Mary and Others v Salin (Salim) and The New India Assurance Co. Ltd.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 14[TH] DAY OF DECEMBER 2021 / 23RD AGRAHAYANA, 1943 ``` ``` MACA NO. 623 OF 2009 ``` ``` AGAINST THE AWARD DATED 30.04.2008 IN OP(MV)NO.291/2004 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,THODUPUZHA ``` ## `APPELLANTS/ PETITIONERS:` ``` 1MARY, W/O.ELDHOSE, AGED 48 YEARS, PEEDIACKAL HOUSE, MACHIPLAVU P.O., ADIMALY. ``` ``` 2JANCY ELDHOSE, W/O.ELDHOSE, AGED 23 YEARS, PUTHENPURACKAL HOUSE, MACHIPLAVU P.O., ADIMALY. ``` ``` 3MANJU MONAI, W/O.MONAI, AGED 19 YEARS, CHULLINKAL HOUSE, VALARA P.O., ADIMALY. ``` ``` 4BASIL.P.ELDHOSE, S/O.ELDHOSE, AGED 18 YEARS, PEEDIACKAL HOUSE, MACHIPLAVU P.O., ADIMALY. ``` ``` BY ADV SRI.T.J.MICHAEL ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1SALIM, S/O. JOSEPH, ARACKAL HOUSE, MANNAMKANDAM P.O., MANNAMKANDAM VILLAGE. ``` ``` 2THE NEW INDIA ASSURANCE COMPANY LTD. REPRESENTED BY ITS BRANCH MANAGER, MADAPARAMBIL CHAMBERS, M.C.ROAD, MUVATTUPUZHA. ``` M.A.C.A.No.623/2009 & C.O.No.147/2021 -:2:- ``` BY ADVS.SRI.ALEXANDER JOSEPH SRI.PMM.NAJEEB KHAN ``` ``` THISMOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.12.2021, ALONG WITH CO.147/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.623/2009 & C.O.No.147/2021 -:3:- ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 14[TH] DAY OF DECEMBER 2021 / 23RD AGRAHAYANA, ``` ``` 1943 ``` ``` CO NO. 147 OF 2021 ``` ``` AGAINST THE ORDER/JUDGMENT IN MACA 623/2009 OF HIGH COURT OF ``` ## `KERALA` ## `CROSS OBJECTOR/1ST RESPONDENT:` ``` SALIN JOSEPH, AGED 51 YEARS, S/O JOSEPH, ARACKAL HOUSE, MACHIPLAV.PO, MANNAMKANDAM, ADIMALY, IDUKKI DISTRICT. ``` ``` BY ADVS.SRI.ALEXANDER JOSEPH SRI.AKHILASREE BHASKARAN ``` ## `RESPONDENTS/APPELLANTS AND 2ND RESPONDENT:` ``` 1MARY, W/O ELDHOSE, PEEDIACKAL HOUSE, MACHIPLAV PO, ADIMALY, IDUKKI DISTRICT-685561. ``` ``` 2JANCY ELDHOSE, AGED 35 YEARS, W/O ELDHOSE, PUTHANPURACKAL HOUSE, MACHIPLAV.P.O, ADIMALY, IDUKKI DISTRICT-685561. 3MANJU MONAI, AGED 31 YEARS, W/O MONAI, CHULLICKAL HOUSE, VALARA.P.O, ADIMALY, IDUKKI DISTRICT-685561. ``` M.A.C.A.No.623/2009 & C.O.No.147/2021 -:4:- ``` 4BASIL P ELDHOSE, AGED 30 YEARS, S/O ELDHOSE, PEEDIACKAL HOUSE, MACHIPLAV.P.O, ADIMALY, IDUKKI DISTRICT-685561. ``` ``` 5THE NEW INDIA ASSURANCE COMPANY LIMITED REPRESENTED BY ITS MANAGER, MADAPARAMBIL CHAMBERS, MC ROAD, MUVATTUPUZHA-688661. ``` ``` BY ADVS.SRI.PMM.NAJEEB KHAN SRI.T.J.MICHAEL ``` ``` THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 14.12.2021, ALONG WITH MACA.623/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.623/2009 & C.O.No.147/2021 -:5:- Dated this the 14[th] day of December,2021 ## **J U D G M E N T** The appeal and the Cross-Objection are filed challenging the award in O.P(MV) No.291/2004 on the file of the Motor Accidents Claims Tribunal,Thodupuzha. As the parties are the same, for the sake of convenience, they are referred to as per their status before the Tribunal. 2. The petitioners had filed the claim petition under Section 163A of the Motor Vehicles Act, 1988(in short, 'Act'), claiming compensation on account of the death of 'Eldhose'(deceased)-the husband of the first petitioner and the father of the petitioners 2 to 4. It was their case that, the deceased while driving a jeep bearing registration No.KRV-3463(jeep) through the public road at Machiplavu bhagam, when he reached M.A.C.A.No.623/2009 & C.O.No.147/2021 -:6:- near the property of the pulichottil Mathai, the deceased attempted to deal with a curve, but the jeep overturned and the deceased fell under the jeep. Although the deceased was rushed to the Morning Star Hospital, Adimali; he lost his life. The first respondent was the owner and the second respondent was the insurer of the jeep. Therefore, the second respondent was to indemnify the first respondent of his liability arising out of the accident. The deceased was a jeep driver by profession with many employers and was earning a monthly income of Rs.5,000/-. The petitioners were the dependents of the deceased. Hence, they were claimed an amount of Rs.8,19,000/as compensation from the respondents, which claim was limited to Rs.5,00,000/-. 3. The first respondent had filed a written M.A.C.A.No.623/2009 & C.O.No.147/2021 -:7:- statement, inter alia, contending that the petitioners are not entitled to claim any compensation from him because the accident was self-made and happened due to the negligence of the deceased. The first respondent admitted that he was the owner of the jeep, but disputed that the deceased was his employee. Nonetheless, the first respondent stated that as the jeep was insured with the second respondent, even if the Tribunal found that the first respondent was liable to pay any compensation, it is the second respondent who is to indemnify the first respondent. 4. The second respondent had filed a written statement stating that, as per Section 163A of the Act, other than for the driver and owner, all other persons are considered to be third parties. Thus, the petitioners are not entitled to claim compensation M.A.C.A.No.623/2009 & C.O.No.147/2021 -:8:- under Section 163A of the Act from the second respondent. The accident occurred due to the negligence of the deceased. The deceased was a paid driver of the first respondent. At the time of accident, he was driving the jeep as a paid employee. No additional premium was collected by the second respondent to cover a paid driver. Therefore, the second respondent is not liable to indemnify the first respondent. Likewise, the jeep was covered by an 'Act Policy' and it was a private car. The first respondent had carried timber logs in the jeep, which was a violation of the policy conditions. For the said reason also, the second respondent was to be exonerated of any liability. The actual owner of the jeep was one 'Salin' and not 'Salim' as pleaded in the claim petition. The jeep was sold by the first respondent to one M.A.C.A.No.623/2009 & C.O.No.147/2021 -:9:- 'Shaji'. The transfer of ownership was not intimated to the second respondent, which tantamounts to suppression of material facts and has rendered the insurance policy ab initio void. Hence, the claim petition may be dismissed. 5. Consequent to the filing of the written statement by respondents 1 and 2, the petitioners filed I.A.No.180/2008, seeking leave to amend the claim petition to correct the name of the first respondent as 'Salim' and to reduce the monthly income of the deceased from Rs.5,000/- to Rs.3,200/-. The Tribunal granted leave and the amendment was carried out. 6. The first petitioner was examined as PW1 and Exts.A1 to A6 were marked in evidence. An officer of the second respondent was examined as RW1 and Exts.B1 to B2 were marked through him. M.A.C.A.No.623/2009 & C.O.No.147/2021 -:10:- 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the petitioners to recover from the first respondent an amount of Rs.2,49,500/- with interest. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal and aggrieved by the exoneration of the second respondent, the petitioners have filed the appeal. Aggrieved by the direction in permitting the petitioners to recover the compensation amount from the first respondent, the first respondent has filed the Cross-Objection. 9. Heard; Sri. T.J. Micheal, the learned counsel appearing for the appellants/petitioners, Sri. Alexander Joseph, the learned counsel appearing for the first respondent/Cross-Objector and Sri. PMM M.A.C.A.No.623/2009 & C.O.No.147/2021 -:11:- Najeeb Khan, the learned counsel appearing for the second respondent-insurer. 10. The common questions that arise for consideration in the appeal and Cross-Objection are; - (i) Whether the claim petition is maintainable under Section 163A of the Act? - (ii) Whether the exoneration of the second respondent is sustainable in law? - (iii) Whether the impugned award allowing the claim petition and permitting the petitioners to realise the compensation amount from the first respondent is sustainable in law? ## **Question No.(i)** 11. The definite case of the petitioners in the claim petition was that, the deceased was a jeep driver with many employers and was earning a monthly income of Rs.5,000/-. Subsequently, the petitioners filed I.A.No.180/2008, seeking leave to amend the claim petition to reduce the monthly M.A.C.A.No.623/2009 & C.O.No.147/2021 -:12:- income of the deceased from Rs.5,000/- to Rs.3,200/-. The application was allowed and the Tribunal proceeded with the claim on the pleading that the deceased was earning Rs.3,200/- per month. 12. The question whether a Tribunal can permit the claimant(s) to reduce the monthly income of the deceased victim(s) to bring the claim petition within the framework of Section 163A of the Act, by way of amendment, is no longer res integra, in the light of the emphatic declaration of law by this Court in **Sumathy Amma and Ors. v. Babu and Ors.** [2018 KHC 7529]. A Division Bench of this Court, relying on the decision of the Hon'ble Supreme Court in **Deepal Girishbhai Soni v. United India Insurance Co. Ltd.** [2004 ACJ 934(SC)] has held that, if the annual income of the deceased exceeds Rs.40,000/- per annum, then an M.A.C.A.No.623/2009 & C.O.No.147/2021 -:13:- application filed under Section 163A of the Act is not maintainable in law. 13. In **National Insurance Co.Ltd. v.** **Aravindashan** [2016 ACJ 2849(Kerala)], this Court held that once the claimant had averred that the annual income of the deceased exceeds Rs.40,000/-, then the Tribunal is not expected to take evidence and scale down the income to Rs.3,300/- so as to fit the claim under Section 163A of the Act. The remedy open to the Court is to proceed with the case under Section 166 of the Act, as the claim under Section 163A of the Act is not maintainable. It was also observed that the Tribunal had committed a grave illegality by permitting the petitioners to bring down the monthly income to Rs.3,300/-, where on the basis of pleadings, the claim petition was not maintainable under Section M.A.C.A.No.623/2009 & C.O.No.147/2021 -:14:- 163A of the Act, and there was no necessity to remand the case. 14. In view of the unambiguous averment in the claim petition, that the deceased was earning a monthly income of Rs.5,000/-, which exceeded the statutory cap under Section 163A of the Act and the law laid down by the Hon'ble Supreme Court and this Court in **Deepal Girishbhai Soni, Sumathy Amma and Aravindashan** (supra), I hold that leave granted by the Tribunal to amend the claim petition, to reduce the monthly income of the deceased from Rs.5,000/- to Rs.3,200/- was erroneous and unsustainable in law. As the petitioners did not elect to proceed under Section 166 of the Act, the Tribunal ought to have dismissed the claim petition, as it fell outside of the framework of the statutory cap under Section 163A of the Act. M.A.C.A.No.623/2009 & C.O.No.147/2021 -:15:- Thus, I answer Question No.(i) against the petitioners and hold that O.P.(MV)No.291/2014 is not maintainable in law. Resultantly, I set aside the impugned award and dismiss O.P.(MV)No.291/2014. ## **Question Nos.(ii) & (iii)** 15. Even though I have answered Question No.(i) against the petitioners and held that OP(MV) No.291/2014 is not maintainable in law, as I have formulated Question Nos. (ii) and (iii) which are intertwined, I propose to answer them also 16. The petitioners had stated that the deceased was a jeep driver with many employers. They did not have a case that the deceased was an employee of the first respondent. The first respondent had specifically pleaded in his written statement, that the deceased was not his employee. Quite strangely, the second M.A.C.A.No.623/2009 & C.O.No.147/2021 -:16:- respondent, without any basis or material, took the stand that the deceased was a paid driver of the first respondent. 17. I have re-appreciated the oral testimony of PW1, who has also not testified that the deceased was a paid employee of the first respondent. Therefore, with the available pleadings and materials on record, all that can be inferred is that the deceased had borrowed the jeep from the first respondent and drew the same on the ill fated day. 18. The Hon'ble Supreme Court in **Ningamma** **v. United India Insurance Company Ltd.** [2009 KHC 5046], has held that an authorised representative of the owner, only steps into the shoes of the owner and, therefore, the insurer is liable to indemnify the insured. M.A.C.A.No.623/2009 & C.O.No.147/2021 -:17:- 19. In the case at hand, as evident from Ext.A3 final report, the accident was a self-accident caused due to the negligence of the deceased. 20. Going by the terms and conditions in Ext.B1(a) insurance policy, the insurer is only liable to indemnify the insured in the case of paid driver, conductor and cleaner under IMT 28 or the employees of the insured, other than the paid driver, under IMT 29. 21. Indisputably, Ext.B1 is an 'Act policy'. The first respondent has paid additional premium only to cover injuries caused to an employee. 22. Even going by the case of the petitioners, the deceased was a jeep driver with many employees. Therefore, the case would not fall within the purview of IMTs' 28 and 29 of Ext.B1(a) policy. Similarly, as the M.A.C.A.No.623/2009 & C.O.No.147/2021 -:18:- petitioners have not proved that the deceased was an employee of the first respondent, I do not find any ground to hold that the respondents are liable to pay the compensation amount to the petitioners, especially in the light of the principle in **Ningamma** (supra). Hence I confirm the finding of the Tribunal and hold Question No. (ii) against the petitioners and also hold Question No.(iii) against the petitioners by finding that the first respondent is not liable to pay the compensation amount to the petitioners. In the result, the appeal is dismissed and the Cross-Objection is allowed. The impugned award passed by the Motor Accidents Claims Tribunal, Thodupuzha, in O.P.(MV)No.291/2004 is set aside. Consequently, I dismiss O.P.(MV) No.291/2004. In the facts and circumstances of the case, the parties shall M.A.C.A.No.623/2009 & C.O.No.147/2021 -:19:- ## bear the respective costs. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/14.12.21 //True copy/ P.A.To Judge