MACA NO. 2310 OF 2013 (K.V. Yacob, Susan, Soji v. Ajith, Vineeth P.S., Oriental Insurance Co. Ltd., United India Insurance Co. Ltd.)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` TUESDAY, THE 26[TH] DAY OF SEPTEMBER 2023 / 4TH ASWINA, 1945 ``` ## **`MACA NO. 2310 OF 2013`** ``` AGAINST THE AWARD DATED 29.06.2013 IN OP(MV) 470/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR ``` ## **`APPELLANT/(PETITIONER IN O.P.(M.V.) 470/07:`** ``` 1K.V. YACOB AGED 63 YEARS S/O.VARIATH, KOORAN HOUSE, NEDUVANNOOR KARA, CHOWARA P.O. ``` ``` 2SUSAN AGED 48 YEARS W/O. K.V. YACOB, KOORAN HOUSE, NEDUVANNOOR KARA, CHOWARA P.O. ``` ``` 3SOJI AGED 21 YEARS D/O. YACOB, KOORAN HOUSE, NEDUVANNOOR KARA, CHOWARA P.O. ``` ``` BY ADVS. SRI.V.K.GOPALAKRISHNA PILLAI SMT.ANUPAMA JOHNY SRI.REJI GEORGE ``` ## **`RESPONDENTS/RESPONDENTS IN OP(MV) 470/07:`** - `1 AJITH, HOUSE NO.2174, WARD 40, AKSHAY KOCHUPALLY LINE, PALARIVATTOM, KOCHI-682 025.` - `2 VINEETH P.S., S/O. SASI, PALLIKONATH HOUSE, NEAR VETENARY HOSPITAL, POWER HOUSE JN, ALUVA-683 101.` - `3 ORIENTAL INSURANCE CO. LTD, DEEPTHI BUILDING, PALLIMUKKU, OPPOSITE TO KOCHIN HOSPITAL, M.G. ROAD, ERNAKULAM-682 016.` - `4 UNITED INDIA INSURANCE CO. LIMITED, PUTHUSSERY COMPLEX, GOVERNMENT HOSPITAL JUNCTION, ALUVA-683 101.` ``` 2 ``` ## **`MACA NO. 2310 OF 2013`** ``` BY ADVS. SRI.P.K.SAJEEV SRI.GEORGE CHERIAN SR. SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI ADV.GEORGE A.CHERIAN ADV.LATHA SUSAN VARGHESE ADV.P.K. MANJOKUMAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2310 OF 2013 ``` ``` 3 ``` ## **`JUDGMENT`** The appellants are the petitioners in O.P.(M.V.) No.470/2007 on the files of the Motor Accident Claims Tribunal, Perumbavoor. The said claim petition was submitted by the appellants under Section 163A of the Motor Vehicles Act seeking compensation for the death of one Jisso in a motor accident that occurred on 05.01.2007. 2. According to the appellants, the accident occurred when the motorcycle ridden by the deceased Jisso, carrying a pillion rider, was hit by a Maruti car bearing Registration No.KL 9 M 8174 driven by the 2[nd] respondent herein. The said vehicle was owned by the 1[st] respondent and was insured by the 3[rd] respondent in the claim petition. The 4[th] respondent is the insurer of the motorcycle on which the deceased was travelling. Due to the injuries sustained, he died, and claiming compensation, the aforesaid application was submitted. 3. The 1[st] and 2[nd] respondents remained ex parte. The 3[rd] respondent submitted a written statement, contending that the car ``` MACA NO. 2310 OF 2013 ``` ``` 4 ``` was not covered with a valid insurance policy as the cheque issued by the 2[nd] respondent towards the premium got dishonoured. Therefore, the 3[rd] respondent cancelled the policy and intimated the said aspect to the 1[st] respondent. Therefore, they seek exoneration from the liability. It was also contended by the Insurance Company that the incident in which the death occurred was not an accident due to any negligence, but it was a planned murder and in connection with the same, the Police charge-sheeted the 2[nd] respondent for the offences punishable under Section 307 and 302 read with Section 34 of IPC. 4. The evidence in this case consists of the oral evidence of PWs 1 and 2 and Exts.A1 to A6 from the side of the appellants. The case diary in Crime No.22/2007 of Aluva Police Station, which was registered in connection with the incident, was produced as Ext.X1 series. From the side of the respondent, RW1 was examined, and Exts.B1 to B7 were marked. After examining the materials placed, the Tribunal dismissed the said application. This appeal is submitted in such circumstances, challenging the same. ``` MACA NO. 2310 OF 2013 ``` ``` 5 ``` 5. Heard Smt.Anupama Johny, learned counsel appearing for the appellants, Smt. Latha Susan Cherian, learned counsel appearing for the 3[rd] respondent Insurance Company and Sri.P.K. Manjokumar, learned counsel appearing for the 4[th] respondent Insurance Company. Even though notices were served on the 1[st] and 2[nd] respondents, there is no appearance for them. 6. The main contention put forward by the learned counsel for the appellants is that the dismissal of the claim petition was not at all legally sustainable. It was pointed out that the Tribunal dismissed the said application on the reason that the death of the deceased was not due to an accident but was a planned murder. On the other hand, the learned counsel appearing for the 3[rd] respondent Insurance Company would oppose the contention raised by the appellants in this regard by pointing out that, since it has come out in the evidence of PW2 that it was committed by the 2[nd] respondent, who is now facing trial for the offences under Section 302 and 307 of IPC, no interference is warranted in the finding entered by the Tribunal. ``` MACA NO. 2310 OF 2013 ``` ``` 6 ``` 7. I have carefully gone through the records. The first aspect to be noticed in this regard is that this is a claim petition submitted under Section 163A of the Motor Vehicles Act, where the question of negligence is not at all material. The only requirement for entertaining an application under Section 163A is that the accident must have occurred arising out of the use of the motor vehicle. The learned counsel for the 3[rd] respondent Insurance Company would specifically contend that, since it was a planned murder, it cannot be treated as an accident. In response to the said contention, the learned counsel for the appellants would rely upon the decision rendered by this Court in **New India Assurance Company Limited v. Kamalamma** [2012 (4) KLT 84]. In paragraph 7 of the said decision, it was observed as follows: _“7. It is relevant to note that the word 'accident' is not defined anywhere in the Act. The meaning of the word 'accident' as per Oxford Dictionary is 'an unpleasant event that happens incidentally and causes damage, injuries etc.' The basis of the claim petitions arising out of the use of motor vehicles is essentially_ ``` MACA NO. 2310 OF 2013 ``` ``` 7 ``` _'negligence'. In law of tort, the word 'negligence' is understood either as the state of mind of a party in doing an act or as a conduct, which the law deems wrongful. Now a days negligence has become an independent, specific tort in itself. To decide whether a man is guilty of negligent conduct or not, Courts shall not be guided only by his mental attitude at the moment of the act. An external standard of a reasonable man placed in similar circumstances has to be applied to arrive at the conclusion. The pertinent question to be answered is whether a reasonable man placed in similar circumstances as the alleged wrong doer would have acted in that way to cause damage to the claimant? If the answer is 'no', he should be held liable. There is a valid reason for adopting such a course of action. If the wrong doers are permitted to set up their individual state of mind as a defence, it would be easy for them to wriggle out of the liability of paying compensation. That is why, Winfield has defined 'negligence' as a tort, as the breach of legal duty to take care, which results in damage, undesired by the defendant to the plaintiff.”_ Thus, it is seen that, the accident is defined as an unpleasant event that happens incidentally and causes damages, injuries, etc. Besides ``` MACA NO. 2310 OF 2013 ``` ``` 8 ``` the same, it is to be noted that when trying to understand the meaning of an accident with reference to an application for compensation, the said issue has to be approached from the point of view of the victim/deceased. As far as the victim/deceased is concerned, it was an unexpected incident, which he never anticipated and therefore, irrespective of the question whether it was a planned one by the culprit or a negligent act by a tortfeasor, is not at all relevant. This is particularly so, when the proceeding is one under Section 163A of the Motor Vehicles Act where the question of negligence need not be considered. As mentioned above, what is relevant is whether it is an accident ‘arising out of the use of motor vehicle’. As observed above, as far as the victim/deceased is concerned, it was an accident being an untoward incident which he never expected, and since the same has arisen out of the use of a motor vehicle, the application has to be maintained and, therefore, the irresistible conclusion possible is that the finding entered by the Tribunal in this regard is not legally sustainable. 8. Even otherwise, on going through the contents of the ``` MACA NO. 2310 OF 2013 ``` ``` 9 ``` deposition of PW2 also, I am of the view that this was not at all a preplanned murder. Evidence of PW2 would indicate that, while the deceased and PW2 were travelling on a motorcycle, some altercation took place between the 2[nd] respondent, who was driving the car and consequent to the same, the 2[nd] respondent got infuriated and followed the motorcycle and hit on the same. Of course, it is true that, after initially hitting the motorcycle, he reversed the car and hit the deceased again. From the facts and circumstances under which the incident occurred, it is evident that it was a road rage incident, and there was no pre-planning. Evidently, the parties did not have a mutual acquaintance as well. The incident occurred due to a sudden provocation from exchanging words between the parties. Therefore, on that ground also, I am of the view that the incident has to be treated as an accident for the purpose of a claim petition under Section 163A of the Motor Vehicles Act. 9. When moving on to the question of the quantum of compensation, it is to be noted that since it is an application under Section 163 A of the Motor Vehicles Act, the structured formula as ``` MACA NO. 2310 OF 2013 ``` ``` 10 ``` contemplated under the Second Schedule of the Motor Vehicles Act is to be adopted. The monthly income claimed is Rs.3000/- and in the facts and circumstances of the case, I am of the view that the said claim as such can be accepted. The deceased was aged 19 years, and therefore, as per the Second Schedule, the amount to be fixed is Rs.6,84,000/- and after deducting 1/3[rd] of the said amount, the compensation receivable by the appellants would come to Rs.4,56,000/-. In addition to the same, as per the second schedule of the Motor Vehicles Act, 1988 (prior to amendment), an amount of Rs.2,000/- is to be awarded towards funeral expenses, Rs.5,000/towards ‘loss of consortium’ and a further some of Rs.2,500/towards ‘loss of estate’. Thus, the total compensation receivable by the appellants would come to Rs.4,65,500/-. 10. The learned counsel for the 3[rd] respondent Insurance Company also raised a contention that there was no policy for the vehicle, since the cheque submitted towards the premium of the policy got dishonourned. However, it is discernible from the records, particularly Exts.B1 and B2, that the cheque was ``` MACA NO. 2310 OF 2013 ``` ``` 11 ``` dishonoured by the Bank on 25.11.2006, and the notice was issued by the 3[rd] respondent Insurance Company to the registered owner on 10.01.2007. The accident occurred in this case on 05.01.2007. Thus, it is evident that the incident occurred even before the policy was cancelled, and the intimation in this regard was sent to the insured. Therefore, as on the date of the accident, the policy was valid. Thus, the Insurance Company cannot seek exoneration from the liability. However, it is pointed out by the learned counsel for the appellants by placing reliance upon Ext.B7 common award passed in the claim petitions arising from the very same incident that the right of recovery was granted by the Tribunal in all those cases and the same has become final as well. Thus, in the light of the above observations and findings, the award dated 29.06.2013 passed by the Motor Accident Claims Tribunal, Perumbavoor in O.P.(M.V) No.470/2007 is hereby set aside, and it is held that the respondents 1 to 3 are jointly and severally liable to pay compensation of Rs.4,65,500/- ( Rupees four lakhs sixty five thousand and five hundred only) to the appellants ``` MACA NO. 2310 OF 2013 ``` ``` 12 ``` herein. The said amount shall be deposited by the 3[rd] respondent Insurance Company with interest @ 7.5 % per annum from the date of petition till realization, and after satisfying the award, it shall be open for the 3[rd] respondent Insurance Company to recover the said amount from the 1[st] respondent, by executing the said award. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs