MACA No. 1457 of 2009 & MACA No. 2378 of 2008: Abraham Varkey Podipara v. The New India Assurance Co. Ltd. and Alexander Devasia and others (High Court of Kerala, Ernakulam)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942** ## **MACA.No.1457 OF 2009** **AGAINST THE AWARD IN OPMV 1050/2005 DATED 16-05-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM** ## **APPELLANT/1ST RESPONDENT:** **ABRAHAM VARKEY PODIPARA (H) KATTHOTTI P.O., AYYAPPAN KAVIL, IDUKKI.** **BY ADV. SRI.ABRAHAM GEORGE JACOB** ## **RESPONDENTS/PETITIONERS AND 2ND RESPONDENT:** **1 ALEXANDER DEVASIA PUTHUPARAMBIL (H) KOTTAMURI P.O., THRIKKODITHANAM KARA,, THRIKKODITHANAM VILLAGE, KOTTAYAM DISTRICT.** - **2 THRESIAMMA ALEXANDER -DO- -DO- -DO-** - **3 KUNJUMOL VARGHESE @ MARIAKUTTY KOCHUPARAMBIL, TOTTACKADU KARA,, THOTTACKADU VILLAGE, KOTTAYAM DISTRICT.** **4 ANTONY P.A. @ JOYCHAYAN PUTHUPARAMBIL (H), KOTTAMURI P.O.,, THRIKKODITHANAM KARA, THRIKKODITHANAM VILLAGE,, KOTTAYAM DISTRICT.** - **5 ELSAMMA CHOODAMANNIL (H) THOTTACKADU VILLAGE, KOTTAYAM DISTRICT.** 2 M.A.C.A. No. 1457/2009 & M.A.C.A. No. 2378/2008 - **6 GIJI MATHEW @LEELAMMA GIGIMOL PULLAPPALLIYIL (H), SOUTH PAMPADY P.O.,, PAMPADY VILLAGE, KOTTAYAM DISTRICT.** - **7 LEENA BOBAN BOBAN VILLA KUTTOOR P.O., THIRUVALLA,, PATHANAMTHITTA DISTRICT.** - **8 THE NEW INDIA ASSURANCE COMPANY LTD. IDUKKI.** **R1 BY ADV. SRI.K.A.HASHIM R1 BY ADV. SRI.N.S.MOHAMMED USMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01.03.2021, ALONG WITH MACA.2378/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. No. 1457/2009 & M.A.C.A. No. 2378/2008 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942** ## **MACA.No.2378 OF 2008** ## **AGAINST THE AWARD IN OPMV 1050/2005 DATED 16-05-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM** ## **APPELLANT/S:** |**1**|**ALEXANDER DEVASIA**| |---|---| ||**PUTHUPARAMBIL HOUSE,**| ||**KOTTAMURI P.O.,**| ||**THRIKODITHANAM KARA VILLAGE.**| |**2**|**THRESIAMMA ALEXANDER**| ||**DO**| |**3**|**KUNJUMOL VARGHESE @MARIAKUTTY**| ||**KOCHUPARAMBIL,**| ||**THOTTACKADU KARA, DO VILLAGE.**| |**4**|**ANTONY P.A.@JOYCHAYAN PUTHUPARAMBIL**| ||**KOTTAMURI P.O.,**| ||**THRIKKODITHANAM KARA DO VILLAGE.**| |**5**|**ELSAMMA**| ||**CHOONDAMANNIL HOUSE**| ||**THOTTACKODU VILLAGE.**| |**6**|**GIJI MATHEW @LEELAMMA GIGIMOL**| ||**PULLAPPALLIYIL HOUSE,**| ||**SOUTH PAMPADI P.O.,,**| ||**PAMPADI VILLAGE.**| |**7**|**LEENA BOBAN**| ||**BOBAN VILLA**| ||**KUTTOOR P.O.,**| ||**THIRUVALLA,PATHANAMTHITTA.**| ||**BY ADV. SRI.K.A.HASHIM**| M.A.C.A. No. 1457/2009 & M.A.C.A. No. 2378/2008 4 ## **RESPONDENT/S:** **1 ABRAHAM VARKEY PADIPARA HOUSE, KATTHOTTI P.O., AYYAPPAN KOVIL,, IDUKKI.** - **2 THE NEW INDIA ASSURANCE CO. LTD IDUKKI.** **R1 BY ADV. SRI.ABRAHAM GEORGE JACOB R1 BY ADV. SRI.N.S.MOHAMMED USMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01.03.2021, ALONG WITH MACA.1457/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. No. 1457/2009 & M.A.C.A. No. 2378/2008 5 ## **`P.V.KUNHIKRISHNAN, J`** ``` --------------------------------------- M.A.C.A. No. 1457 of 2009 & M.A.C.A. No. 2378 of 2008 ------------------------------------------ Dated this the 1[st] day of March 2021 ``` ## **`JUDGMENT`** ``` The above captioned appeals are filed challenging the same award in O.P.(M.V).No.1050/2005 of the Motor Accidents Claims Tribunal, Kottayam. M.A.C.A.No. 2378/2008 is filed by the claimants and M.A.C.A. No. 1457/2009 is filed by the 1[st] respondent, owner of the vehicle involved in the case. Since these two appeals are connected, I dispose these two appeals by a common judgment. (Hereinafter the parties are mentioned in accordance to their rank before the Tribunal) ``` ``` 2. The brief facts are like this:- On 07.12.2003, at about 11.a.m, the deceased was riding a motor cycle bearing registration No. KL.6A-2524 owned by the 1[st] respondent from Kunnumpuram to Thengana. It is the case of the petitioner that the rider lost the balance of the ``` M.A.C.A. No. 1457/2009 & M.A.C.A. No. 2378/2008 6 ``` vehicle and thereby the vehicle hit on an electric post and the rider sustained fatal injuries. Though, immediately he was taken to hospital, he succumbed to the injuries. Hence, the claim petition is filed under Section 163A of the Motor Vehicle Act for granting of compensation on account of death of the Thomas @ Gojimon, who was a painter and getting a monthly income of Rs. 3,000/-. ``` ``` 3. Exhibit A1 to A5 were marked on the side of the claimants and Exhibit B1 is the policy certificate of the vehicle involved in this case. After going through the documents and pleadings, the claim petition was allowed and an award was passed directing the 1[st] respondent to pay a compensation of Rs. 54,500/- with interest at the rate of 7% p.a., from the date of petition. The 2[nd] respondent was exonerated from payment of compensation, because it was an Act Only policy. Aggrieved by the above award, the claimants and the 1[st] respondent filed these appeals. ``` `4. The learned counsel for the 1[st] respondent/appellant` `in M.A.C.A. No. 1457/2009 submitted that in the light of the judgment of the Apex Court in` **`Ningamma and`** M.A.C.A. No. 1457/2009 & M.A.C.A. No. 2378/2008 7 ## **`Another v. United India Insurance Company Ltd.`** ``` [2009 KHC 5046], the claim petition itself is not maintainable under Section 163A. The relevant portion of the judgment is extracted herein:- ``` ``` “18. In the case of Oriental Insurance Company Ltd. v. Rajini Devi and Others, 2008(5)SCC 736, wherein one of us, namely, Hon'ble Justice S.B. Sinha is a party, it has been categorically held that in a case where third party is involved, the liability of the insurance company would be unlimited. It was also held in the said decision that where, however, compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the claimant against the insurance company would depend upon the terms thereof. It was held in the said decision that S. 163A of the Motor Vehicle Act cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved. The decision further held that the question ``` M.A.C.A. No. 1457/2009 & M.A.C.A. No. 2378/2008 8 ``` is no longer resintegra. The liability under Section. 163A of the MVA is on the owner of the vehicle. So a person cannot be both, a claimant as also a recipient, with respect to claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163A of the MVA. In our considered opinion, the ratio of the aforesaid decision is clearly applicable to the facts of the present case. In the present case, the deceased was not the owner of the the motorbike in question. He borrowed the said motorbike from its real owner. The deceased cannot be held to be employee of the owner of the motorbike although he was authorised to drive the said vehicle by its owner, and therefore, he would step into the shoes of the owner of the motorbike. ``` ``` 19. We have already extracted S.163A of the Motor Vehicle Act herein before. A bare perusal of the said provision would make it explicitly clear that persons like the deceased in the present case would step into the shoes of the owner of the vehicle. In a case wherein the victim died ``` M.A.C.A. No. 1457/2009 & M.A.C.A. No. 2378/2008 9 ``` or where he was permanently disabled due to an accident arising out of the aforesaid motor vehicle in that event the liability to make payment of the compensation is on the insurance company or the owner, as the case may be as provided under Section 163A. But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to pay the same is on him. This proposition is absolutely clear on a reading of S.163A of the MVA. 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 S. 163-A of the MVA.” ``` ``` 4. The admitted case is that the deceased took the vehicle from the 1[st] respondent and hit the vehicle on an electric post. In the above judgment, the Apex Court held that the person like deceased in the present case are persons who have to step into the shoes of the owner of the vehicle. In a case where the victim died or he was ``` M.A.C.A. No. 1457/2009 & M.A.C.A. No. 2378/2008 10 ``` permanently disabled due to an accident arising out of the aforesaid motor vehicle, in that event the liability to make payment of the compensation is on the insurance company or the owner as the case may be as provided under section 163A. But, if it is proved that the driver is the owner of the motor vehicle, in that case, the owner could not himself be a recipient of compensation as the liability to pay the same is on him. The legal representative of the deceased, who have stepped into the shoes of the owner of the motor vehicle could not have claim compensation under Section 163A of the Motor Vehicle Act in the light of the above principle laid down in the above decision. In the light of the above decision, the claim petition under Section 163A of Motor Vehicle is not maintainable. Therefore, the Tribunal erred in entertaining the claim petition itself. Therefore, the impugned award is liable to be set aside. ``` ``` 5. At this stage, the learned counsel for the appellants in M.A.C.A No. 2378/2008 submitted that as per Exhibit B1 policy, an amount of Rs. 50/- is paid as premium towards compulsory personal accident claim to the owner. ``` M.A.C.A. No. 1457/2009 & M.A.C.A. No. 2378/2008 11 ``` Therefore, the appellants are entitled atleast that amount. The learned counsel also relied on the judgment of the Apex Court inRamkhiladi and Another v. United India Insurance Company and Another [2020 (1) KHC SN ``` ``` 13 (Page No.30) (SC)]. I see some force in the arguments of the learned counsel. Admittedly additional premium is paid for personal accident as evident from Exhibit B1 certificate. If that is the case, the appellant is entitled an amount of Rs. 1,00,000/- towards personal accident claim to the owner of the vehicle as per Exhibit B1 certificate. The 2[nd] respondent is Liable to pay the said amount. ``` ``` Therefore these appeals are disposed of in the following manner.:- ``` ``` (i) M.A.C.A No. 1457/2009 is allowed and the impugned award is set aside. ``` ``` (ii) M.A.C.A. No. 2378/2008 is allowed in part. The 2[nd] respondent will pay a sum of Rs. 1,00,00/- (Rupees One Lakh Only) to the appellants towards personal accident claim to the owner, as per Exhibit B1 policy, for which the premium is paid. ``` M.A.C.A. No. 1457/2009 & M.A.C.A. No. 2378/2008 **==> picture [13 x 7] intentionally omitted <==** ``` (iii) The amount deposited by the appellants in M.A.C.A. No. 1457/2009 will be disbursed to the appellants. ``` ## **`Sd/-`** ## **`P.V.KUNHIKRISHNAN`** ``` JUDGE ``` ``` avs ```