MACA No. 907 of 2011: National Insurance Co. Ltd. v. Kadeejumma and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE BASANT BALAJI`** ``` FRIDAY, THE 10[TH] DAY OF JUNE 2022 / 20TH JYAISHTA, 1944 ``` ## **`MACA NO. 907 OF 2011`** ## **`OPMV 499/2006 OF DISTRICT COURT & SESSIONS & MOTOR ACCIDENT`** ## **`CLAIMS TRIBUNAL,KASARAGOD`** ## **`APPELLANT/S:`** ``` NATIONAL INSURANCE CO.LTD KASARAGOD, REP. BY THE MANAGER,, KOCHI REGIONAL OFFICE, M.G.ROAD,, ERNAKULAM, COCHIN-35. BY ADV SRI.E.M.JOSEPH ``` ## **`RESPONDENT/S:`** - `1 KADEEJUMMA,AGED 64, W/O.LATE ABDUL KHADER,, R/AT CHEMBARAPU HOUSE, KARUVAPADY VILLAGE, P.O.KANYANA, BANTWAL TALUK, KARNATAKA-574 279.` - `2 BAVAKUNHI AGED 23 S/O.KADEEJUMMA, R/AT CHEMBARAPU HOUSE,, KARUVAPADY VILLAGE, P.O.KANYANA,, BANTWAL TALUK, KARNATAKA574 279.` - `3 ABDULLA KUNHI,S/O.IBRAHIM, JEEPU AMEER COMPOUND,, MANGALORE-575 001. * (DELETED)` - `4 THE BRANCH MANAGER THE ORIENTAL INSURANCE COMPANY LTD.,, BRANCH OFFICE, CITY POINT BUILDING,, PRESS CLUB JUNCTION, M.G.ROAD,, KASARAGOD-671 315.` - `5 BADARUDDIN.P.H.,S/O.HASSAINAR, ANGOLI HITHALU,, ANGALAR, THALAPADY, MANGALORE-575 001. * (DELETED) * RESPONDENTS 3 AND 5 ARE DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 21/12/2021 IN I.A 1/2021.` - `BY ADVS.` ``` SRI.M.S.IMTHIYAZ AHAMMED SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. SRI.SHIRAZ ABDULLA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 907 OF 2011 ``` -2- ## **JUDGMENT** (Dated this the 10[th] day of June 2022) The 4[th] respondent in O.P.(M.V.) No.499 of 2006 on the files of the Motor Accidents Claims Tribunal, Kasaragod is the appellant herein. The claimants therein are respondent Nos.2 and 3 herein. 2. The appellants filed petition under 163A of the Motor Vehicles Act. The first petitioner is the mother and second petitioner is the brother of deceased Abdul Razak. On 8.1.2003 deceased Abdul Razak was riding a motor cycle bearing Reg.No.KA 20H 6635 from Bayar to Manjeshwar. When the vehicle reached at Bayikatta Palla in Paivalika villlage, the vehicle collided with another motor bike with Reg.No.KA 19E 6489 and due to the ``` MACA NO. 907 OF 2011 ``` collusion deceased Abdul Razak sustained serious injuries. Immediately he was taken to the hospital and he breathed his last on 9.1.2003 at 1.10 pm. Crime 7/2003 was registered by Manjeswar police station alleging that Abdul Razak was driving the vehicle in a rash and negligent manner. Respondent Nos.1 and 3 are the owners of the vehicle involved in the incident and respondent Nos.2 and 4 are the insurers. They claimed Rs.5,00,000/- for the death of Abdul Razak. 3. Respondent Nos.1 and 3 were remained ex-parte. The respondent Nos.2 and 4 filed written statements. The 2[nd] respondent, in his written statement, contended that Motor Cycle with Reg.No.KA 19E 6489 was insured with 2[nd] respondent at the relevant time. The negligence on the ``` MACA NO. 907 OF 2011 ``` -4- part of the vehicle Reg.No.KA 19E 6489 was denied. It was contended that Abdul Razak drove the vehicle on the wrong side of the road in a rash and negligent manner and the accident happened due to his negligence. So respondent Nos.3 and 4 are liable to compensate. 4. Crime No.7/2003 was registered by the Manjeswar Police under sections 279, 337 and 304 IPC. Hence, respondent Nos.1 and 2 are not liable to pay any compensation to appellants. 5. In the written statement filed by 4[th] respondent, it was admitted that the motor cycle with Reg.No.KA 20H 6635 was insured with them. It was contended that the policy issued by 4[th] respondent could not cover the risk of rider of the motor cycle. It covers only 3[rd] party risk and ``` MACA NO. 907 OF 2011 ``` -5- deceased Abdul Razak being the driver of the motor cycle, the 4[th] respondent is not liable to indemnify with the owner of the motor cycle. One of the issue raised by the Tribunal is “who is liable to pay compensation to the petitioners?”. The Tribunal, on the said issue came to a finding that since the claim is under section 163A of the Motor Vehicles Act, the negligence need not be proved and since Ext.B1 insurance policy is a comprehensive one covering the risk of any occupant of the vehicle, the contention raised by 4[th] respondent cannot be accepted and that since the insurers of both the vehicles involved in the accident have conceded that accident arose out of the use of the Motor Vehicles, respondent Nos.2 and 4 are liable to compensate the petitioners in equal proportion. Aggrieved by the said ``` MACA NO. 907 OF 2011 ``` finding, this appeal is filed by the 4[th] respondent. 6. The counsel for the appellant, Adv.Shri E M Joseph submits that in a claim under Section 163A of the Motor Vehicles Act, though the negligence aspect is foreign, the deceased being the driver of the motor cycle cannot make a claim against the insurer of the same vehicle as it would be a claim by the driver against the owner of the same vehicle. He would also contend that the Tribunal has not gone into the fact that though Ext.B1 policy is a comprehensive one, the rider of the vehicle is not covered by the said policy. In that case, a claim will not lie against the appellant. Moreover he relied on a decision of the honourable Apex Court reported in **Ramkhiladi and another v. United India Insurance Company and** ``` MACA NO. 907 OF 2011 ``` **another (AIR 2020 SC 527)** to contend that provisions under Section 163A of the Motor Vehicles Act cannot be said to have application with regard to an accident wherein the owner of the motor vehicle himself is involved and as per the terms and conditions of the contract of insurance, the Insurance Company shall be liable to pay the compensation to the 3[rd] party and not to the owner. The counsel further submits that the finding entered by the Tribunal as to the question who is liable to pay the compensation has not been considered in the right perspective and hence, the finding of the said issue has to be set aside. The counsel for the appellant further submits that it is true that as far as the claim under 163A of the Motor Vehicles Act is concerned, the claimants are not ``` MACA NO. 907 OF 2011 ``` -8- expected to prove negligence. But the police have registered a case against the deceased as Crime No.7/2203 under sections 279, 337 and 304 IPC on the basis that the deceased was riding the motor cycle in a rash and negligent manner and due to his negligence that he succumbed to the injuries. Hence, the claim cannot be raised against the appellant herein, being the insurer of the vehicle in which the deceased was riding. Hence he prayed for setting aside the award of the Tribunal fixing liability at 50%. 7. The counsel for the respondent Nos.1 and 2 submit that though there was an order by this court to comply with the directions in the award, the appellant has not deposited 50% of the total compensation and hence, a direction be issued to the appellants to deposit the amount immediately. ``` MACA NO. 907 OF 2011 ``` It was also submitted that the dispute is between the Insurance Companies of both the vehicles and he is the most aggrieved person as the amount of compensation is not disbursed to the claimants. ## 8. Heard. 9. It is seen from the award of the Tribunal that though the Tribunal has raised issue no.4 as to who is liable to pay compensation, the said issue has been answered in a casual manner without adverting to the contentions raised by the appellant to the fact that there is no policy to cover the rider of the motor cycle insured by the appellant and that the liability was fixed on the appellant only for the reason that the policy was a comprehensive one. I am afraid that the finding of the tribunal is without taking into ``` MACA NO. 907 OF 2011 ``` -10- consideration the contention raised by the appellant herein in its correct perspective. Accordingly, I am of the opinion that the award of the Tribunal in respect of issue No.4 alone can be set aside and remand for fresh consideration. As far as the issues Nos.1 to 3 are concerned, the finding of the Tribunal deserves no interference. In the result, the appeal is allowed in part. The finding of the tribunal in respect of issue no.4 is set aside and remitted to the tribunal for fresh consideration in the light of the decision of the honourable Apex Court in **Ramkhiladi (supra).** The appellant is also directed to deposit the compensation ordered by the Tribunal within 2 months from today and the Tribunal is directed to dispose of O.P.(M.V.) No.499 of 2006 as ordered above, within six ``` MACA NO. 907 OF 2011 ``` -11- months from date of receipt of the judgment. The parties are directed to appear before the Tribunal on 27.6.2022. sd **BASANT BALAJI, JUDGE** _dl/_