MACA Nos. 2721 & 3008 of 2008

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **FRIDAY, THE 2ND DAY OF DECEMBER 2016/11TH AGRAHAYANA, 1938** ## **MACA.No. 2721 of 2008 ( )** **-------------------------AGAINST THE AWARD IN OPMV 786/2003 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA DATED 12-05-2008** ## **APPELLANT(S)/PETITIONERS IN OPMV:** **--------------------------------** ## **1. JOSE U.J., S/O.U.I.JOSEPH,** **MADATHIPARAMBIL UKKEN HOUSE, EDAKULAM DESOM,, POOMANGALAM VILLAGE, EDAKKULAM P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** ## **2. MATHEW U.J., S/O.U.I.JOSEPH,** **MADATHIPARAMBIL UKKEN HOUSE, EDAKULAM DESOM,, POOMANGALAM VILLAGE, EDAKKULAM P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** ## **3. PAULSON U.J., S/O.U.I.JOSEPH,** **MADATHIPARAMBIL UKKEN HOUSE, EDAKULAM DESOM, POOMANGALAM VILLAGE, EDAKKULAM P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** ## **4. SHYLA JOSE, D/O.U.I.JOSEPH,** **MADATHIPARAMBIL UKKEN HOUSE, EDAKULAM DESOM, POOMANGALAM VILLAGE, EDAKKULAM P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** ## **5. JAINY GEORGE, D/O.U.I.JOSEPH,** **MADATHIPARAMBIL UKKEN HOUSE, EDAKULAM DESOM, POOMANGALAM VILLAGE, EDAKKULAM P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** ## **6. SHELSY JONES, D/O.U.I.JOSEPH,** **MADATHIPARAMBIL UKKEN HOUSE, EDAKULAM DESOM, POOMANGALAM VILLAGE, EDAKKULAM P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** ## **BY ADVS.SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENT(S)/RESPONDENTS IN OPMV:** **----------------------------------** **1. P.P.BAIJU, S/O.P.V.VARGHESE, PARAMBY HOUSE, KARUKUTTY P.O.** **2. NATIONAL INSURANCE CO.LTD., SREE NARAYANA TOURIST BUILDINGS,, OPP.PRIVATE BUS STAND, EAST NADA,, GURUVAYOOR - 680 101.** ## **R2 BY ADV. SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02-12-2016, ALONG WITH MACA. 3008/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SHG** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.Nos.2721 & 3008 of 2008** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 2[nd] day of December, 2016** ## **J U D G M E N T** ## **Ravikumar, J.** These appeals arise from a common award dated 12.5.2008 passed by the Motor Accidents Claims Tribunal, Irinjalakuda in O.P.(M.V.)Nos.786/2003 and 1640/2003 that germinated from the same occurrence. A collision between a car and an autorickshaw led to the filing of the said claim petitions. In the accident, the driver of the car viz. Fr. Dr. Wilson Ukken sustained injuries and succumbed to the injuries. His siblings filed O.P.(M.V.)No.786/2003 seeking compensation for his death and the said application was filed under Section 163A of the M.V.Act. The car which involved in the accident belonged to the brother of the deceased viz. Jose U.J. He filed O.P.(M.V.)No.1640/2003 seeking compensation for the damage sustained to the said car. The said application was filed under Section 166 of the M.V. Act. The tribunal conducted a joint enquiry and M.A.C.A.Nos.2721 & 3008 of 2008 2 passed the aforementioned common judgment on 12.5.2008. The tribunal on appreciation of the evidence on record held:- “but in this case it is practically admitted fact that the accident was caused by the deceased himself. But the legal representatives opted to claim compensation from the owner-cum-driver of autorickshaw involved in the accident”. Further it was held that “if the injured or the legal representatives of the deceased claim compensation from some other innocent persons, that will defeat the provisions of the law and the intent and purport of Section 163(A) of the M.V. Act. In short the petitioners in O.P.(M.V.)786/2003 can realise compensation even under Section 163(A) of the M.V.Act without enquiry into the reason for the accident, only from the owner of the car involved in the accident or driven by the deceased, or from the insurance company of the car as the case may be and they cannot at all be allowed to proceed against the other driver who was quite innocent and who had not in any manner contributed to the accident”. Evidently after arriving at such a conclusion and M.A.C.A.Nos.2721 & 3008 of 2008 3 holding that the owner of the car was not a party to the proceedings before the tribunal it was held that the claimants in O.P.(M.V.)No.786/2003 who are the siblings of deceased Fr. Dr. Wilson Ukken are not entitled to seek compensation. Consequently, the said application was dismissed. It is to be noted that based on the finding that in an application under Section 163A the question of negligence need not be looked into the tribunal virtually, went on to assess the compensation but, but then held that the appellants/claimants were not entitled to get it from the owner, driver and insurer of the autorickshaw and taking into account the failure on the part of the claimants to make the owner and insurer of the car are parties it was held that they are not entitled to get the compensation assessed. In view of the finding as aforesaid in O.P.(M.V.)No.786/2003 the tribunal held that the claimants in O.P.(M.V.) No.786/2003 is not entitled to get compensation. Consequently the said application was also dismissed. Virtually it was held that the claimant therein is the owner M.A.C.A.Nos.2721 & 3008 of 2008 4 of the vehicle involved in the accident and since the driver of the said vehicle was responsible for the accident he cannot claim compensation for the damage. Precisely the tribunal assigned the following reasons: “Being a property damage claim u/s. 166 of the M.V.Act the petitioner cannot get compensation from somebody else or from the insurance company of the other vehicle, in view of the fact that his own driver was responsible for the accident, or his own driver caused damage to his vehicle. Thus O.P.(M.V.) No.1640/2003 is also liable to be dismissed.” It is feeling aggrieved by the aforesaid judgment and common award that the captioned appeals have been filed. 2. We have heard the learned counsel for the appellants, the learned counsel appearing for the common second respondent viz. National Insurance Company Limited. The driver of the autorickshaw is the common first respondent in both the appeals. 3. When these matters are taken up for M.A.C.A.Nos.2721 & 3008 of 2008 5 consideration the learned counsel appearing for the common second respondent raised a contention that virtually the claim petition filed by the appellants in MACA 2721/2008 viz O.P.(M.V.)No.786/2003 ought not to have been entertained by the tribunal. Evidently, the said contention is founded on the decision of the Hon'ble Apex Court in **Oriental Insurance Company v. Mother Superior, S.H. Convent [1994 1 KLT 868]** and **Mother Superior, Adoration Convent v. D.E.O. [1977 KLT 303]** . The contention is that the deceased was a priest and he was a catholic and while taking oath as a priest he renounced all family relations. In such circumstances, merely because the claimants are his siblings they cannot claim that they are the legal heirs entitled to get compensation for his death. It is the contention that the head of the congregation to which the deceased belonged, alone is the rightful claimant. Since the application was not filed by the rightful claimant viz. the congregation in which the deceased was a member and/or M.A.C.A.Nos.2721 & 3008 of 2008 6 even the head of the congregation was not made a respondent in the claim petition. Hence, the claim petition was ought not to have been entertained rather, the claim petition was ought to have held not maintainable. In such circumstances it is contended that the tribunal went wrong in assessing compensation at the instance of the claimants. The learned counsel for the insurance company has raised a further contention to contend that the appellant in MACA No.3008/2008 also cannot have a grievance in the eye of law. It is contended that from the discussion in the impugned common judgment it is evident that the tribunal arrived at a finding that the driver of the autorickshaw had not contributed to the accident and virtually the fact that the accident occurred due to the negligence on the part of the deceased himself was admitted before the tribunal. In such circumstances it is contended that the appellant/claimant in MACA No.3008/2008 is a joint tortfeasor by virtue of he being the owner of the said M.A.C.A.Nos.2721 & 3008 of 2008 7 vehicle he cannot claim compensation for the damage caused to the car. The learned counsel further submitted that the tribunal has also found that being the owner of the car the claimant cannot claim compensation for the damage caused to the car by the driver employed by him. 4. The learned counsel appearing for the appellants contended that the second respondent insurance company cannot be permitted to take up such contentions at the appellate stage owing to its failure to take up any such contentions before the tribunal. In other words, the contention is that such contentions are being taken up for the first time only in the appeal and therefore the tribunal cannot be found fault with in not considering such legal aspects as they were not at all raised before the tribunal. 5. At the first blush the said contention appears to be attractive and acceptable. Normally, a party who had not taken up such contentions cannot be permitted to take up contentions for the first time, in an appeal, if such M.A.C.A.Nos.2721 & 3008 of 2008 8 contentions could be raised only based on factual foundation. But on considering the rival contentions and the impugned judgment passed by the tribunal, we are of the view that the contention raised by the common second respondent cannot be said to be totally devoid of merit. We may hasten to add that we shall not be understood to have held that the appellants/claimants in MACA No.2721/2008 are not at all entitled to get the compensation as they are only the siblings of the deceased Fr. Dr. Wilson Ukken. But at the same time it is to be noted that the very claim petition was filed by the claimants/appellants taking up the contention that the deceased driver at the time of the accident was a priest. It is also an indisputable fact that the deceased and the claimants belong to catholic community. In such circumstances, merely because the claim petition was filed by the siblings contending that they are the legal representatives of the deceased and even if the question of entitlement was not taken up by the respondents the M.A.C.A.Nos.2721 & 3008 of 2008 9 tribunal ought to have considered the question regarding the entitlement rather the locus standi of the claimants to claim compensation for the death of a priest. It is to be said that enunciation of law on that point by this court in **Mother Superior, S.H. Convent** 's case ought not have been taken into consideration by the Tribunal since that being a binding precedent. Certainly, the tribunal was under an obligation to consider the same while deciding on the question of entitlement or otherwise of the claimants to get compensation. In fact the question whether the claim petition filed by the siblings of the deceased could be entertained ought to have been considered. Evidently even after stating that the deceased was a priest the appellants/claimants had not made the head of congregation as a party to the claim petition. We do not think that it is proper for us to make any further comments upon the said issue. But at the same time we are of the considered view that the tribunal was under a legal M.A.C.A.Nos.2721 & 3008 of 2008 10 obligation to consider the question as to whether a claim petition filed by the siblings of the deceased priest belonging to Catholic faction claiming the status of legal heirs ought to have been entertained. It appears that virtually the tribunal entertained the same and assessed the compensation payable but declined to pass an award in their favour solely on the ground that the claimants raised such a claim against the driver of the autorickshaw who had not contributed to the accident. In other words the tribunal held that since the owner of the car had not been made a party to the claim they are not entitled to get the compensation. In this context it is to be noted that the first claimant in O.P.(M.V.)No.786/2003 is none other than the owner of the car involved in the accident which was being driven by the deceased priest at the time of the accident. It is also a fact that he is one of the siblings of the deceased priest and it is in the said circumstances he filed the claim petition seeking compensation. In this context it is also M.A.C.A.Nos.2721 & 3008 of 2008 11 relevant to refer to certain other relevant factors. In the light of a subsequent decision of the Hon'ble Apex Court in **National Insurance Company Ltd. v. Sinitha 2011 (4) KLT 821 (SC)** though a claimant in an application filed under Section 163A of the M.V.Act shall not be required to plea and prove any of the three faults i.e. 'wrongful act', 'neglect' or 'default'. It is open to a concerned party either owner or insurer of the concerned vehicle to defeat a claim raised under Section 163A by pleading and establishing any one of the three faults. In this case the learned counsel for the common second respondent contended that the insurer had taken out a contention that the accident in question had occurred solely due to the negligence on the part of the deceased driver himself. Evidently, the tribunal had not gone into that question presumably based on the conclusion arrived at to the effect that in an application filed under Section 163A the question of negligence need not be considered at all. In such circumstances, in the light of the M.A.C.A.Nos.2721 & 3008 of 2008 12 decision in Sinitha's case, it is open to a concerned party (owner or insurer) to defeat a claim raised under Section 163A of the Act, by pleading and establishing anyone of the three faults and when such a pleading was taken the question whether the party who raised such a claim established any one of the three faults against the claimant/victim it is a matter which is essentially to be considered in an application under Section 163A. On going through the impugned judgment it is evident that the issue was also not considered by the tribunal. 6. Now we will consider the contentions raised by the common second respondent insurance company in the latter appeal. Essentially the contention is that the appellant being a joint tortfeasor is not entitled to claim compensation for the damage caused to the vehicle in question viz. the car bearing registration No.KL.8/R 3232. The indisputable and undisputed fact is that the car which involved in the accident and got damaged belongs to the M.A.C.A.Nos.2721 & 3008 of 2008 13 appellant who is none other the brother of the deceased Fr. Dr. Wilson Ukken who was the driving the said vehicle at the time of the accident. On a careful analysis of the impugned judgment, we found that the tribunal had failed to consider the question whether the accident occurred due to the negligence on the part of the driver of the other vehicle involved in the accident viz. the autorickshaw. O.P. (M.V.)No.1640 /2003 was filed under Section 166 of the M.V. Act . Evidently, the appellant has taken up contentions to the effect that the cause of the accident is the negligence from the part of the driver of the autorickshaw. The Tribunal virtually decided the fate of the said claim petition based on the conclusions and findings arrived at in O.P. (M.V.)No. 786/2003. It is evident that the tribunal ultimately dismissed the claim petition viz. O.P.(M.V.)No.1640/2003 holding that the appellant/claimant is not justified in claiming compensation from an innocent person viz. the driver of the autorickshaw without actually considering the M.A.C.A.Nos.2721 & 3008 of 2008 14 question whether the accident occurred due to the negligence from the part of the driver of the autorickshaw or whether he had contributed to the accident. True that the tribunal in the common judgment observed that the driver of the autorickshaw had not contributed to the accident. But on a careful analysis of the impugned judgment it is evident that the tribunal virtually arrived at such conclusions and consequential findings solely based on the fact that the police had registered a crime in connection with the accident only against the deceased Fr. Dr. Wilson Ukken who was driving the car at the time of the accident. Taking note of the fact that the driver of the car who sustained injuries in the accident succumbed to the injuries the police had filed an abate report. Without going into the question in detail to decide what exactly was the cause of the accident, whether the accident had caused due to the sole negligence from the part of the deceased or due to the exclusive negligence from the part of the driver of the M.A.C.A.Nos.2721 & 3008 of 2008 15 autorickshaw or whether due to the composite negligence of the drivers of both the vehicles involved in the accident, the tribunal arrived at such a conclusion. Thus, on a careful scanning of the impugned judgment, we are of the considered view that the relevant issues were not properly considered by the tribunal taking into consideration the provisions of law, the enunciation of provision of law and also the evidence on record. When a decision is arrived at by the tribunal in such a manner, it has to be held that, it is a perverse appreciation of evidence and an error has crept in the decision. The upshot of the discussion is that a fresh consideration taking into account all such aspects is required. In such circumstances, to enable the tribunal to have a proper adjudication on the claims made by the appellants the impugned common judgment is set aside. The matters are remanded to the Motor Accidents Claims Tribunal, Irinjalakuda for a fresh consideration in accordance with law and taking into account all relevant M.A.C.A.Nos.2721 & 3008 of 2008 16 provisions of law and the observations made herein in this judgment. We made it very clear that we have not made any observation touching the merits or demerits of the claims or contentions and in other words, it will be open to all the parties to all contentions permissible in law and also to adduce evidence. Taking note of the fact that the claim petitions are of the year 2003, the tribunal shall make an endeavour to dispose of the claim petitions as expeditiously as possible. To enable such a consideration, the registry shall forward a copy of this judgment to the Tribunal and on receipt of such judgment the tribunal shall cause notice to all the parties. There will be no order as to costs in these appeals. Sd/- ## **C.T. RAVIKUMAR** **JUDGE** Sd/- **K.P. JYOTHINDRANATH JUDGE** //True copy// P.A. TO JUDGE shg/