The Apex Court noticed that, for the reasons stated in the claim petition or otherwise, the deceased himself was to be blamed for the accident. The accident did not involve motor vehicle other than the one which the deceased was driving. Therefore, the question before the Apex Court was as to the maintainability of the claim made under Section 166 of the Act. In that context, the Apex Court held that, the liability of the insurer is to the extent of indemnification of the insured against the injured person, a third person, or in respect of damages to property. Thus, if the insured cannot be fastened with any liability under the provisions of the Act, the question of the insurer being liable to indemnify the insured, does not arise. 12. In Jhuma Saha's case (supra), the Apex Court relied on its earlier judgment in Dhanraj v. New India Assurance Co. Thus, if the insured cannot be fastened with any liability under the provisions of the Act, the question of the insurer being liable to indemnify the insured, does not arise. 12. In Jhuma Saha's case (supra), the Apex Court relied on its earlier judgment in Dhanraj v. New India Assurance Co. Ltd. ( 2004 (8) SCC 553 ) in which it was held that, 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 authorised 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 of the Act does not require an Insurance Company to assume risk for death or bodily injury to the owner of the vehicle. 13. In the instant case, the accident occurred as the deceased lost control of the motor cycle when a dog jumped in front of it and the pleading and materials on record make it explicitly clear that, the accident is a self made one, occurred solely due to the rash and negligent riding of the motor cycle by the deceased himself, who stepped into the shoes of the owner of that vehicle. In that view of the matter, the appellants herein cannot maintain a claim before the Tribunal under Section 166 of the Act, since a claim under that Section is based on fault liability principle. 14. The learned counsel would contend that the Tribunal went wrong in not awarding compensation under Section 140 of the Act. Section 140 of the Act deals with liability to pay compensation in certain cases on the principle of no fault. As per sub-section (1) of Section 140, where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of that Section. Sub-section (4) of Section 140 of the Act provides that, a claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement. Sub-section (5) of Section 140 provides further that, notwithstanding anything contained in sub-section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force. Therefore, the liability to pay compensation under Section 140 of the Act, on the principle of no fault liability, is on the owner of the offending vehicle, i.e., the insured, which liability has to be indemnified by the insurer under a contract of insurance. However, the liability of the insurer arises only when the liability of the insured has been upheld for the purpose of indemnifying the insured under the contract of insurance. 15. In National Insurance Co. Ltd. v. Sasilatha ( 1999 (3) KLT 519 ) a Division Bench of this Court, after referring to the judgment of the Apex Court in Oriental Insurance Co. Ltd. v. Sunitha Rathi ( 1998 (1) SCC 365 ), held that the liability of the insurer arises only when the liability of the insured has been upheld for the purpose of indemnifying the insured under the contract of insurance. It is therefore clear that if the insured is not held liable, insurer cannot be directed to indemnify the insured. The only liability for the insurer is to indemnify the insured and not to pay any compensation for the alleged bodily injuries sustained by her. A reading of Section 140 would make it clear that no fault liability is cast on the owner of the vehicle and not directly on the insurer. If the owner of the vehicle is found liable under Section 140, naturally, the liability of the insured also would arise. 16. A reading of Section 140 would make it clear that no fault liability is cast on the owner of the vehicle and not directly on the insurer. If the owner of the vehicle is found liable under Section 140, naturally, the liability of the insured also would arise. 16. In Sasilatha's case (supra) the Division Bench of this Court was dealing with a case in which the owner of a jeep herself has come forward for compensation under Section 140 of the Act against the insurer of her own vehicle which was held to be the offending vehicle. On the basis of evidence, the Tribunal came to the conclusion that there was no negligence on the part of the Driver of the KSRTC bus, but, on the other hand the accident happened only due to the negligence on the part of the driver of the Jeep. The Division Bench, after referring to the judgment of the Apex Court in Sunitha Rathi's case (supra), in which it was held that the liability of the insurer arises only when the liability of the insured has been upheld for the purpose of indemnifying the insured under the contract of insurance, held that such a claim made by the owner of the vehicle cannot be maintained under Section 140 of the Act. 17. In Yallwwa v. National Insurance Co. Ltd. ( 2007 (6) SCC 657 ) the question that came up for consideration before the Apex Court was as to whether an order passed by the Tribunal under Section 140 of the Act is an appealable one. In that context, the Apex Court held that Section 140 of the Act, which provides for no fault liability, uses the words 'accident arising out of the use of a motor vehicle', 'the owner of the vehicle' and when more than one vehicles are involved, 'the owners of the vehicles' shall jointly and severally be liable to pay compensation. The said provision, therefore makes the owners of the vehicle liable, but not the insurer per se. 18. As held by the Apex Court in New India Assurance Company Ltd. v. Sadanand Mukhi ( 2009 (2) SCC 417 ) by taking an 'act policy' the owner of the vehicle fulfills his statutory obligation as contained in Section 147 of the Act. 18. As held by the Apex Court in New India Assurance Company Ltd. v. Sadanand Mukhi ( 2009 (2) SCC 417 ) by taking an 'act policy' the owner of the vehicle fulfills his statutory obligation as contained in Section 147 of the Act. If the liability of the insurer is contractual, its liability extends to the risk covered by the policy of insurance. If additional risks are sought to be covered, additional premium has to be paid. 19. In view of the law laid down in the decisions referred to supra, Section 140 of the Act makes the owner of the vehicle liable but not the insurer per se. The liability of the insurer under Section 140 of the Act therefore arises only when the liability of the insured has been upheld for the purpose of indemnifying the insured under the contract of insurance. When the liability of the insurer is to indemnify the insured and not to pay compensation for the bodily injury or death of the insured, the claim made by the insured for that purpose cannot be sustained under Section 140 of the Act. If that be so, such a claim made by a person who borrowed the motor vehicle from its real owner, who was authorised to drive the said vehicle by its owner, who steps into the shoes of the owner of that vehicle (as held by the Apex Court in Rajni Devi's case (supra)) cannot be entertained under Section 140 of the Act, so also a claim made by his legal heirs. In that view of the matter, we hold that the Tribunal committed no error in not entertaining the claim under Section 140 of the Act as well. 20. The learned counsel for the appellant would contend that, the findings of the Tribunal that the claimants failed to prove that the deceased was the owner of the motor cycle at the time of accident and that, Ext.B1 policy covers only owner cum rider of the motor cycle and hence the claimants are not entitled for compensation, are erroneous. 21. As we have already noticed, admittedly the deceased was not the owner of the motor cycle in question. In Ext.B1 insurance certificate the 1st respondent is shown as the owner of that vehicle and the claimants themselves have arrayed him in the claim petition as the owner. 21. As we have already noticed, admittedly the deceased was not the owner of the motor cycle in question. In Ext.B1 insurance certificate the 1st respondent is shown as the owner of that vehicle and the claimants themselves have arrayed him in the claim petition as the owner. Further, as noticed by the Tribunal, the claimants have not chosen to produce the registration certificate of the motor cycle in order to prove its ownership at the time of accident. 22. In Oriental Insurance Co. Ltd. v. Jhuma Saha ( 2007 (9) SCC 263 ) the Apex Court, relying on its earlier judgment in Dhanraj's case (supra) held that, Section 147(1)(b) of the Act in no uncertain terms covers only the risk of a third party. If that be so, unless additional premium was paid in respect of the entire risk of death or bodily injury of the owner of the vehicle, the legal heirs of the deceased insured who died in an accident involving no motor vehicle other than the one which he was driving, are not entitled to maintain a claim petition under Section 166 of the Act. 23. In Oriental Insurance Co. Ltd. v. Sudhakaran K.V. ( 2008 (7) SCC 428 ) the Apex Court held that, a distinction has to be made between a contract of insurance in regard to a third party and the owner or driver of the vehicle. In terms of Section 147 of the Act a contract of insurance must be taken by the owner of the vehicle only in regard to reimbursement of the claim to a third party. When, however, an owner of a vehicle intends to cover himself from other risks, it is permissible to enter into a contract of insurance in which event the insurer would be bound to reimburse the owner of the vehicle strictly in terms that contract. The liability of the insurer to reimburse the owner in respect of a claim made by the third party, thus, is statutory whereas other claims are not. 24. In New India Assurance Company Ltd. v. Sadanand Mukhi ( 2009 (2) SCC 417 ) the Apex Court was dealing with a case in which the owner of the motor cycle got the said vehicle insured with the appellant Insurance Company. On 8.9.2000, the son of the insured while riding the motor cycle met with an accident and he died. In New India Assurance Company Ltd. v. Sadanand Mukhi ( 2009 (2) SCC 417 ) the Apex Court was dealing with a case in which the owner of the motor cycle got the said vehicle insured with the appellant Insurance Company. On 8.9.2000, the son of the insured while riding the motor cycle met with an accident and he died. The accident took place as a stray dog came in front of the vehicle. The appellant insurer contended that the rider of the motor cycle is not a third party. Further, the accident occurred while the deceased himself was riding the motor cycle in uncontrollable speed and in a rash and negligent manner, which was the cause of accident. Therefore, in absence of negligence on the part of the owner of the vehicle, the claimants cannot seek compensation. 25. In Sadanand Mukhi's case (supra), after considering the requirements of policies and limits of liability under Section 147 of the Act, the Apex Court held that, the said provision provides for two types of insurance; one statutory in nature and the other contractual in nature. Whereas the Insurance Company is bound to compensate the owner or the driver of the motor vehicle in case any person dies or suffers injury as a result of an accident; in case the owner of the vehicle or others are proposed to be covered, additional premium is required to be paid for covering their life and property. Therefore, by taking an 'act policy', the owner of a vehicle fulfils his statutory obligation as ntained in Section 147 of the Act. If the liability of the insurer is contractual, its liability extends to the risk covered by the policy of insurance. If additional risks are sought to be covered, additional premium has to be paid. 26. Going by the General Regulations under the Indian Motor Tariff framed by the Tariff Advisory Committee, in accordance with the provisions of Part II of the Insurance Act, 1938, a 'Liability Only Policy' covers third-party liability for bodily injury and/or death and property damage. It also covers Personal Accident Cover for owner-driver (not applicable to vehicles covered under Section E, F and G of Tariff for Commercial Vehicles). A 'Package Policy', in addition to the liability as above, covers loss or damage to the vehicle insured. It also covers Personal Accident Cover for owner-driver (not applicable to vehicles covered under Section E, F and G of Tariff for Commercial Vehicles). A 'Package Policy', in addition to the liability as above, covers loss or damage to the vehicle insured. The owner of insured vehicle holding an 'effective' driving license is termed as owner-driver for this purpose and the Personal Accident Cover is provided to the owner-driver whilst driving the vehicle including mounting into/dismounting from or traveling in the insured vehicle as a co-driver. Only the registered owner in person is entitled to the compulsory cover where he/she holds an effective driving license. Hence compulsory Personal Accident Cover cannot be granted where a vehicle is owned by a company, a partnership firm or a similar body corporate or where the owner-driver does not hold an effective driving license. The annual premium payable in this regard, in respect of motorised two wheelers is 50/- to cover a Capital Sum Insured (CSI) to the tune of 1,00,000/-. 27. In the instant case, as we have already noticed, the appellants have no case that the deceased was the registered owner of the motor cycle in question. In Ext.B1 insurance certificate the 1st respondent is shown as the owner of that vehicle and the claimants themselves have arrayed him in the claim petition as the owner of that vehicle. Therefore, merely by stepping into the shoes of the registered owner of the motor cycle, while using the said vehicle with his consent, the deceased cannot be termed as 'owner-driver' for the purpose of Personal Accident Cover. In that view of the matter, we find no grounds to interfere with the finding of the Tribunal that the appellants are not entitled for compensation under the Personal Accident Cover provided in Ext.B1 insurance policy. 28. The learned counsel for the appellant would then contend that, the claim petition was one filed under Section 163A of the Act and as such negligence if any on the part of the deceased will in no manner disentitle the appellants from claiming compensation from the owner and insurer of the motor cycle. However, the Tribunal Proceeded with the claim petition as if it is one filed under Section 166 of the Act. However, the Tribunal Proceeded with the claim petition as if it is one filed under Section 166 of the Act. We notice that, in Ground C of the memorandum of appeal the appellant would contend that the claim was one made under Section 163A of the Act. On the other hand, in Ground D it is contended that the claim was one made under Section 166 and 140 of the Act. 29. The intention of the legislature while inserting Section 163A of the Act, vide the Motor Vehicles (Amendment) Act, 1994, was only to ensure that a claimant who opts for the special provisions as to payment of compensation on structured formula basis need not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or any other person. Section 163A of the Act was never intended to provide relief to those who suffered in a road accident only on account of their own rash and negligent act, not because of any rash and negligent act of another person in using a motor vehicle. 30. In Ningamma v. United India Insurance Co. Ltd. ( 2009 (13) SCC 710 ) the Apex Court, after referring to Para.42 of the Three-Judge Bench decision in Deepal Girishbhai Soni v. United India Insurance Company Ltd. ( 2004 (5) SCC 385 ) held that, the Parliament by introducing Section 163A in the Act provided for payment of compensation on structured formula basis by mandating that the owner of a motor vehicle or the authorised insurer would be liable to pay compensation, as indicated in the Second Schedule in the case of death or permanent disablement due to accident arising out of the use of the motor vehicle, to the legal heirs or the victim, as the case may be, in a claim made under sub-section (1) of Section 163A of the Act. After referring to the judgment of a Two-Judge Bench in Oriental Insurance Company Ltd. v. Rajni Devi ( 2008 (5) SCC 736 ) the Apex Court held further that, Section 163A of the Act cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved. After referring to the judgment of a Two-Judge Bench in Oriental Insurance Company Ltd. v. Rajni Devi ( 2008 (5) SCC 736 ) the Apex Court held further that, Section 163A of the Act cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved. The liability under Section 163A of the Act is on the owner of the vehicle. So a person cannot be both, a claimant as also a recipient, with respect to the claim. A person who borrowed motor vehicle from its real owner, who was authorized to drive the said vehicle by its owner, would step into the shoes of the owner of that vehicle. Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under Section 163A of the Act. 31. In National Insurance Company Ltd. v. Sinitha ( 2012 (2) SCC 356 ) the main question that came up for consideration before the Apex Court was whether a claim for compensation made under Section 163A of the Act, can be defeated either by the owner or by the Insurance Company, by pleading and establishing, that the accident in question was based on the 'negligence' of the offending vehicle. After analyzing the provisions under Sections 140 and 163A of the Act, the Apex Court held that, sub-section (2) of Section 163A is in pari material with sub-section (3) of Section 140 and it is not essential for a claimant seeking compensation, to 'plead or establish' that the accident out of which the claim arises suffers from 'wrongful act' or 'neglect' or 'default' of the offending vehicle. Under sub-section (4) of Section 140, there is a specific bar, whereby the concerned party (owner or Insurance Company) is precluded from defeating a claim raised under Section 140 of the Act, by 'pleading and establishing' 'wrongful act', 'neglect' or 'default', there is no such or similar prohibiting clause in Section 163A of the Act. Under sub-section (4) of Section 140, there is a specific bar, whereby the concerned party (owner or Insurance Company) is precluded from defeating a claim raised under Section 140 of the Act, by 'pleading and establishing' 'wrongful act', 'neglect' or 'default', there is no such or similar prohibiting clause in Section 163A of the Act. The additional negative bar, precluding the defence from defeating a claim for reasons of a 'fault' ('wrongful act', 'neglect' or 'default'), as has been expressly incorporated in Section 140 of the Act (through sub-section (4) thereof), having not been embodied in Section 163A of the Act, has to have a bearing on the interpretation of Section 163A of the Act. The legislature designedly included the negative clause through sub-section (4) in Section 140 of the Act, yet consciously did not include the same in the scheme of Section 163A of the Act. The presence of sub-section (4) in Section 140 of the Act and the absence of a similar provision in Section 163A, leaves no room for any doubt that the only object of the Legislature in doing so was that the legislature desired to afford liberty to the defence to defeat a claim for compensation raised under Section 163A of the Act, by pleading and establishing 'wrongful act', 'neglect' or 'default'. A claim which can be defeated on the basis of any of the aforesaid considerations is regulated under the 'fault' liability principle. Therefore, the Apex Court concluded, that Section 163A of the Act is founded on the 'fault' liability principle. 32. The principle laid down by the Apex Court in Sinitha's case (supra) was followed by a Full Bench of this Court in Oriental Insurance Co. Ltd. v. Joseph V.V. @ Johny ( 2012 (2) KLT 132 ) to which, one among us [PRRM(J)] is also a member. It was a case in which the deceased was the rider of the motorcycle at the time of accident, as permitted by the owner of that motorcycle which was covered by an 'Act only' policy, and the Tribunal found the cause for the accident as the negligence of the rider himself. It was a case in which the deceased was the rider of the motorcycle at the time of accident, as permitted by the owner of that motorcycle which was covered by an 'Act only' policy, and the Tribunal found the cause for the accident as the negligence of the rider himself. After referring to various judgments of the Apex Court and also the judgment of another Full Bench of this Court in National Insurance Company Ltd. v. V. Malathi C. Salian ( 2003 (3) KLT 460 ) the Full Bench held that in a case where, though a claim is raised under Section 163A of the Act, once the insurer or the insured comes up with the defence of absolving the liability to pay compensation on the ground that the deceased was responsible for the death or injury on account of either wrongful act, negligent act or default, then, the liability of the insurer can be absolved, if such plea or defence is established. After referring to the judgment of the Apex Court in Rajni Devi's case (supra) the Full Bench observed that, if the owner of the vehicle insures the vehicle by paying additional premium, as personal accident coverage, then by virtue of the terms of contract of insurance, the insurer would be liable to pay compensation depending upon the limits of liability. 33. In New India Assurance Co. Ltd. v. Rajiv (2016 (1) KHC 327), following the judgment of the Apex Court in Sinitha's case (supra) and that of the Full Bench of this Court in Joseph's case (supra) we have held that, in view of conspicuous absence of the provisions like sub-section (4) of Section 140 in Section 163A of the Act, it is possible for the Insurance Company to plead or establish that negligence was on the part of the victim. That was a case in which the deceased was driving a car owned by her wife. When the car reached the place of occurrence, the deceased lost control over the vehicle and it dashed against a culvert on the side of the road, resulting in serious injuries leading to his death. The police has also registered a case against the deceased attributing negligence. The grown-up children of the deceased filed a claim petition under Section 163A of the Act claiming compensation, arraying their mother/the owner of the car as one of the respondents. The police has also registered a case against the deceased attributing negligence. The grown-up children of the deceased filed a claim petition under Section 163A of the Act claiming compensation, arraying their mother/the owner of the car as one of the respondents. Since the factual sequence itself is enough to hold that, no other party/circumstance is involved with regard to the cause of accident, this Court held that the award passed by the Tribunal fixing liability upon the appellant insurer is not correct or sustainable. 34. It is pertinent to note that, the scope of Section 163A of the Act and the object behind the said provision introduced by Act 54 of 1994 came up for consideration before a Division Bench of the Karnataka High Court in Appaji v. M. Krishna ( 2004 ACJ 1289 ). His Lordship Justice T.S. Thakur (as he then was) rendered the said judgment on 17.12.2003 (prior to the Three-Judge Bench decision in Deepal Girishbhai Soni's case (supra) dated 18.3.2004) after examining in detail the provisions of Section 163A of the Act as well as the objects and reasons which led to the introduction of such a provision in the Act, by Act 54 of 1994. In the said case, the Division Bench was dealing with a case were the deceased Arun Kumar was riding a motorcycle and the accident occurred while the deceased was trying to avoid a cyclist who suddenly emerged on the road. The Division Bench held that, Section 163A of the Act was never intended to provide relief to those who suffered in a road accident not because of the negligence of another person making use of a motor vehicle, but only on account of their own rash, negligent or imprudent act resulting in death or personal injury to them. The objects and reasons underlying the introduction of the provision also envisaged adequate compensation to victims of road accidents without going into what was described as long drawn procedure. There is nothing to suggest that Section 163A was intended to be available even in a situation where the accident in question had caused death or physical injury to none except the person who was rash and negligent in using the motor vehicle. There is nothing to suggest that Section 163A was intended to be available even in a situation where the accident in question had caused death or physical injury to none except the person who was rash and negligent in using the motor vehicle. The Division Bench held further that, the right to receive compensation under Section 163A of the Act presupposes that the person who makes a claim is a victim or the legal heirs of a victim. One who is the victim of his own actions of rash or negligent driving cannot invoke Section 163A for making a claim. The concern of the Legislature and the jurists is understandably for the victim in contradistinction to the victimiser or one who falls a victim to his own action. The Parliament did not intend to provide for compensation to the person responsible for the accident on structured formula basis in such cases. The Division Bench held in categorical terms that, the `non obstante' clause in Section 163A simply dispenses with proof of fault by the claimants against the driver or the owner of the vehicle involved in the accident. The claimant under Section 163A, therefore, need not prove that the driver or the owner of the vehicle was at fault in the sense that the accident had occurred on account of any negligence or rashness on their part. That does not, however, mean that claimant can maintain a claim on the basis of his own fault or negligence and argue that even when he himself may have caused the accident on account of his own rash and negligent driving, he can nevertheless made the insurance company pay for the same. Inasmuch as Section 163A of the Act dispenses with proof of fault, it does so only where the claimant is not solely responsible for the accident. The above view expressed by the Division Bench of the Karnataka High Court is also in consonance with the view expressed by the Apex Court in Ningamma's case (supra). 35. In United India Insurance Co. The above view expressed by the Division Bench of the Karnataka High Court is also in consonance with the view expressed by the Apex Court in Ningamma's case (supra). 35. In United India Insurance Co. v. Sunil Kumar ( 2014 (1) SCC 680 ) a Two-Judge Bench of the Apex Court expressed its difficulty to accept the reasoning by the Two-Judge Bench in Sinitha's case (supra), stating that the principle laid down in Hansrajbhai Kodala's case (supra), which was accepted by the Three-Judge Bench in Deepal Girishbhai Soni's case (supra) has not been properly appreciated or applied in Sinitha's case (supra). Consequently, the matter was ordered to be placed before the learned Chief Justice of India for referring the matter to a larger Bench for a correct interpretation of the scope of Section 163A of the Act. 36. Merely for the reason that the decision rendered by the earlier Bench came to be doubted by the subsequent Co-ordinate Bench, by passing an order of reference to place it before a Larger Bench, it cannot be said that the same will amount to stay of the earlier verdict, nor does it mean that the earlier verdict will be inoperative. The law declared by the Apex Court is the law of the land by virtue of Article 141 of the Constitution of India. Unless and until it is varied, the earlier decision remains intact and the reference made by the subsequent Co-ordinate Bench cannot have any adverse consequence in so far as the declaration of the law is concerned. 37. As such, if the accident involved is a self made one, there cannot be any statutory coverage of liability on the shoulders of the Insurance Company to pay compensation to the appellants/claimant, on account of the death of the deceased in the accident, who stepped into the shoes of the owner of that vehicle, in view of the law laid down by the Apex Court in Sinitha's case, Ningamma's case and Rajni Devi's case referred to supra. 38. 38. As we have noticed hereinbefore at Para.34, though the learned counsel for the appellant would contend that the claim filed by the appellants was one under Section 163A of the Act, there is inconsistency in the grounds raised in the memorandum of appeal, especially, grounds C and D. On a query made by us, the Registry of this Court has been informed by the Tribunal that the claim petition filed by the appellant was one under Sections 166 and 140 of the Act and not one filed under Section 163A of the Act. In the result, the appeal fails and the same is dismissed. No order as to costs.