MACA Nos. 2872/2018 & 1998/2018, High Court of Kerala at Ernakulam

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN`** ``` THURSDAY, THE 30[TH] DAY OF MARCH 2023 / 9TH CHAITHRA, 1945 ``` ## **`MACA NO. 2872 OF 2018`** ## **`AGAINST THE AWARD DATED 12.10.2017 IN OP(MV) NO.416/2012 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA`** ## **`APPELLANTS:`** - `1 REVATHY LIJO, THAIKOOTTATHIL HOUSE, KARIKAYAM P.O., CHITTAR - SEETHATHODU VILLAGE, RANNY TALUK.` - `2 ABISHEK LIJO, THAIKOOTTATHIL HOUSE, KARIKAYAM P.O., CHITTAR - SEETHATHODU VILLAGE, RANNY TALUK (MINOR), REPRESENTED BY HER GUARDIAN AND NEXT FRIEND REVATHY LIJO, 1ST APPELLANT.` - `3 ANNAMMA CHACKO, THAIKOOTTATHIL HOUSE, KARIKAYAM P.O., CHITTAR - SEETHATHODU VILLAGE, RANNY TALUK.` - `4 CHACKO ABRAHAM, THAIKOOTTATHIL HOUSE, KARIKAYAM P.O., CHITTAR - SEETHATHODU VILLAGE, RANNY TALUK.` - `BY ADVS. T.K.KOSHY SABU I.KOSHY V.V.RISANI` ## **`RESPONDENTS:`** - `1 OMANA.S., NARIKUZHIYIL HOUSE, KARIKAYAM P.O., CHITTAR, PIN - 689 663.` - `2 MANAGER, RELIANCE GENERAL INSURANCE CO. LTD., 570, NAIGAUM CROSS ROAD, NEXT TO ROYAL INDUSTRIALESTATE, WADALA (W), MUMBAI-400031.` - `ADDL.3 VASUDEVAN ACHARY,S/O KUNJU PILLAI ACHARY, THEKKINEZHETH, MEENAM, PATTAZHY P.O., KOLLAM, PIN – 691 552` - `ADD.4 JINU NANDANAN, S/O NANDANAN, JINU NILAYAM, AIKADU, KODUMON P.O., PATHANAMTHITTA, PIN – 691 555` ``` (ADDITIONAL RESPONDENTS 3 AND 4 ARE IMPLEADED AS PER ORDER IN I.A.NO.1/2019 DATED 31.03.2023) ``` MACA 2872 & 1998/18 2 ``` BY ADVS. SRI.MATHEWS JACOB (SR.) D.KISHORE SRI.P.JACOB MATHEW SRI.R.MURALEEKRISHNAN (MALAKKARA) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.03.2023, ALONG WITH MACA.1998/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 2872 & 1998/18 3 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 30[TH] DAY OF MARCH 2023 / 9TH CHAITHRA, 1945 MACA NO. 1998 OF 2018 ``` ``` AGAINST THE AWARD DATED 12.10.2017 IN OP(MV) NO.416/2012 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA ``` ## **`APPELLANT:`** ``` RELIANCE GENERAL INSURANCE COMPANY LIMITED MUMBAI NOW REPRESENTED BY ITS LEGAL-CLAIMS MANAGER,REGIONAL OFFICER,KOCHI 682 020. ``` ``` BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ``` ## **`RESPONDENTS:`** - `1 REVATHY LIJO, THAIKOOTTATHIL HOUSE, KARIKAYAM PO, CHITTAR,SEETHATHODU VILLAGE, RANNY TALUK,PIN 689 663.` - `2 ABHISHEK LIJO (MINOR), AGED 6 YEARS, THAIKOOTTATHIL HOUSE, KARIKAYAM P.O.,CHITTAR, SEETHATHODU VILLAGE, RANNY TALUK,PIN 689663, REPRESENTED BY HIS GUARDIAN MOTHER 1ST RESPONDENT` - `3 ANNAMMA CHACKO, THAIKOOTTATHIL HOUSE, KARIKAYAM P.O.,CHITTAR, SEETHATHODU VILLAGE, RANNY TALUK, PIN 689663.` - `4 CHACKO ABRAHAM, THAIKOOTTATHIL HOUSE, KARIKAYAM P.O.,CHITTAR,SEETHATHODU VILLAGE,RANNY TALUK, PIN 689 663.` - `5 OMANA S., NARIKUZHIYIL HOUSE, KARIKAYAM P.O.,CHITTAR,RANNY TALUK,PIN 689 663.` MACA 2872 & 1998/18 4 ``` BY ADVS. SRI.T.K.KOSHY SRI.SABU I.KOSHY ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.03.2023, ALONG WITH MACA.2872/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 2872 & 1998/18 5 ## **`JUDGMENT`** ``` [MACA Nos.2872/2018, 1998/2018] ``` These appeals have been heard together and are being disposed of through this judgment because, they emanate from the same Award of the Motor Accidents Claims Tribunal, Pathanamthitta (‘Tribunal’ for short), resulting out of an accident which occurred on 24.09.2011. 2. I also record that the learned counsel for the parties have requested and have acceded to these matters be disposed of at the stage of admission itself, based on the documents handed over by them across the Bar. 3. The appellants in MACA No.2872/2018 are the legal heirs of Lijo Chacko - who unfortunately died when the motorcycle he was riding, hit against another one, on 24.09.2011. The motorcycle ridden by Late Lijo Chacko was owned by his mother-in-law – Smt.S.Omana; and his legal heirs, thereupon, filed OP(MV)No.416/2012 before the learned Tribunal against her, seeking compensation of an amount of Rs.25,00,250/-, limited to MACA 2872 & 1998/18 6 Rs.11,00,250/-, under Section 163A of the Motor Vehicles Act; which has been allowed to a sum of Rs.4,78,300/-. 4. The appellants in MACA No.2872/2018 assail the award of the Tribunal as being inadequate and riddled with error; while, the Insurance Company - which insured the motorcycle in question - has filed MACA No.1998/2018, impelling the ground that they could not have been made liable to pay the compenstion because, the legal heirs of Late Lijo Chacko are, in fact, seeking compensation for his death caused by himself. They rely upon various judgments of the Hon’ble Supreme Court in substantiation. 5. Before I move on, I must record that the appellants in MACA No.2872/2018 – the claimants, have impleaded two other persons in the appeal, asserting that the other motorcycle involved is owned by them. They say that, therefore, even if MACA No.1998/2018 is to be allowed and the appellant, therein, namely Reliance General Insurance Company Ltd., is to be exonerated, they are still entitled to seek compensation from the owners of the other vehicle, under Section I63A of the Motor Vehicles Act. 6. I have heard Sri.Mathews Jacob - learned Senior MACA 2872 & 1998/18 7 Counsel, instructed by Smt.Preethy Nair appearing for the appellant in MACA No.1998/2018; Sri.T.K.Koshi – learned counsel for the appellants in MACA No.2872/2018 and Sri.D.Kishore – learned counsel appearing for the additional respondent No.3 in MACA No.2872/2018. 7. I will first deal with the contention of the appellant in MACA No.1998/2018 – Reliance General Insurance Company. 8. Sri. Mathews Jacob, learned Senior Counsel for the Insurance Company, vehemently argued that, when it is conceded that late Lijo Chacko was himself riding the motor cycle and when the Police Charge Sheet discloses that he was solely responsible for the accident, his legal heirs cannot maintain any claim for compensation against his client. He relied upon the judgment of the Honourable Supreme Court in Ningamma and Another v. United India Insurance Company [ 2009 (13) SCC 710] in fortification. 9. In refutation, Sri.T.K.Koshy – learned counsel for the claimants, argued that Ningamma (supra) would not apply to the case at hand because, the vehicle in question was owned by MACA 2872 & 1998/18 8 Smt.Omana, who is conceded to be the mother-in-law of the deceased and therefore, that even if the Police has charge sheeted him for the accident, it would be of no consequence because, for maintaining a claim under Section 163A of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the MV Act’ for short), negligence or contribution by the driver of the offending vehicle would be of no consequence whatsoever. 10. I am afraid that I cannot find favour with the afore submissions of Sri.T.K.Koshy because, through Ningamma (supra), it has been well settled that, if the accident is caused by a person who was riding the vehicle, he/she will step into the shoes of owner, thus dis-entitling his/her legal heirs to claim compensation, as if he/she was a third party. When the judgment is affirmative to such declaration and when the claimants also concede to it, I fail to understand how the learned Tribunal could have found the Reliance General Insurance Company – appellant in MACA No.1998/2018, responsible to pay compensation, even under Section 163A of the ‘MV Act’. 11. That being so found, the further question arises MACA 2872 & 1998/18 9 whether the claimants would be eligible to recover compensation – if they are so entitled to – from the owner of the other vehicle involved in the accident. This issue has never been considered by the learned Tribunal, since it proceeded on the assumption that Reliance General Insurance Company was responsible, particularly because it is a claim under Section 163 A of the ‘MV Act’. Obviously, therefore, this Court will not be in a position to deal with this issue on its merits at this stage. 12. Since Sri.D.Kishore – learned counsel appearing for the 3rd respondent in MACA No.2872/2018, concedes that his client was the original owner of the vehicle, however, arguing that it was subsequently sold to the 4th respondent – who remains unrepresented before this Court in spite of valid service, I am certainly of the view that the matter will require to be remanded to the learned Tribunal for a reconsideration of the Original Petition, however, only as against respondents 3 and 4 in the said MACA and not against the Insurance Company. **==> picture [37 x 56] intentionally omitted <==** Resultantly, a) MACA No.1998/2018 is allowed and the impugned MACA 2872 & 1998/18 10 Award, to the extent to which it finds the appellant – Insurance Company responsible to pay compensation to the claimants, is set aside. b) MACA No.2872/2018 is allowed and the impugned Award of the learned Tribunal is set aside; however, remanding the Original Petition for a reconsideration, but solely as against respondents 3 and 4. c) The learned Tribunal will, therefore, dispose of the Original Petition afresh, after affording the claimants, as also respondents 3 and 4 in MACA No.2872/2018, necessary opportunities of leading additional/fresh evidence and of further hearing; thus culminating into a new Final Order in the Original Petition, as expeditiously as is possible, but not later than eight months from the date of receipt of a copy of this judgment; for which purpose, the said parties shall appear before the Tribunal at 11 a.m. on 26.04.2023. d) Needless to say, in order to facilitate the afore directions, the claimants will be at liberty to apply to amend the Original Petition, bringing respondents 3 and 4 on the party array – MACA 2872 & 1998/18 11 subject to their objections, if any – which shall be done before the date notified as afore for their appearance before the Tribunal. ``` Sd/- ``` ``` ACR/RR ``` ``` DEVAN RAMACHANDRAN JUDGE ```