MACA NO. 401 OF 2011

MACA NO. 401 OF 2011 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 3[RD] DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943** ## **MACA NO. 401 OF 2011** **AGAINST THE JUDGMENT IN OPMV 437/2006 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL , MANJERI, MALAPPURAM** ## **APPELLANTS/PETITIONRS 2 TO 4 AND LEGL HEIRS OF 1ST PETITIONER:** |1|T.P.SAINABA, AGED 60 YEARS, W/O.P.ALI (LATE),| |---|---| ||EENTHUMKUZHIYIL HOUSE, CHEPLIKUNNU,, BLOCK ROAD,| ||POST KONDOTTY, MALAPPURAM DISTRICT.| |2|M.K.SHANIBA, AGED 26 YEARS| ||W/O.LATE P.BASHEER, EENTHUMKUZHIYIL HOUSE,,| ||CHEPLIKUNNU,BLOCK ROAD, POST KONDOTTY,, MALAPPURAM| ||DISTRICT.| |3|P.AMEER BASIL, 6 ½ YEARS| ||S/O.LATE P.BASHEER, (MINOR) REPRESENTED BY 3RD| ||APPELLANT MOTHER GUARDIAN M.K.SHANIBA.| |4|SARA, AGED 45 YEARS, D/O.P.ALI(LATE)| ||EENTHUMKUZHIYIL HOUSE, CHEPLIKUNNU, BLOCK ROAD,,| ||POST KONDOTTY, MALAPPURAM DISTRICT.| |5|JAMEELA, AGED 43 YEARS, D/O.P.ALI(LATE)| ||EENTHUMKUZHIYIL HOUSE, CHEPLIKUNNU, BLOCK ROAD,,| ||POST KONDOTTY, MALAPPURAM DISTRICT.| |6|SUBAIDA, AGED 41 YEARS, D/O.P.ALI(LATE)| ||EENTHUMKUZHIYIL HOUSE, CHEPLIKUNNU, BLOCK ROAD,,| ||POST KONDOTTY, MALAPPURAM DISTRICT.| |7|HAFSATH AGED 39 YEARS, D/O.P.ALI(LATE)| ||EENTHUMKUZHIYIL HOUSE, CHEPLIKUNNU, BLOCK ROAD,,| ||POST KONDOTTY, MALAPPURAM DISTRICT.| |8|RAZAK, AGED 30 YEARS S/O.P.ALI(LATE)| ||EENTHUMKUZHIYIL HOUSE, CHEPLIKUNNU, BLOCK ROAD,,| 2 MACA NO. 401 OF 2011 POST KONDOTTY, MALAPPURAM DISTRICT. 9 SALAM, AGED 27 YEARS S/O.P.ALI(LATE) EENTHUMKUZHIYIL HOUSE, CHEPLIKUNNU, BLOCK ROAD,, POST KONDOTTY, MALAPPURAM DISTRICT. 10 MANAF, AGED 25 YEARS S/O.P.ALI(LATE) EENTHUMKUZHIYIL HOUSE, CHEPLIKUNNU, BLOCK ROAD,, POST KONDOTTY, MALAPPURAM DISTRICT. BY ADV SRI.U.K.DEVIDAS ## **RESPONDENTS/RESPONDENTS:** 1 MANJUNATHAN, S/O.SUBRAMANI, NEW ROAD, ELAMPILLAI POST, SALAM DISTRICT,, TAMILNADU, PIN 637 502.(DRIVER). 2 K.MANICKAM, S/O.KANDASWAMY GOUNDER 1/17-13-P, EBINESAR COLONY, P.O.SANKARI,, SALEM DISTRICT, TAMILNADU-637301. (OWNER). 3 THE NATIONAL INSURANCE CO.LTD. BRANCH OFFICE, 1631-1/B, FIRST FLOOR,, SELAM BHAVANI MAIN ROAD, SANKAGIRI, SELAM,, TAMILNADU, PIN 637 301. (INSURER). R1 BY SRI.C.DILIP R3 BY SRI.RAJAN P.KALIYATH R2 BY SRI.SREELAL N.WARRIER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 401 OF 2011 3 ## **JUDGMENT** The appellants 1 to 3 were petitioners 2 to 4 and appellants 4 to 10 are the legal representatives of the deceased 1[st] petitioner before the Tribunal. The respondents in the appeal were respondents before the Tribunal. The parties are, for the sake of convenience, referred to as per the status before the Tribunal. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Peringodan Basheer (deceased), who was the son of the petitioners 1 and 2 and the husband of the 3[rd] petitioner and the father of the 4[th] petitioner. The petitioners had averred in the claim petition that; on 21.04.2005, while the deceased was engaged in unloading heavy glass bundles from a goods carriage vehicle bearing registration No.TN 30Y 2588 (lorry) a glass bundle fell on the deceased and he sustained grievous injuries. Although he was taken to the Medical MACA NO. 401 OF 2011 4 College Hospital, Kozikkode, he succumbed to injuries on the way to the hospital. The accident occurred out of the use of vehicle and due to the negligence of the 1[st] respondent, who had parked the vehicle in a steep and unfit place (front portion of the vehicle in upper level). It was due to the negligent parking that bundles fell over the deceased, while he was engaged in unloading the goods. The lorry was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The deceased was earning a monthly income of Rs.7,500/- as headload worker. The petitioners were dependents of the deceased. Hence, the petitioners claimed a compensation of Rs.6,00,000/- from the respondents, which was limited to Rs.5,00,000/- 3. The respondents 1 and 2 had filed a written statement contending that the vehicle was parked in a level place that was fit for parking. It was contended that the glass fell on the deceased due to his negligence. Hence, the claim petition be dismissed. 4. The 3[rd] respondent filed a written statement admitting that the lorry had a valid insurance coverage. MACA NO. 401 OF 2011 5 According to the 3[rd] respondent, no premium was collected to cover the risk of the employees either carried in the lorry or engaged in loading and unloading the goods from it. It was pointed out that the deceased was not employed by the 2[nd] respondent – insured. The Police had referred the case as that of an accidental death. There was no materials produced to substantiate that the accident occurred due to use of the vehicle. There was no rashness or negligence on the part of the 1[st] respondent. Therefore, the claim petition may be dismissed. 5. The petitioners produced and marked Exts.A1 to A4 in evidence. The 3[rd] respondent produced copy of the final report and marked it as Ext.B1 in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, dismissed the claim petition for the reason that there was no materials to prove that the deceased lost his life due to the use of the motor vehicle and there was no evidence to prove that the 1[st] respondent was negligent in using the vehicle. 7. Aggrieved by the dismissal, the petitioners are in MACA NO. 401 OF 2011 6 ## appeal. 8. Heard; Sri.U.K.Devidas, learned counsel appearing for the appellants/petitioners, Sri.C.Dileep, learned counsel appearing for the 1[st] respondent, Sri.Sreelal Warier, learned counsel appearing for the 2[nd] respondent and Sri.Rajan P. Kaliyath, learned counsel appearing for the 3[rd] respondent. 9. Sri.U.K.Devidas argued that the Tribunal has not appreciated the pleadings and materials on record in its proper perspective. He contended that there was sufficient evidence to prove that the deceased had lost his life, while unloading the materials from the lorry. He relied on the decisions of this Court in **New India Assurance Company Ltd. Vs. Laxmi** [2000 KHC 599], **Babu vs. Ramesan** [1995 KHC 300] and **Rajan P. vs. K.J. John and others** [2009 (1) KHC 631] to support his contentions. He submitted that in view of the law laid down by this Court in the aforesaid decisions, it is sufficient enough to prove that the deceased had lost his life while unloading the goods. More over, the Tribunal had in paragraph 9 clearly found that the accident MACA NO. 401 OF 2011 7 occurred on the platform of the vehicle, while it was in stationary, which is sufficient to hold the 1[st] respondent negligent and the 2[nd] respondent vicariously liable. Consequently the 3[rd] respondent is to indemnify the liability of the 2[nd] respondent. 10. Per contra, Sri. Rajan P. Kaliyath contended that the decisions relied on by the learned counsel appearing for the appellant are totally irrelevant and inapplicable to the facts and circumstances of the case because the elementary principle to be proved in a claim under Section 166 of the Motor Vehicles Act, is not proved i.e., the driver of the lorry was negligent. He placed reliance on the three Bench decision of the Honourable Supreme Court in **Lechoo Ram** **& Others vs. Himachal Road Transport Corporation** [2014 AIR SCW 1081] to canvass his position. He also contended that the Police after investigation had filed Ext.B1 final report finding that there was no negligence on the part of the 1[st] respondent, and the life of the deceased was lost due to an accidental cause. He submitted that there MACA NO. 401 OF 2011 8 was no error in the impugned award. Therefore the appeal may be dismissed. 11. The question that arises for consideration in the appeal is whether the dismissal of the claim petition is justifiable or not. 12. The specific case of the petitioners in the claim petition was that the deceased lost his life in an accident which happened out of the use of the lorry and due to the negligence of the 1[st] respondent who parked the lorry in a steep and unfit place. It is only because of the negligent parking of the vehicle that when the glass bundle, fell on the deceased. The petitioners had produced Ext.A1 copy of the FIR to prove that the deceased lost his life in an accident. However, the 3[rd] respondent produced Ext.B1 final report, to prove that the death was due to an accidental cause. 13. Even though the 3[rd] respondent had contended that no premium was collected to cover the risk of employees, either carried in the vehicle or engaged in loading and unloading of goods from the vehicle, the insurance policy was not produced. MACA NO. 401 OF 2011 9 ## 14. Section 147 of the Motor Vehicles Act, 1988, reads ## as follows: 147 Requirements of policies and limits of liability. — (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which— (a) is issued by a person who is an authorised insurer; and (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) **(i) against any liability which may be incurred by him in respect of the death of or bodily [injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;** **(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:** **Provided that a policy shall not be required—** **(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee—** (a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability. Explanation. —For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place. (2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability MACA NO. 401 OF 2011 10 incurred in respect of any accident, up to the following limits, namely:— (a) save as provided in clause (b), the amount of liability incurred; (b) in respect of damage to any property of a third party, a limit of rupees six thousand: Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier. (3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases. (4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe. **(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.** ## 15. Section 165(1) of the Motor Vehicles Act reads as ## follows: (1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereafter in this Chapter referred to as Claims Tribunal) **for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents** MACA NO. 401 OF 2011 11 ## **involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both.** Explanation.—For the removal of doubts, it is hereby declared that the expression “claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles” includes claims for compensation under section 164. (emphasis supplied) ## 16. This Court in **New India Assurance Co.Ltd vs.** **Lakshmi** (supra) interpreting Section 165 of the Motor Vehicles Act has held that the use of a motor vehicle includes the process of unloading of goods from a stationary vehicle. 17. Reading of section 147 of the Act establishes that the insurer is liable for death or bodily injury caused to any person including, the owner of the goods or its authorised representative carried in the vehicle, provided a policy shall not be required to cover the liability in respect of the death, arising out of and in the course of his employment, of the employee of such person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of employment other than a liability arising under the Workmen's Compensation Act. MACA NO. 401 OF 2011 12 18. Now, whether the deceased fell within the ambit of the above extracted provisions and the insurance policy also covered the deceased was not considered by the Tribunal. Importantly, the insurer had not produced the insurance policy, though it had taken a contention that no additional premium was collected to cover the risk of employees either carrying in the vehicle or engaged in the loading and unloading of goods. It is without looking into this vital aspect, that the Tribunal has gone to hold that the insurer was not liable to indemnify the insured, while the accident occurred on the platform of the lorry. 19. After a comprehensive re-appreciation of the rival contentions, pleadings, materials on record and the law referred to in the afore-cited decisions, I am of the definite opinion that there are cogent reasons and grounds warranting invocation of the power of this Court under Order XLI Rule 23 A of the Code of Civil Procedure, to remand the matter back to the Tribunal for fresh consideration. I adopt this course because I find that the Tribunal has not adverted to the substantial provisions in MACA NO. 401 OF 2011 13 the Act and the law laid down in the afore-cited precedents that too after adverting to the conditions in the insurance policy. 20. In the above compelling circumstances, to subserve the ends of justice and afford both sides a fair opportunity to substantiate their respective contentions, I hold that the impugned award is liable to be set aside, for the purpose of remitting the matter back to the Tribunal. In the result, I allow the appeal by setting aside the impugned award in OP(MV) No.437/2006 and remand OP(MV) No.437/2006 back to the Tribunal for fresh consideration in accordance with law and untrammeled by any observation in this judgment, after affording all the parties a further opportunity. The parties are at liberty to raise their respective contentions before the Tribunal, including adducing and producing additional evidence. The parties are directed to appear before the Tribunal on **11.10.2021** , either in person or through their counsel. As the claim petition is of the year 2006, the Tribunal shall MACA NO. 401 OF 2011 14 make every endeavor to dispose of the claim petition as expeditiously as possible. Registry is directed to forthwith transmit the LCR to the Tribunal. Sd/- **C.S.DIAS JUDGE** rkc