Appukuttan and Leela v. K. Viswambharan and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE SMT. JUSTICE P.V.ASHA TUESDAY, THE 23RD DAY OF SEPTEMBER 2014/1ST ASWINA, 1936 MACA.No. 425 of 2011 (A) ------------------------- AGAINST THE AWARD IN OPMV 1460/2004 of M.A.C.T., NEYYATTINKARA DATED 12-11-2010 APPELLANT(S)/APPLICANTS: ------------------------ 1. APPUKUTTAN, PLAVILA PUTHEN VEEDU, CHANI, KANJIRAMKULAM P.O. NEYYATTINKARA. 2. LEELA, W/O.APPUKUTTAN, PLAVILA PUTHEN VEEDU, CHANI, KANJIRAMKULAM P.O. NEYYATTINKARA. BY ADVS.SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENT(S): -------------1. K.VISWAMBHARAN, CHALARATHALA VEEDU, POOTHENCODE, NELLIMOODU P.O. NEYYATTINKARA-695 524. 2. SURESH, S/O.GOVINDAN NADAR, MULAYAMTHANNI, VADAKKARIKATHU PUTHEN VEEDU NELLIMOOD P.O., NEYYATTINKARA-695 524. 3. THE MANAGER, NEW INDIA ASSURANCE CO.LTD., SWADESHABHIMANI COMPLEX NEAR BUS STAND JUNCTION, NEYYATTINKARA POST-695 121. 4. THE DIVISIONAL MANAGER, ORIENTAL INSURANCE CO.LTD., ROHINI BUILDING THAKARAPARAMBU ROAD, PAZHAVANGADI POST, THIRUVANANTHAPURAM-695 008. R,R1 BY ADV. SRI.D.KISHORE R,R3 BY ADV. SRI.A.C.DEVY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **T.R.RAMACHANDRAN NAIR & P.V ASHA, JJ. ----------------------------------------------------M.A.C.A No.425 of 2011-A ---------------------------------------------------Dated this the 23[rd] day of September, 2014** ## **J U D G M E N T** ## Ramachandran Nair, J. The appellants are the parents of deceased Biju who died in a motor vehicle accident, which took place on 13.12.03. The application for compensation, though filed under Section 163A of the Motor Vehicles Act, was not allowed by the Tribunal and hence the appeal. 2. At the time of the accident the deceased was riding a motorcycle bearing Registration No.KL-01-Z-8636. 3. The learned counsel for the appellants submitted that the Tribunal went wrong in finding that the deceased had contributed to the cause of the accident. It is submitted that even though the 4[th] respondent, who is the insurer of the vehicle driven by the deceased, was impleaded, as far as the finding that the said respondent is not liable for compensation is concerned, the appellants are not challenging. But as far as the finding by the Tribunal that the 3[rd] respondent has also to be absolved from 2 **M.A.C.A No.425 of 2011-A** liability for paymewnt of compensation on the ground that the deceased had caused the accident is concerned, the learned counsel submitted that the same cannot be supported in the light of the decision of this Court in **Oriental Insurance Co.Ltd. v. Joseph** [2012(2) KLT 132 (F.B.), that of a Division Bench of this Court in **United India Insurance Co. Ltd. v. Vijayarajan** [2009(3) KHC158 (DB)], and that of the Apex Court in **Pepsu RTC v. National Insurance Co.** [(2013) 10 SCC 217] as well as another Division Bench decision of this Court in **Oriental Insurance Co. Ltd. v. Nirarudeen** [2008(2) KLT 291]. 4. The learned counsel for the 3[rd] respondent Insurance Company submitted that for adducing evidence to it on this aspect the matter may be remanded to the Tribunal. 5. Sri R.T.Pradeep, the learned counsel for the appellants contended that since the contention of the insurance company is that the accident occurred due to negligence of the deceased Biju, the onus to prove the same is heavily on the insurance company, which has not been discharged at all. It is submitted that the Tribunal heavily relied on Ext.A1 final report in the crime registered and the learned counsel submitted that since it is a claim under Section 163A, the contention whether **M.A.C.A No.425 of 2011-A** 3 there is any wrongful act, negligence or default on the part of the deceased is a matter which should have been proved in evidence by the Insurance Company and since no attempt was made in this case to adduce any evidence by the Insurance Company, the application ought to have been allowed. 6. We find that the Full Bench in para.7 and 8 of the decision reported in **Oriental Insurance Co.Ltd. v. Joseph** (supra) has discussed the difference between provisions namely Section 140 of the Motor Vehicles Act, 1939 as well as Section 163 of the Motor Vehicles Act, 1988. There the Full Bench was of the view that to avoid the liability of payment of compensation, insurer can take the defence by pleading any of the faults i.e., `wrongful act', neglect' of `default'. That was a case where the claimants had arrayed only the insurance company of the vehicle which was driven by the deceased on the fateful day. It was held that, if the plea that the deceased was negligent is established, the liability of the insurer can be absolved. Significantly the Full Bench has stated as follows in para.8: “8. ........................... ..................... ...................... .................................. ............................. ....................... ........... ........... ............ If the insured and othe insurer of other vehicle were to be party to the proeedings, then automatically the deceased and his legal representatives, 4 **M.A.C.A No.425 of 2011-A** who are the claimants could be termed as third parties so far as the other vehicle is concerned.” This portion of the dictum was relied upon heavily by Sri R.T.Pradeep to point out that the same can apply to the facts of this case since the claimants have got a case that the motor vehicle driven by the 1[st] respondent hit a cyclist and both the vehicles collided and the vehicle driven by the deceased Baiju which was coming from behind it ran into it and Baiju sustained injuries and consequently he lost his life. 7. A reference to Ext.A1 will show that the same while describing the accident it is stated that the vehicle driven by the deceased had caused the accident. But in a matter like this, since the insurance company, in para.5 of the written statement stated that the accident occurred due to the sole rashness, negligence and fault of the deceased Baiju, it cannot be disputed that the burden is heavily on them. The finding in para.17 of the judgment by the Tribunal, that the 1[st] respondent's vehicle had only a passive role, is entered, without any evidence on the part of insurer. No witnesses or respondent No.1 was cited or examined. 8. When we refer to the pleadings of the Insurance **M.A.C.A No.425 of 2011-A** 5 company in para.9 of the written statement, what they have alleged is that the accident occurred in a different manner. Going by the same the averment is that motorcycle driven by the decased hit on the back of the motorcycle bearng Reg.No.KL01/L-8611 which was being driven by the 1[st] respondent Viswambharan. In para.4 of the written statement the accident is described as follows: “4...... the Motor Cycles KL-01/L-8611 and KL-01/Z8636 were ridden from north to south along NellimooduKanjiramkulam public road. The Motor Cycle KL-01/Z8636 was being ridden from behind the Motor Cycle KL01/L-8611. First the Motor Cycle KL-01/Z-8636 ridden by Baiju, hit on the back side of the Motor Cycle KL01/L-611 ridden by the first respondent Viswambharan. Then this Motor Cycle KL-01/L-8611 went out of control and hit a bicycle, pedalled by Shaiju from the opposite direction So it is clear that the offending Motor Cycle is KL-01/Z-8636 rideen by the deceased Baiju, against whom the police filed charge sheet first. .......” As far as the said version about the accident is concerned, no evidence was adduced before the Tribunal. Therefore, the said version of the Insurance Company stands not proved. If that be so, according to us, it cannot be said that the Insurance 6 ## **M.A.C.A No.425 of 2011-A** Company has been succesful to avoid liability for payment of compensation. 9. In this context we refer to a decision of a Division Bench of this Court in **Oriental Insurance Co. Ltd. v. Nirarudeen** [2008(2) KLT 291]. That was a case where the Insurance Company alleged that there is absence of driving licence which is the cause of the accident. Significantly the Bench has stated thus in page 292: “No evidence was adduced by the Insurance Company to show that absence of driving licence is the cause of accident. Except relying on the police records, there is no evidence to show that even though such a charge was made that he was convicted for the offence. Burden is on the Insurance Company to prove that there is violation of the policy of insurance.” 10. If we consider the stand taken by the Insurance Company which is already referred to by us earlier, their case appears to be that the vehicle driven by the deceased hit against the motorcycle driven by the 1[st] respondent first triggering the accident which is contrary to the details of the accident contained in Ext.A1. Therefore, as far as the application under Section 163 A is concerned, we find that the claimants are **M.A.C.A No.425 of 2011-A** 7 entitled to succeed for want of evidence on the part of the Insurance Company. 11. What we find from the order of the Tribunal is that the Tribunal in para.17 was of the view that the applicants have made a clean shift as to the facts of the case. Evidently after the accident occurred initially an attempt was made to show the deceased as offender and the Police tried to put the obligation on him when the investigation was conducted. Thereafter on a complaint made by the 1[st] appellant, the father of the deceased, a further investigation was made and thereafter the charge was laid as per Ext.A1. The deceased was not arrayed as an accused and the 1[st] respondent alone was charge sheeted. The Tribunal finally concluded that the accident had not occurred due to the involvement of the motorvehicle namely the vehicle driven by the 1[st] respondent. In the absence of any evidence on the part of the 1[st] respondent or by the Insurance Company, we find tht the said conclusion is really unsupportable. Therefore we reverse the finding rendered by the Tribunal on that score. 12. The monthly income claimed is Rs.3,000/-. It is stated that the deceased was working as a Marble Contractor. He was aged 24 years at the time of the accident. Going by Section 8 **M.A.C.A No.425 of 2011-A** 163A, the maximum annual income that can be taken for consideration is only Rs.40,000/-. Therefore in the absence of any contra evidence we fix the monthly income as Rs.3,000/making the annual income to Rs.36,000/- from out of which 1/3[rd] will have to be deducted towards the personal expenses. If that be so, the annual income of the deceased which will be contributed to the appellant's family will be Rs.24,000/-. Since he was in the age group of 24, going by **Sarla Verma (Smt) &** **Ors. v. Delhi Transport Corporation & Anr.** [(2009) 6 SCC 121], the multiplier will be 18. Along with it going by the second schedule, an amount of Rs.2,000/- is liable to be granted towards funeral expenses, Rs.5,000/- towards loss of consortium and Rs.2,500/- towards loss of estate. Even though actual bills were not produced to prove medical expenses, we fix a notional amount of Rs.2,500/- towards medical expenses. Thus the total compensation would be Rs.4,43,500/- (Rupees Four lakhs forty three thousand and five hundred only) which will carry interest @ 9% per annum from the date of petition till realisation. There will be a direction to the 3[rd] respondent to deposit the amount within three months and on such deposit, we allow the appellants to withdraw the amount also since the accident **M.A.C.A No.425 of 2011-A** 9 occured in the year 2003. The appeal is allowed to the above extent. No costs. Sd/- _**T.R.RAMACHANDRAN NAIR Judge**_ Sd/- _**P.V.ASHA Judge**_ rtr/ /true copy/ P.S to Judge