K. Rajamani & Rupesh K. v. K.K. Jose & The Oriental Insurance Co Ltd & Rangammal

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 14TH JUNE 2011 / 24TH JYAISHTA 1933 MACA.No. 66 of 2006() --------------------OPMV.56/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... ## APPELLANT(S): APPELLANTS/PETITIONERS ------------------------------------ 1. K.RAJAMANI, AGED 38 YEARS, W/O.LATE M.KANDASAMY, ROSE HOUSE, ROOM NO.2, CHELEMBRA, MALAPPURAM DISTRICT. 2. RUPESH K., AGED 23 YEARS, - S/O.LATE M.KANDASAMY, ROSE HOUSE, ROOM NO.2, CHELEMBRA, MALAPPURAM DISTRICT. BY ADV. SRI.JACOB ABRAHAM RESPONDENT(S): RESPONDENTS 1, 2 & 3RD PETITIONER ------------------------------------------------ 1. K.K.JOSE, S/O.K.C.VARU, KALAN HOUSE, P.O.CHELEMBRA, MALAPPURAM DISTRICT. 2. THE ORIENTAL INSURANCE CCO LTD., DIVISIONAL OFFICE-II, PARAMOUNT BUILDINGS, 2ND FLOOR, CHEROOTY ROAD, KOZHIKODE. 3. RANGAMMAL, W/O.MURUGA GOWNDER, ROSE HOUSE, ROOM NO.2, CHELEMBRA, MALAPPURAM DISTRICT. ADV. SRIC.M.MOHAMMED IQUABAL FOR R1 SRI.GEORGE CHERIAN (THIRUVALLA) FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **A.K.BASHEER & P.Q.BARKATH ALI, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.66 OF 2006** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14[th] day of June, 2011 ## **JUDGMENT** ## Barkath Ali, J. Claimants in O.P.(MV)No.56/1999 on the file of Motor Accidents Claims Tribunal, Tirur are the appellants. They are the wife, one minor child and mother of deceased Kandaswami who died in a motor accident. In this appeal, they challenge the judgment and award of the Tribunal dated September 23, 2005 dismissing their O.P. claiming compensation for the loss caused to them on account of the death of deceased in the accident. 2. Deceased Kandaswami was an employee of M/s. Eurospin Industries Limited, Chelembra. On April 7, 1998 at about 7.30 a.m., while he was riding his motor cycle bearing Reg.No.KL-10/F 8295 inside the compound of the company, he lost control and the motor cycle hit the main gate of the company. He sustained serious injuries and he succumbed to the injuries sustained while undergoing treatment in the hospital. Claimants filed the O.P. under Section 163 A of Motor Vehicles Act claiming a compensation of Rs.4,28,000/-. 3. First respondent, the owner of the offending motor cycle MACA.No.66/2006 2 filed a written statement contending that the accident did not take place in a public place, that deceased took the motor cycle without his knowledge, that the accident occurred due to the negligence of the deceased and that therefore he is not liable to pay compensation to the claimants. The second respondent, the insurer of the offending motor cycle filed a written statement admitting the policy, but denied the liability. 4. Pws 1 and 2 were examined and Exts.A1 to A7 were marked on the side of the claimants before the Tribunal. RW1 was examined and Exts.B1 to B3 were marked on the side of the respondents. On an appreciation of evidence, the Tribunal found that the accident did not take place in a public place as defined under Section 2(34) of Motor Vehicles Act 1988, that accident occurred due to the negligence of the deceased, that annual income of the deceased exceeds Rs.40,000/- and that therefore claimants are not entitled to any compensation from the respondents. The claimants have now come up in appeal challenging the said finding of the Tribunal. 5. Heard the counsel for the claimants and the counsel for the Insurance Company. MACA.No.66/2006 3 6. The following points arise for consideration : 1. Whether the claimants are entitled to any compensation from the respondents ? 2. If so, what is quantum ? 7. The Tribunal found that the accident occurred due to the negligence of the deceased himself and that the accident occurred not in a public place and that therefore claimants are not entitled to any compensation from the respondents. We shall first consider whether the finding of the Tribunal that the accident did not take place in a public place can be sustained. It is the admitted case that the accident happened inside the premises of the company. For several reasons, we hold that the said finding of the Tribunal cannot be sustained. Clause 34 of Section 2 of Motor Vehicles Act 1988 defines 'public place' as follows : _“Public place” means a road, street, way or other place,whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage._ 8. Counsel for the Insurance Company argued that PW2 has stated in cross examination that public have no right of entry into the MACA.No.66/2006 4 compound of the company and permission is required to be obtained for access and RW1 has also given a similar version and that therefore the place of accident cannot be treated as a public place as defined under Sec.2(34) of Motor Vehicles Act 1988. We find no merit in the above contention. It is settled law that a premises of a company where members of public had right of access to that place with permission can also be considered as public place as defined under Section 2(34) of Motor Vehicles Act 1988. See **Pandurang Chimaji Agale v. New India Life Insurance Co. Ltd** ( 1988 ACJ 674 ( Bombay), **Sahodra Devi v. Ramnarayan Satyanarayan** ( 1991 ACJ 695 (MP) and **Prakash Chemicals Pvt. Ltd. v. Krishna Singh Sata Singh Kashiyara** ( 1993 ACJ 218 (Gujarat). Therefore, in the present case also, the place of accident has to be treated as a public place as defined under Clause 34 of Section 2 of Motor Vehicles Act for the purpose of Motor Vehicles Act. The finding of the Tribunal on this point is set aside. 9. The specific case of the Insurance Company was that the accident happened due to the negligence of the deceased himself and that therefore the claimants are not entitled to any compensation from MACA.No.66/2006 5 the respondents. He has also pointed out that the annual income of the deceased exceeds Rs.40,000/- as evidenced by Ext.A4 his salary certificate and that therefore, claimants are not entitled to any compensation under Section 163 A of the Act. We find force in the above contention. Ext.A4 salary certificate of the deceased shows that he was drawing a salary of Rs. 3,977/- which comes to Rs. 47,624/- per annum. The Apex Court has held in Deepal Girishbhai Soni v. United India Insurance Company Limited (2004(2)KLT 395(SC) that if the annual income of a person exceeds Rs.40,000/-, he is not entitled to the benefit of Section 163 A of the Act. Further, the accident happened due to the negligence of deceased himself. For all these reasons, the Tribunal is perfectly justified in holding that the claimants are not entitled to any compensation under Section 163 A of the Act. 10. There is another aspect in this case. When the appeal came up for hearing, counsel for the claimants submitted that he is not pressing the claim under Section 163 A of the Act and that even then claimants are entitled to compensation under Section 140 of the Motor Vehicles Act i.e. Rs. 50,000/-. We find force in the above contention. 11. As the claimants do not press the claim under Section 163 MACA.No.66/2006 6 A of Motor Vehicles Act, their claim has to be treated as a claim under Section 166 of Motor Vehicles Act. As the accident happened due to the negligence of deceased himself, the claimants will not be entitled to any compensation under Section 166 of the Act. But in any view of the matter, they will be entitled to compensation under Section 140 of the Act. In the case of death no fault liability under Section 140 of the Act is Rs.50,000/-. Claimants are entitled to the same. 12. In the result, the impugned award of the Tribunal dismissing the O.P. is set aside and award is passed under Section 140 of Motor Vehicles Act granting a compensation of Rs.50,000/- to the claimants. They are entitled to interest @ 7.5% per annum from the date of petition till reaslisation and proportionate cost. The third respondent Insurance Company shall deposit the amount within two months from the date of receipt of a copy of this judgment. The appeal is disposed of as found above. ## **A.K.BASHEER, JUDGE** ## **P.Q.BARKATH ALI, JUDGE** sv. MACA.No.66/2006 7 MACA.No.66/2006 8