MACA NO. 1324 OF 2011 & OP (MAC) NO. 3536 OF 2011, High Court of Kerala at Ernakulam

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` TUESDAY, THE 17[TH] DAY OF OCTOBER 2023 / 25TH ASWINA, 1945 ``` ``` MACA NO. 1324 OF 2011 ``` ``` AGAINST THE AWARD DATED 21.01.2011 IN OP(MV) 572/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR ``` ## **`APPELLANT/2ND RESPONDENT:`** ``` THE NEW INDIA ASSURANCE CO.LTD. PERUMBAVOOR NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI – 11. ``` ``` BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ``` ## **`RESPONDENTS/PETITIONER AND RESPONDENTS 1 & 4:`** ``` 1SHAILA W/O DILEEP, KAVUNGAL (SARUGA) HOUSE, NJARALLOOR, KIZHAKKAMBALAM 683562. 2JANEESH T.K., THERETH HOUSE ARAKKUNNAM P.O., MUVATTUPUZHA - 683 513. 3LEELA VIJAYAN W/O.LATE VIJAYAN PARAPURATH HOUSE, KAIPPILLY KARA, VENGOOR – 683546. ``` ``` (THE 3RD RESPONDENT IN THE ORIGINAL PETITION, DIED). BY ADVS. S.K.BALACHANDRAN SRI.SHEJI P.ABRAHAM N.D.DEEPA K.M.BIJU ``` ``` THIS MACA HAVING COME UP FOR ADMISSION ON 17.10.2023, ALONG WITH OP (MAC).3536/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1324 OF 2011 & OP (MAC) NO. 3536 OF 2011 ``` ``` 2 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 17[TH] DAY OF OCTOBER 2023 / 25TH ASWINA, 1945 OP (MAC) NO. 3536 OF 2011 ``` ## **`OP(MV) NOS.545/2006, 553/2006, 554/2006 BEFORE MOTOR`** ## **`ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR`** ## **`PETITIONER:`** ``` THE NEW INDIA ASSURANCE CO. LTD. PERUMBAVOOR NOW REP. BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM. ``` ``` BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ``` ## **`RESPONDENTS:`** ``` 1AMRITHA (MINOR) D/O SUNDARAN,KAVUNGAL HOUSE, NJARALLOOR, KIZHAKKAMBALAM, REPRESENTED BY HER MOTHER SHEELA, W/O.SUNDRAN, KAVUNGAL HOUSE, NJARALLOOR, KIZHAKKAMBALAM, PIN-683515. ``` ``` 2ARYA (MINOR) D/O.SAJU, KAVUNGAL HOUSE, NJARALLOOR, KIZHAKKAMBALAM, REPRESENTED BY HER FATHER SAJU, S/O.THANKAPPAN, KAVUNGAL HOUSE, NJARALLOOR, KIZHAKKAMBALAM, PIN-683515. ``` ``` MACA NO. 1324 OF 2011 & OP (MAC) NO. 3536 OF 2011 ``` ``` 3 ``` ``` 3AKSHAY (MINOR) S/O.SAJU, KAVUNGAL HOUSE, NJARALLOOR, KIZHAKKAMBALAM, REPRESENTED BY HIS FATHER SAJU, S/O.THANKAPPAN, KAVUNGAL HOUSE, NJARALLOOR, KIZHAKKAMBALAM, PIN-683515. 4JANEESH T.K. THERETH HOUSE ARAKKUNNAM P.O., MUVATTUPUZHA-683513. ``` ``` 5LEELA VIJAYAN W/O.LATE VIJAYAN PARAPURATH HOUSE, KAIPPILLY KARA, VENGOOR, PIN-683511. ``` ``` BY ADVS. S.K.BALACHANDRAN N.D.DEEPA K.M.BIJU ``` ``` THIS OP (MAC) HAVING COME UP FOR ADMISSION ON 17.10.2023, ALONG WITH MACA.1324/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1324 OF 2011 & OP (MAC) NO. 3536 OF 2011 ``` ``` 4 ``` ## **`JUDGMENT`** This O.P.(M.A.C) and M.A.C.A are filed challenging a common award passed by the Motor Accident Claims Tribunal, Perumbavoor in O.P.(M.V.) Nos.544, 545, 553, 554, 566, 571 and 572 of 2006. These challenges were raised by the 2[nd] respondent in the claim petition, the insurer of the vehicle involved in the accident. 2. The M.A.C.A. No.1324/2011 was filed by the 2[nd] respondent challenging the award passed in O.P.(M.V.) No.572/2006 passed by the Motor Accident Claims Tribunal, Perumbavoor, whereas O.P.(M.A.C.) No.3536 was filed by the 2[nd] respondent in the claim petition challenging the awards passed in O.P.(M.V.) Nos.545, 553 and 554 of 2006. The original petition was necessitated as the awards, which are under challenge in the said petition, were for amounts below Rs.10,000/- and therefore, the remedy of appeal under Section 173 of the Motor Vehicles Act, 1988 was not available for such awards. For convenience, the parties herein are referred to as per their respective ranks in the claim petition. ``` MACA NO. 1324 OF 2011 & OP (MAC) NO. 3536 OF 2011 ``` ``` 5 ``` 3. The facts which led to the filing of this appeal and the original petition are as follows: All the above referred claim petitions were submitted for compensation for the injuries sustained by the respective petitioners in a motor accident that occurred on 09.02.2006. All the petitioners were travelling as passengers in the autorickshaw bearing Registration No.KL 01 T 1004 through Kizhakkambalam – Pattimattom road and thereupon, due to the rash and negligent driving of the autorickshaw driver, it capsized, thereby the passengers sustained injuries. The claim petitions were submitted in such circumstances. 4. The Insurance Company filed a written statements admitting the coverage of policy for the vehicle involved. However, they raised a contention that the maximum number of passengers permitted in the autorickshaw was three persons, and the coverage of policy was available only for three persons. However, at the relevant time, the autorickshaw was carrying seven passengers, and therefore, they cannot be held liable to pay compensation in respect of all the ``` MACA NO. 1324 OF 2011 & OP (MAC) NO. 3536 OF 2011 ``` ``` 6 ``` said claimants, it was contended. 5. The claim petitions were tried together and were disposed of by a common award. The evidence in this case consists of Exts.A1 to A21 from the side of claimants, and from the side of the Insurance Company Ext.B1, the copy of the policy was marked. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligent driving of the autorickshaw. The quantum of compensation was fixed in the manner as follows: O.P.(M.V.) No.545/2006 : Rs.6,363/O.P.(M.V.) No.553/2006 : Rs.4,600/O.P.(M.V.) No.554/2006 : Rs.6,164/O.P.(M.V.) No.572/2006 : Rs.10,474/- Even though the Tribunal accepted the contention of the Insurance Company that their liability to indemnify the owner of the autorickshaw is only in respect of three passengers, it was directed that the Insurance Company shall deposit the amounts covered as per all the awards. It was further observed that they shall be at liberty to recover the amounts covered by the awards in O.P.(M.V.) No.545/2006, 553/2006, 554/2006 and 572/2006(awards where ``` MACA NO. 1324 OF 2011 & OP (MAC) NO. 3536 OF 2011 ``` ``` 7 ``` lesser amounts were awarded), from the 1[st] respondent and the estate of the additional 3[rd] respondent inherited by the additional 4[th] respondent, jointly and severally. The challenge in this appeal and the original petition raised by the Insurance Company are against the direction to them to pay the amounts covered by all the said awards, subject to the right of recovery as mentioned above. 6. Heard Sri. Mathews Jacob, learned counsel appearing for the Insurance Company, the appellant in M.A.C.A No.1324/2011 and the petitioner in O.P.(M.A.C.) No.3536/2011, Sri. Sheji P.Abraham, learned counsel appearing for the 3[rd] respondent and Sri. S.K. Balachandran, learned counsel appearing for the 2[nd] respondent in M.A.C.A. 7. The main contention put forward by the learned counsel for the Insurance Company is by placing reliance upon the principles laid down by the Hon’ble Supreme Court in **National Insurance Company v. Anjana Shyam and Ors.** [(2007) 7 SCC 445]. The question of liability of the Insurance Company in respect of a case where the vehicle carrying more than the persons covered by the ``` MACA NO. 1324 OF 2011 & OP (MAC) NO. 3536 OF 2011 ``` ``` 8 ``` policy was considered by the Hon’ble Supreme Court in the said decision. After elaborately discussing the contentions raised by the parties concerned and examining judicial precedents on the point it was observed by the Hon’ble Supreme Court, in the manner as follows: _“22. Then arises the question, how to determine the compensation payable or how to quantify the compensation since there is no means of ascertaining who out of the overloaded passengers constitute the passengers covered by the insurance policy as permitted to be carried by the permit itself. As this Court has indicated, the purpose of the Act is to bring benefit to the third parties who are either injured or dead in an accident. It serves a social purpose. Keeping that in mind, we think that the practical and proper course would be to hold that the Insurance Company, in such a case, would be bound to cover the higher of the various awards and will be compelled to deposit the higher of the amounts of compensation awarded to the extent of the number of passengers covered by the insurance policy._ _23. Illustratively, we may put it like this. In the case on hand, 42 passengers were the permitted passengers and_ ``` MACA NO. 1324 OF 2011 & OP (MAC) NO. 3536 OF 2011 ``` ``` 9 ``` _they are the ones who have been insured by the Insurance Company. 90 persons have either died or got injured in the accident. Awards have been passed for varied sums. The Tribunal should take into account the higher of the 42 awards made, add them up and direct the Insurance Company to deposit that lump sum. Thus, the liability of the Insurance Company would be to pay the compensation awarded to 42 out of the 90 passengers. It is to ensure that the maximum benefit is derived by the insurance taken for the passengers of the vehicle, that we hold that the 42 awards to be satisfied by the Insurance Company would be the 42 awards in the descending order starting from the highest of the awards. In other words, the higher of the 42 awards will be taken into account and it would be the sum total of those higher 42 awards that would be the amount that the Insurance Company would be liable to deposit. It will be for the Tribunal thereafter to direct distribution of the money so deposited by the Insurance Company proportionately to all the claimants, here all the 90, and leave all the claimants to recover the balance from the owner of the vehicle. In such cases, it will be necessary for the Tribunal, even at the initial stage, to make appropriate orders to ensure that the amount could be recovered from the owner by ordering attachment or by_ ``` MACA NO. 1324 OF 2011 & OP (MAC) NO. 3536 OF 2011 ``` ``` 10 ``` _passing other restrictive orders against the owner so as to ensure the satisfaction in full of the awards that may be passed ultimately.”_ Thus, it was held that, in such cases, as far as the liability of the Insurance Company is concerned, the same would be limited to the number of passengers covered as per the policy and nothing beyond that. Thus, a specific direction was issued by the Hon’ble Supreme Court to pass an award directing the Insurance Company to deposit the highest amount covered as per the awards in question and permitted the Tribunal to distribute the said amount among the total claimants proportionally. In other words, as per the principles therein, the Insurance Company has to be exonerated from liability as far as the claims in excess of the persons covered by the policy and carried in the said vehicle. The only aspect to be noticed is that the liability of the Insurance Company to satisfy the awards will be for the highest among the awards in terms of the quantum of compensation. The primary contest in this original petition and the appeal at the instance of the Insurance Company was by placing ``` MACA NO. 1324 OF 2011 & OP (MAC) NO. 3536 OF 2011 ``` ``` 11 ``` reliance upon the same, by contending that in the light of the observations referred to above, Tribunal ought not to have directed the insurer to satisfy the amounts covered by all the awards, instead, it should have been restricted to the awards in which higher amounts were granted. 8. However, the crucial aspect to be noticed is that in **United India Insurance Co. Ltd. V. K.M. Poonam and others** [(2015) 15 SCC 297], the said question again came up before the Hon’ble Supreme Court. After referring to **Anjana Shyam** ’s case (cited supra), the Hon’ble Supreme Court directed the Insurance Company therein to deposit the entire amount of compensation. The amounts covered by the highest awards were fixed as the liability of the Insurance Company, and the amounts covered as per the remaining awards (awards with lesser amounts) were permitted to be recovered by the Insurance Company from the registered owner of the said vehicle. Thus, it is evident that, as per the position of law as settled by the Hon’ble Supreme Court in **Poonam** ’s case (cited supra), even though the liability of the Insurance Company is limited ``` MACA NO. 1324 OF 2011 & OP (MAC) NO. 3536 OF 2011 ``` ``` 12 ``` to number of passengers covered as per the policy, they have an obligation to deposit the entire amount covered as per all the awards at the first instance with a right to recover the amounts covered by the awards with lesser amounts, from the registered owner of the vehicle. In the impugned award, the direction issued by the Tribunal, as far as the satisfaction of the awards by the insurer is concerned, is in tune with the observations made by the Hon’ble Supreme Court in **Poonam** ’s case. Therefore, as it is in tune with the settled position of law, I do not find any illegality in the award passed by the Tribunal and the directions contained therein with respect to the satisfaction of the awards. Therefore, I do not find any merit in this appeal and original petition and accordingly, this appeal and the original petition are dismissed, confirming the respective awards passed by the Tribunal. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs ``` MACA NO. 1324 OF 2011 & OP (MAC) NO. 3536 OF 2011 ``` ``` 13 ``` ## **`APPENDIX OF O.P.(MAC) 3536 OF 2011`** ``` PETITIONER ANNEXURES EXHIBIT P1 ``` ``` TRUE COPY OF THE COMMON AWARD DATED 21.01.2011 IN O.P.(MV) 545, 553 AND 554 OF 2006 BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR. ```