Chacko Philipose and others v Viswambhara Das, Saji, United India Insurance Co., P Lekshmi and United India Insurance Co. Kochi

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` TUESDAY, THE 11[TH] DAY OF APRIL 2023 / 21ST CHAITHRA, 1945 ``` ## **`MACA NO. 182 OF 2014`** ``` AGAINST THE AWARD DATED 21.08.2013 IN OP(MV)NO. 78/2007 OF MOTOR ACCIDENTS ``` ``` CLAIMS TRIBUNAL, MUVATTUPUZHA ``` ## **`APPELLANT/PETITIONERS:`** ``` 1CHACKO PHILIPOSE,AGED 62 YEARS (FATHER OF THE DECEASED) S/O.PHILIPOSE, PUTHENPURACKAL HOUSE, MAMALASSERY KARA, RAMAMANGALAM VILLAGE. *(DECEASED) 2*SARAMMA, AGED 56 YEARS, (MOTHER OF THE DECEASED) W/O.CHACKO PHILIPOSE, PUTHENPURACKAL HOUSE, MAMALASSERY KARA, RAMAMANGALAM VILLAGE. * LR TO APPELLANT NO.1 3*BEENA,AGED31YEARS,(SISTEROFTHEDECEASED) D/O.CHACKO PHILIPOSE, PUTHENPURACKAL HOUSE, MAMALASSERY KARA, RAMAMANGALAMVILLAGE.*(LRTOAPPELLANTNO.1) * THE DEATH OF THE 1ST APPELLANT IS RECORDED AND THE APPELLANTS 2 AND 3 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF THE DECEASED FIRST APPELLANT, AS PER ORDER DATED 19/01/2022 IN MEMO DATED 10/01/2020 IN MACA 182/2014. BY ADV.SRI.JOY C. PAUL ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1VISWAMBARA DAS,S/O.RAMAN PILLA, KARTHIKA, MARAVANTHURUTHU KARA, KULASHEKHARAMANGALAM, VAIKOM, PIN-686141. ``` - `2 SAJI,S/O.KUMARAPILLA, CHERIL HOUSE (DARSANA), KANJIRAMATTOM KARA, AMBALLOOR VILLAGE, PIN-682315.` - `3 UNITED INDIA INSURANCE COMPANY THRIPUITHURA BRANCH, PIN-682301.` - `4 P.LEKSHMI W/O.JANARDHANA PAI, KAILAS-39895, CARRIER ROAD, KOCHI-682035.` - `5 UNITED INDIA INSURANCE CO. KOCHI, PIN-682035. R1 AND R2 BY ADVS.SRI.M.R. NANDAKUMAR,` ``` SRI.ARJUN ANIL ``` ``` SMT.MAYIKA SUNDAR(K/000929/2020) R3 AND R5 BY ADV.SRI.N.S.MOHAMMED USMAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11.04.2023, THE ``` ``` COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No.182 of 2014 -:2:- ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A No. 182 of 2014 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11[th] day of April, 2023 ## **JUDGMENT** This appeal is directed against an award passed by Motor Accidents Claims Tribunal, Muvattupuzha (for short ‘the Tribunal’) on 21.08.2013 in OP(MV) No. 78/2007. By the impugned award, the Tribunal has dismissed the Original Petition seeking compensation filed by the legal representatives of one Mr.Bijo Chacko who died in a motor accident occurred at about 9.00 a.m. on 06.08.2006. 2. As per the averments in the Original Petition, Mr.Bijo Chacko who was riding the Motorcycle bearing Registration No.KL-7/K 9339 from north to south through Talayolaparambu-Ernakulam public road was hit MACA No.182 of 2014 -:3:- by a Maruti Car bearing Registration No.KL-5/L 1733 driven by its driver in a rash and negligent manner and also in excessive speed at Varikkamkunnu and thereby he sustained fatal injuries and succumbed to those later. Alleging that the motor accident was occurred due to the rash and negligent driving by the 2[nd] respondent, the Original Petition seeking compensation was filed under Section 163A of Motor Vehicles Act, 1988 seeking for compensation. The registered owner, the driver and the insurer of the offending Car were arrayed as respondents 1 to 3 in the Original Petition on hand and the registered owner and the insurer of the Motorcycle were arrayed as respondents 4 and 5 therein. `5,00,000/- was also claimed as compensation. 1[st] and 2[nd] respondents were served with summons from the Tribunal but they did not turn up to contest the Original MACA No.182 of 2014 -:4:- Petition. Accordingly they were declared as _ex parte_ by the Tribunal. 3. The 3[rd] and 5[th] respondents who are the insurers of the Car as well as the Motorcycle filed written statement admitting issuance of a valid policy for the vehicles covering the date of accident. It was contended that the motor accident was caused not due to rash and negligent driving of the Car by the 2[nd] respondent, but due to riding of the Motorcycle by the victim without holding a valid and effective driving licence, that the Criminal Case with reference to the motor accident in question was registered by the petitioners by using undue influence on the police, that the driver of the Car was falsely chargesheeted by the police and for the reasons, petitioners are not entitled to get compensation from the respondents. MACA No.182 of 2014 -:5:- 4. In the written statement filed by the 4[th] respondent, he denied to have any manner of control over the Motorcycle bearing Registration No.KL-07/K 9339 at the relevant time when the accident took place. According to him, the Motorcycle was sold by him to one Mr.Shaji, S/o.Kamarudheen, Ambattanparambil, Kanjiramattam on 01.06.2006, and therefore, he has no liability to pay any compensation to the petitioners. The Original Petition was sought to be dismissed for the reasons. 5. Before the Tribunal, evidence was adduced by both parties. On the side of the petitioners, 1[st] petitioner was examined as PW1 and Exts.A1 to A8 were marked. On the side of respondents, Ext.B1 and Ext.X1 were marked. On appreciation of the entire evidence the Tribunal found that the Original Petition as not maintainable and the petitioners, not entitled to get MACA No.182 of 2014 -:6:- compensation under Section 163A of the MV Act. Thus, the Original Petition was dismissed. 6. The learned counsel for the petitioners contended that the Tribunal totally erred in arriving at such a finding and dismissing the Original Petition. According to him, negligence is irrelevant to be established by the petitioners claiming compensation under Section 163 A of the MV Act. According to him, the involvement of a vehicle alone needs to be established. The learned counsel urged on the basis of Exts.A1 to A5 on record that the involvement of the Car bearing Registration No.KL-5/L 1733 in the motor accident was established by the petitioner. According to him, the Tribunal on the basis of Ext.A2 scene mahazar, Ext.A4 report of inspection of the vehicle and Ext.X1, the Case Diary pertaining to the crime registered with regard to the motor accident in question, arrived at a finding that the MACA No.182 of 2014 -:7:- motor accident was occurred due to the rash and negligent riding of the Motorcycle by the victim who lateron died. Thus, the Tribunal also found that the petitioners failed to establish negligence on the part of the 2[nd] respondent and therefore are not entitled to get compensation from the respondents under Section 163A MV Act. 7. What is envisaged under Section 163A M.V. Act was that the victim of a motor accident who died or who has suffered permanent disability resulted from involvement of a motor vehicle is entitled to get compensation as shown in the second schedule. Therefore, the surviving members of the deceased are not liable to establish fault on the part of the rider of the Motorcycle for getting compensation under Section 163A M.V. Act. This view is also fortified by the dictums laid down by a Full Bench of this Court in **Oriental** MACA No.182 of 2014 -:8:- **Insurance Co. Ltd. v. Joseph V.V. @ Johny & Others** [2012 (2) KHC 1] and **United India Insurance Company Limited v. M. Vanitha & Another** [2019 KHC 5320]. 8. It is held in those cases that petitioners who are the legal representatives of a deceased claiming compensation under Section 163A M.V. Act are not liable to establish negligence, wrongful act or default on the part of the driver of the offending vehicle, which if insisted, will defeat the very purpose of the provision. That would be contrary to the intention, the Legislature had while incorporating Section 163A into the M.V. Act. The Tribunal undoubtedly has gone wrong in declining compensation under Section 163A M.V Act in favour of the petitioners after finding negligence on the victim who died due to the injuries sustained in the motor accident. It is also noticed from the Original Petition MACA No.182 of 2014 -:9:- seeking compensation that the petitioners had taken a plea that the motor accident was caused due to the rash and negligent driving of the Car bearing Registration No.KL-5/L 1733 by its driver, arrayed as the 2[nd] respondent. Based on that plea the Tribunal raised point No.1 “Who is responsible for the accident ?”. The plea ought to have been raised by the petitioners was that the motor accident in question was occurred due to the involvement of the Maruti Car bearing Registration No.KL-5/L 1733. 9. In view of the wrong plea raised in the Original Petition and a wrong point raised by the Tribunal on its basis that the Original Petition was dismissed by the Tribunal. The Tribunal having gone wrong in doing so, the award under challenge is liable to be set aside. In the result, M.A.C.A is allowed and the impugned award is set aside. O.P.(MV) No.78/2007 is remanded to MACA No.182 of 2014 -:10:- Motor Accidents Claims Tribunal, Muvattupuzha to raise an issue relevant for consideration instead of the one raised for consideration and to pass an award afresh in the light of the evidence adduced by the parties to the Original Petition. The Tribunal shall afford reasonable opportunity to both parties to adduce evidence with reference to their contentions. The Tribunal shall pass a fresh award within a period of two months from the date on which a certified copy of this judgment is received. Sd/- **MARY JOSEPH, JUDGE.** ttb