High Court of KeralaSingle Judge2020-07-23MACA 2073/2008 allowed; MACA 2311/2012 rejected...

MACA No. 2073 of 2008 (C) and MACA No. 2311 of 2012, New India Assurance Company Ltd. v. Joseph P.N. and others; Commanding Officer 11 Kerala Battalion NCC Alappuzha v. KSRTC and others

Case / Petition Number:MACA No. 2073 of 2008 (C); MACA No. 2311 of 2012

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2020-07-23
Court Decision / Holding: MACA No.2073/2008 is allowed; MACA No.2311/2012 is rejected. The KSRTC and Gypsy owner’s shares are to be remitted within three months from receipt of the certified copy, with 12% interest on default after the period.
Final Disposition: MACA 2073/2008 allowed; MACA 2311/2012 rejected; costs not awarded; execution directed for the liable shares with interest if not paid within three months.

Parties to the Case

Appellants / Petitioners

The New India Assurance Company Ltd.
Commanding Officer 11 Kerala Battalion NCC Alappuzha

Respondents

Joseph P.N. S/o Nasarius
Mathew P.J. S/o Joseph
Cicily D/o Joseph
N.B. Rajendran S/o Narayanan
George S/o Avira Nediya kalayil Veedu, Ward No.3, Palappally
The Managing Director KSRTC, Thiruvananthapuram
National Insurance Company Ltd.
Balakrishnan

Legal Representation & Advocates

Counsels for Petitioners

• The New India Assurance Company Ltd. — Mathews Jacob (Sr.), P. Jacob Mathew
• Commanding Officer 11 Kerala Battalion NCC Alappuzha — P. Vijayakumar (ASG of India), Jaishankar V. Nair (CGC)

Counsels for Respondents

• Joseph P.N.
• Mathew P.J.
• Cicily D.
• N.B. Rajendran
• George S.
• The Managing Director KSRTC
• National Insurance Company Ltd.
• Balakrishnan

Case Synopsis & Summary

This is a Kerala High Court judgment delivered by Justice K. Vinod Chandran on 23 July 2020, arising from two Motor Accident Claims Appeals (MACA Nos. 2073/2008 (C) and 2311/2012) challenging an award passed by the Motor Accidents Claims Tribunal, Alappuzha, under Section 163A of the Motor Vehicles Act, 1988. The accident occurred on 05-02-2002 and involved a motorbike rider who died after colliding with a Gypsy car owned by the New India Assurance Company and a KSRTC bus. The Tribunal apportioned liability equally among the involved vehicle owners, directing one-third each to the bike owner, the Gypsy owner, and the KSRTC. The insurer in MACA 2073/2008 argued that there was no additional rider premium and hence no liability to indemnify, relying on a judgment in Jiljet v. Stamphen George (2018) 5 KHC 206 that no extra premium confers liability. The NCC appellant in MACA 2311/2012 contended that no liability could rest on the Gypsy owner in the absence of negligence. The court clarifies that Section 163A does not require negligence to be proven by the claimant, but it does not absolve vehicle owners of liability. It follows the cited decisions and directs payment of shares with interest if default occurs. Ultimately, MACA 2073/2008 is allowed, and MACA 2311/2012 is rejected, with executions permitted against the liable owners for their respective shares.

Provisions of Law Cited

Section 163A, Motor Vehicles Act, 1988Motor Vehicles Act, 1988 (general)

Submissions & Arguments

Contentions of Appellants / Petitioners

MACA 2073/2008 contends there was no additional premium for rider coverage; hence no liability to indemnify the owner, citing 2018(5) KHC 206 (Jiljet v. Stamphen George) and arguing that Section 163A relieves the insurer from liability in such circumstances. The appellant in MACA 2311/2012 argues no liability can be cast on the Gypsy owner since no negligence was found; the thrust is that liability should not extend beyond the statutory framework and that the Tribunal’s apportionment requires reconsideration.

Contentions of Respondents

The respondents (claimants) contend that liability under Section 163A is apportioned among vehicle owners irrespective of negligence findings, and the Tribunal correctly directed 1/3 liability on each owner. They rely on the statutory intent of Section 163A to ensure compensation for the deceased’s family and on the Tribunal’s order directing payment of shares with timelines and interest for default.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Jiljet and another v. Stamphen George and others	2018(5) KHC 206	Positive	Court followed this decision to hold insurer has no liability where no rider premium is paid.
United India Insurance Co. Ltd. v. Sunil Kumar	2017(4) KLT 1093 (SC)	Positive	SC decision aiding interpretation that Section 163A absolves the claimant from proving negligence.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 23RD DAY OF JULY 2020 / 1ST SRAVANA, 1942** ## **MACA.No.2073 OF 2008(C)** **AGAINST THE AWARD IN OPMV 1467/2002 DATED 28-01-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ALAPPUZHA** ## **APPELLANT:** **THE NEW INDIA ASSURANCE COMPANY LTD. ALLEPPEY NOW REPRESENTED BY ITS MANAGER,, REGIONAL OFFICE, M.G.ROAD, KOCHI-11.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS:** - **1 JOSEPH P.N. S/O NASARIUS, PANACHIKAL,WARD NO.2, PUNNAPRA SOUTH PANCHAYATH,, ALAPPUZHA.** - **2 MATHEW P.J. S/O.JOSEPH DO. DO.** - **3 CICILY D/O.JOSEPH DO. DO.** - **4 N.B.RAJENDRAN S/O.NARAYANAN, PREETHI NIVAS, PAZHAVEEDU, ALAPPUZHA.** - **5 COMMANDING OFFICER II BATALIAN - II(K) B.N., N.C.C., ALAPPUZHA.** - **6 GEORGE S/O.AVIRA NEDIYAKALAYIL VEEDU WARD NO.3, PALAPPALLY, VARANTHARAPPALLY,, THRISSUR DISTRICT.** - **7 THE MANAGING DIRECTOR KSRTC THIRUVANANTHAPURAM.** - **8 BALAKRISHNAN SO.GOVINDAKURUP BALARAGOM, KALARCODE, ALLEPPEY.** MACA Nos.2073/2008 & 2311/2012 2 **R5 BY ASSISTANT SOLICITOR GENERAL R5 BY SRI.JAISHANKAR V.NAIR, CGC R7 BY ADV. SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.07.2020, ALONG WITH MACA.2311/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA Nos.2073/2008 & 2311/2012 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 23RD DAY OF JULY 2020 / 1ST SRAVANA, 1942** ## **MACA.No.2311 OF 2012** **AGAINST THE AWARD IN OPMV 1467/2002 DATED 28-01-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ALAPPUZHA** ## **APPELLANT/S:** **COMMANDING OFFICER 11 KERALA BATTALION N.C.C. ALAPPUZHA.** **BY ADVS. SHRI.P.VIJAYAKUMAR, ASG OF INDIA SRI.JAISHANKAR V.NAIR, CGC** ## **RESPONDENT/S:** **1 JOSEPH.P.N. S/O. NASARIUS, PANACHIKAL WARD NO.2, PUNNAPRA SOUTH PANCHAYATH, ALAPUZHA DISTRICT.688004 2 MATHEW.P.J. S/O. JOSEPH,PANACHIKAL WARD NO.2, PUNNAPRA SOUTH PANCHAYATH, ALAPUZHA DISTRICT.688004 3 CICILY D/O. JOSEPH,PANACHIKAL WARD NO.2, PUNNAPRA SOUTH PANCHAYATH, ALAPUZHA DISTRICT.688004 4 N.B. RAJENDRAN S/O. NA. NARAYANAN, PREETHI NIVAS, PAZHAVEEDU, ALAPPUZHA.688009** MACA Nos.2073/2008 & 2311/2012 4 - **5 GEORGE S/O. AVIRAH, NEDIYAKALAYIL VEEDU, WARD NO.3, PALAPPALLY, VARANTHARAPPALLY PANCHAYATH, VARANTHARAPPALLY VILLAGE, THRISSUR DISTRICT.** - **6 MANAGING DIRECTOR KSRTC THIRUVANANTHAPURAM.695001** - **7 NATIONAL INSURANCE COMPANY LTD. REPRESENTED BY ITS BRANCH MANAGER, DIVISIONAL OFFICE, THIRUVANANTHAPURAM.695001** - **8 BALAKRISHNAN** - **S/O. GOVINDA KURUP, BALARAGOM, KALARCODE, ALAPPUZHA.688003** - **9 THE NEW INDIA INSURANCE COMPANY LIMITED REPRESENTED BY ITS BRANCH MANAGER, ALAPPUZHA.688012** **R1 BY ADV. SMT.BHAVANA VELAYUDHAN** **R1, R8 BY ADV. SRI.M.JITHESH MENON R1 BY ADV. SRI.R.RAJESH R1 BY ADV. SRI.S.SANAL KUMAR R6 BY ADV. SRI.P.C.CHACKO(PARATHANAM) R9 BY ADV. SRI.MATHEWS JACOB (SR.) R9 BY ADV. SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.07.2020, ALONG WITH MACA.2073/2008(C), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA Nos.2073/2008 & 2311/2012 5 ## **JUDGMENT** ## **Dated this the 23[rd] day of July, 2020** The above appeals are filed by the Insurance Company of a Gypsy car and the owner of the bus involved in an accident, in which the rider of a motor bike succumbed to the injuries caused. The accident occurred on 05.02.2002. The FIR produced as Ext. A1 finds that the accident was not due to the negligence of any of the vehicles involved in the accident. The motor bike in which the deceased was the rider skidded and hit the Gypsy car owned by the appellant in MACA No.2311/2012 which hit a KSRTC bus. The rider of the motor bike succumbed to the injuries suffered in the accident. 2. The application was filed by the father, brother and sister of the deceased under Section 163A. The Tribunal found that the liability has to be apportioned to all the three vehicle owners. The Tribunal hence directed 1/3[rd] of the compensation MACA Nos.2073/2008 & 2311/2012 6 awarded as per the Schedule under Section 163A to be paid by each of the vehicle owners. In the case of motor bike, the appellant in MACA No.2073/2008 was mulcted with the liability. In the other cases, the KSRTC and the appellant in MACA No.2311/2012, respectively the owner of the bus and the Gypsy car were each mulcted with 1/3[rd] of the liability. **==> picture [377 x 13] intentionally omitted <==** without reference to the negligence of any of the drivers involved in a motor vehicle accident. In the appeal filed by the insurer MACA No.2073/2008, the only contention raised is on the basis of the decision of this Court reported in _**2018(5) KHC 206**_ ## _**[Jiljet and another v. Stamphen George and others]**_ . There was no additional premium paid as additional coverage for the rider. In such circumstance the insurer does not have the liability to indemnify the owner is the contention. Respectfully following the said decision, it has to be held that the appellant MACA Nos.2073/2008 & 2311/2012 7 in MACA No.2073/2008 has no liability. 4. MACA No.2311/2012 is filed by the owner of the Gypsy vehicle claiming that there can be no liability cast on the owner of the said vehicle for reason of no negligence having been found on the driver of the vehicle. As was noticed, Section 163A does not have any reference to the negligence caused ## _**{2017(4) KLT 1093 (SC)[United India Insurance Co.Ltd.**_ _**v. Sunil Kumar]}**_ . The provision absolves the claimant from alleging or proving negligence on the part of any vehicle involved in an accident. 5. However, this does not absolve the owner of the vehicle who is the additional 6[th] respondent in the award. The additional 6[th] respondent despite notice has not appeared. 6. The respondents who were the claimants before the Tribunal would be entitled to seek execution of the liability cast on the owners of the bus and the Gypsy as also the owner of the bike, the MACA Nos.2073/2008 & 2311/2012 8 8[th] respondent in MACA 2073/2008. The KSRTC and the appellant in MACA 2311 of 2012 shall remit their share of the amounts awarded within a period of three months from the date of receipt of certified copy, failing which their interest liability shall stand increased to 12% from the expiry of the time specified herein. In such circumstance, MACA No.2073/2008 would stand allowed. MACA No.2311/2012 is rejected. No order as to costs. Sd/- **K. VINOD CHANDRAN, JUDGE.** **Jma/**