MACA No.1085/2009 & MACA No.2847/2009 (John Rhymcond v. R. Rajesh and others)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 30TH DAY OF MARCH 2021 / 9TH CHAITHRA, 1943** ## **MACA.No.1085 OF 2009** **AGAINST THE AWARD IN OPMV 870/2002 DATED 19-11-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,NEYYATTINKARA** ## **APPELLANT/CLAIMANT:** **JOHN RHYMCOND S/O.STEPHEN, GINU BHAVAN, MULLILAVUVILA, KIUDAYAL P.O.,, THIRUVANANTHAPURAM DISTRICT. - *DIED** ***IT IS RECORDED THAT APPELLANT DIED AND ADDITIONAL APPELLANT No.2.** ***Addl.A2 THANGABAI, WIFE OF LATE STEPHEN. C. AGED 70 YEARS, RESIDING AT DOOR NO.11-153, ALUNIRKUM VILAI, MELPALAI, EDAICODE P.O., DEVICODE VILLAGE, KANYAKUMARI TALUK-695504** ***AS SOLE LEGAL HEIR OF DECEASED APPELLANT IS IMPLEADED AS ADDITIONAL APPELLANT VIDE ORDER DATED 30.3.2021 IN I.A.NO.3/2021 IN M.A.C.A.1085/2009** ## **BY ADV. SRI.G.SUDHEER** ## **RESPONDENTS/RESPONDENTS:** **1 R.RAJESH, S/O.RAMAKRISHNAN, KOTTARAKKONAM, MALAICODE, EDAICODE P.O.,, K.K.DISTRICT (OWNER OF MOTOR CYCLE).** - **2 JOHN BOSCO S/O.GABRIEL KIZHAKKETHOTTAM VEEDU, DEVICODE, MELPALAI P.O.,, K.K.DISTRICT (DRIVER OF MOTOR CYCLE).** - **3 THE DIVISIONAL MANAGER NATIONAL INSURANCE CO.LTD., THIRUVANANTHAPURAM, (INSURER OF MOTOR CYCLE).** M.A.C.A.Nos.1085/2009 & 2847/2009 2 **ADDLR4 ELSI MARSHAL, WO.JOSEPH MARSHAL 28/85, B1, RAJNA FERIS, MULAGUMODU P.O., K.K. DISTRICT (OWNER OF LORRY).** **ADDL.R5 JOHN S/O.SABARI ANANDAN PUTHUVILA VEEDU, KOZHIKODE, K.K.DISTRICT, (DRIVER OF LORRY).** **R1 BY ADV. SRI.P.JAYASANKAR R1, R3 BY ADV. SRI.PMM.NAJEEB KHAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30.03.2021, ALONG WITH MACA.2847/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.Nos.1085/2009 & 2847/2009 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 30TH DAY OF MARCH 2021 / 9TH CHAITHRA, 1943** ## **MACA.No.2847 OF 2009** ## **AGAINST THE AWARD IN OPMV 870/2002 DATED 19-11-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,NEYYATTINKARA** ## **APPELLANT/3RD RESPONDENT IN O.P.(MV) NO.870/02:** **THE DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LTD.,, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGER,, KOCHI REGIONAL OFFICE, OMANA BUILDINGS, JEWS, STREET, PADMA JUNCTION, KOCHI-682 035.** **BY ADVS. SRI.LAL GEORGE SMT.ANN SUSAN GEORGE** ## **RESPONDENTS:CLAIMANT AND THE RESPONDENTS IN O.P.(MV) NO.870/02.** |**1**|***JOHN RHYMCOND**| |---|---| ||**GINU BHAVAN, MULLILAVUVILA, KUDAYAL P.O.,,**| ||**THIRUVANANTHAPURAM DISTRICT. - *DIED LEGAL HEIRS**| ||**IMPLEADED)**| |**2**|**R.RAJESH S/O.RAMAKRISHNAN**| ||**KOTTARAKKONAM, MALAICODE, EDAICODE P.O.,,**| ||**K.K.DISTRICT.**| |**3**|**JOHN BOSCO S/O.GABRIEL**| ||**KIZHAKKEGHOTTAM VEEDU, DEVICODE, MELPALAI P.O.,**| ||**K.K.DISTRICT.**| |**4**|**ELSI MARSHAL W/O.JOSEPH**| ||**MARSHAL 28/85, B1, RAJNA FERIS,, MULAGUMOODU P.O.,**| ||**K.K.DISTRICT.**| |**5**|**JOHN, S/O.SABARI ANANDAN**| ||**PUTHUVILA VEEDU, KUZHIKKODE, K.K.DISTRICT.**| M.A.C.A.Nos.1085/2009 & 2847/2009 4 ***ADDL.R6 THANGABAI, WIFE OF LATE STEPHEN. C.** **AGED 70 YEARS, RESIDING AT DOOR NO.11-153, ALUNIRKUM VILAI, MELPALAI, EDAICODE P.O., DEVICODE VILLAGE, KANYAKUMARI TALUK-695504 AS LEGAL HEIR OF DECEASED RESPONDENT NO.1 IS IMPLEADED AS ADDL.R6 VIDE ORDER DATED 30.3.2021 IN I.A.NO.1/2021 IN M.A.C.A.2847/2009** **R1 BY ADV. SRI.G.SUDHEER** **OTHER PRESENT:** **SRI.PMM.NAJEEB KHAN, SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30.03.2021, ALONG WITH MACA.1085/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.Nos.1085/2009 & 2847/2009 5 ## **P.V.KUNHIKRISHNAN, J.** -------------------------------M.A.C.A.Nos.1085/2009 & 2847/2009 ------------------------------Dated this the 30[th] day of March, 2021 ## **JUDGMENT** These two appeals are connected and therefore, I am disposing these appeals by a common judgment. M.A.C.A. No.2847/09 is filed by the third respondent in O.P.(MV) No. 870/02 on the file of the Motor Accidents Claims Tribunal, Neyyattinkara. M.A.C.A. No.1085/09 is filed by the petitioner in the above claim petition. (Hereinafter, the parties are mentioned in accordance to their rank before the Tribunal). 2. The short facts are like this: The claim petition was originally filed under Section 166 of the Motor Vehicles Act and was later, amended as an application under Section 163-A of the Motor Vehicles Act. On 4.4.2002 at 11 p.m., while the petitioner was travelling as pillion rider of the motorcycle M.A.C.A.Nos.1085/2009 & 2847/2009 6 bearing registration No.TN-74-B-9053 along the MelpalaiMarthandam public road and upon reaching Chemmamkkala, the same dashed against the rear side of a lorry, which was overtaking the motorcycle and thereby the applicant sustained serious injuries. A case was registered as crime No.334/02 in connection with the accident. The first respondent is the owner of the motorcycle. The second respondent is the rider of the said motorcycle. The third respondent is the insurer. The petitioner claimed compensation under Section 163-A of the Motor Vehicles Act. 3. To substantiate the case, Exts.A1 to A16 were marked on the side of the petitioner. Ext.B1 is the copy of the insurance policy. The petitioner himself was examined as PW1. After going through the documents and evidence, the Tribunal passed an award in favour of the petitioner for Rs. 2,73,373/with interest at the rate of 7.5% p.a from the date of petition till realisation. The third respondent is directed to pay the amount. Aggrieved by the above award, the third respondent M.A.C.A.Nos.1085/2009 & 2847/2009 7 filed M.A.C.A.2847/2009 and the petitioner filed M.A.C.A.No.1085/2009. I will consider both these appeals separately. ## **M.A.C.A.No.2847/2009** 4. This is an appeal filed by the third respondent challenging the liability fixed by the Tribunal on the Insurance Company. The counsel for the appellant submitted that as evident by Ext.B1 policy, it is an 'Act only policy'. The petitioner also conceded that it is only an Act only policy. In such circumstances, in the light of the decision in **New India Assurance Company Ltd., V. Daisy Paul (2021 (2) KHC 449** ), in an Act only policy, there cannot be even a direction to the Insurance Company to pay the amount and thereafter allow the Insurance Company to recover the amount. Relevant portion of the judgment in **New India Assurance Company** 's case (supra) is extracted hereunder .- “17. On an overall re-appreciation of the facts, Sections 147 and 149 of the Act and the aforecited precedents, I am of the definite opinion that the law laid by the three Judge Bench in Asha Rani, and Tilak Singh, that a ‘Statutory Policy’ only covers death or bodily injury of a M.A.C.A.Nos.1085/2009 & 2847/2009 8 third party falling within the sweep of Section 147 of the Act, is squarely applicable to the facts of the present case. Therefore, as additional premium was admittedly not paid to cover the first respondent, I have no hesitation to hold that the first respondent was a gratuitous passenger and was not covered by Exhibit B-1 policy. Hence, the impugned award directing the appellant to pay compensation to the first respondent is erroneous and is liable to be set aside.” 5. In the light of the above decision, there cannot be any direction to the third respondent who is the appellant in M.A.C.A. No.2847/09 to pay the amount and thereafter recover the amount from the owner of the vehicle. Therefore, M.A.C.A. No.2847/09 is to be allowed. ## **M.A.C.A.No.1085/2009.** 6. This is an appeal filed by the petitioner challenging the quantum of compensation. The counsel submitted that the monthly income of the injured was taken as Rs.2,000/- when the claim was Rs.3,300/-. The counsel submitted that the accident occurred on 4.4.2002. The counsel relied on the judgment of the Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd.,(2011 (13) SCC 236)** also. Considering the dictum laid down in the above M.A.C.A.Nos.1085/2009 & 2847/2009 9 decision, this Court can safely conclude that the petitioner will be getting an amount of Rs.3,300/- per month. Admittedly, he was a driver by profession. Therefore, the monthly income fixed by the Tribunal is to be refixed as Rs.3,300/-. Consequently, there will be change in the compensation for the permanent disability in the following manner. Rs.39,600x40/100x17 = Rs.2,69,280/-. From the above amount, the compensation already granted by the Tribunal in this head is to be deducted. Then the balance amount will be Rs.2,69,280-Rs.1,63,200=Rs.1,06,080/-. Therefore, the petitioner is entitled an enhanced compensation of Rs.1,06,080/with interest at the rate of 7.5% p.a from the date of petition till realisation. The Tribunal found that both the vehicles are involved in this accident and therefore, the first and fourth respondents in O.P.(MV) No. 870/2002 are directed to pay the above amount jointly and severally. 7. Therefore, these appeals are disposed of in the following manner. (i) M.A.C.A. No.2847/09 is allowed. The direction in the impugned award to pay the compensation amount by the M.A.C.A.Nos.1085/2009 & 2847/2009 10 appellant/third respondent to the petitioner is set aside and the first and fourth respondents in O.P.(MV) No.870/02 are directed to pay the compensation awarded by the Tribunal jointly and severally. (ii) M.A.C.A. No.1085/2009 is allowed in part. The impugned award is modified. The additional second appellant is entitled an enhanced compensation of Rs.1,06,080/- with interest at the rate of 7.5% p.a from the date of petition till realisation. The first and fourth respondents in O.P.(MV) No. 870/2002 are directed to pay the above amount jointly and severally. Sd/- ## **P.V.KUNHIKRISHNAN, JUDGE** al/-+