National Insurance Co. Ltd. v. Mithu, Mithendralal, Abdurazak, P. Suresh Kumar & Oriental Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` WEDNESDAY, THE 5[TH] DAY OF APRIL 2023 / 15TH CHAITHRA, 1945 ``` ## **`MACA NO. 2019 OF 2011`** ## **`AGAINST THE AWARD DATED 23.08.2011 IN O.P(M.V) NO.1714/2010`** ## **`OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE APPELLANT/4TH RESPONDENT:`** ``` NATIONAL INSURANCE CO.LTD. ``` ``` KOZHIKODE, REP. BY THE MANAGER, KOCHI REGIONAL OFFICE, M.G.ROAD, ERNAKULAM, COCHIN-35. ``` ``` BY ADV SRI.E.M.JOSEPH ``` ## **`RESPONDENTS/CLAIMANTS AND RESPONDENTS 1 TO 3:`** - `1 MITHU, D/O.LATE RAJAMANI, AGED 21, DAIVATHANKANDI HOUSE,` - `P.O.THIRUVANNUR NADA, KOZHIKODE.` - `2 MITHENDRALAL, S/O. LATE RAJAMANI, AGED 18, DAIVATHANKANDI HOUSE, P.O.THIRUVANNUR NADA, KOZHIKODE.` - `3 ABDURAZAK, S/O. KUNHALI, EDAPAPADI HOUSE, PULIKKAL P.O., KONDOTTY, MALAPPURAM.` - `4 P.SURESH KUMAR, S/O.KRISHNAN, AGED 28, PALLIYAD HOUSE, P.O.PUTHUKODE, (VIA) RAMANATTUKARA, MALAPPURAM.` - `5 THE ORIENTAL INSURANCE CO. LTD. JASEELA COMPLEX, NILAMBUR ROAD, MANJERI. BY ADVS.R1 AND R2 BY SRI.V.G.ARUN` - `SRI.T.R.HARIKUMAR` - `R5 BY SRI.GEORGE CHERIAN THIRUVALLA` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15.03.2023, THE COURT ON 05.04.2023 DELIVERED THE FOLLOWING: ``` M.A.C.A.No.2019 of 2011 -:2:- ## MARY JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No.2019 of 2011 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5[th] day of April, 2023 ## JUDGMENT This Appeal is directed against an award passed by Principal Motor Accidents Claims Tribunal, Kozhikode (for short ‘the Tribunal’)on 23.8.2011 in O.P.(M.V) No.1714/2010. The appellant is the 4[th] respondent in the Original Petition on hand. 2. The appellant is none other than the insurer of a Maruti Car bearing Registration No. KL-11-Y-7544, which is involved in the motor accident occurred on 02.01.2008, in which one Mr.Rajamani and Mrs.Lathika sustained fatal injuries and died consequently. Mr.Rajamany was the owner-cum driver of the car at the relevant time of the accident. The award with reference to the Original Petition under challenge is relating to O.P.(M.V) No.1714 2010. It was tried before the Tribunal along with O.P.(M.V) No.1715/2010 and a common award was passed. M.A.C.A.No.2019 of 2011 -:3:- 3. The Tribunal found negligence on the part of the driver of the car bearing Registration No.KL-11-Y-7544, who also died in the motor accident. The Tribunal found that the petitioners in O.P.(MV) No.1714/2010 who are none other than the children of Mr.Rajamani and Mrs.Lathika who died in the motor accident are entitled to get compensation and arrived at a sum of Rs.14,27,698/- as compensation and directed the insurer of the offending vehicle to deposit the same with interest at the rate of 7% per annum from 20.11.2010, the date on which the original petition was filed, till the date of deposit. Aggrieved by the quantum stands awarded as compensation and fixation of liability to indemnify the insured, the 4[th] respondent/insurer has approached this Court in the appeal on hand. 4. According to the learned counsel for the appellant, the petitioners in O.P.(M.V) No.1714/2010, being the children of deceased Rajamany who was found as tortfeasor in the motor accident, are not entitled to get compensation. According to the learned counsel, a tortfeasor cannot at the very same time be a claimant of compensation. According to him, Mrs.Lathika cannot be treated as a third party since on the death of Mr.Rajamani, M.A.C.A.No.2019 of 2011 -:4:- the registered owner-cum-insured of the Jeep involved in the motor accident, she would step into the shoes of the registered owner/insured of the vehicle. Her children are not entitled to claim compensation for her death, since with the death of Mr.Rajamani in the motor accident, she would step into the shoes to be the insured of the offending vehicle. 5. The learned counsel has relied on Oriental Insurance Co. Ltd. vs. Rajani Devi [2008 (4) KLT 145 (SC)] to rest his contention that the petitioners in O.P.(M.V) No.1714/2010 are not entitled to get compensation for the death of Mrs.Lathika in view of the likelihood of her change of status as the insured of the vehicle on the death of her husband who was the original insured. 6. The learned counsel for the respondents has contended on the contrary that the policy issued in respect of the offending vehicle is a comprehensive one and the risk of third parties is covered under it. According to him, Mrs.Lathika was a passenger in the offending vehicle which happened to be driven by Mr.Rajamani who was also insured of the vehicle. Mr.Rajamani was the tortfeasor. Mrs.Lathika when travelled in the vehicle and when premium has been collected to cover her risk in the motor M.A.C.A.No.2019 of 2011 -:5:- accident, she will only be a third party. According to the learned counsel,every person who are victims of a motor accident, apart from the insured of the vehicle will come within the purview of a ‘third party’. Therefore, the petitioners in O.P.(M.V) No.1714/2010 being the children of Mrs.Lathika who was the wife of Mr.Rajamani are entitled to get compensation and the Tribunal has correctly found so and awarded compensation. 7. The learned counsel for the 5[th] respondent is only a formal party in the appeal on hand, as liability has not been fastened on them by the Tribunal in the impugned award. 8. The claim petition in the case cited by the learned counsel for the appellant was one filed under Section 163A of Motor Vehicles Act, 1988 (for short ‘the MV Act’). It is held in the case by the Apex Court that where the owner of the vehicle himself is responsible for causing a motor accident, he will not be entitled to get compensation under Section 163A MV Act. It is further held that liability under Section 163 A of the MV Act is on the owner of the vehicle and he cannot be both a claimant and also a recipient. As already stated the claim petition in the case relied on by the learned counsel is one filed under Section 163A M.A.C.A.No.2019 of 2011 ## -:6:- MV Act where one Mr.Janak Raj died and he himself was the owner-cum-driver of the offending vehicle involved in the motor accident. He was also chargesheeted for driving the vehicle in a rash and negligent manner. It is true that the claim petition being one filed under Section 163 A of the MV Act, negligence of the driver is not a requirement to be established. However, it was found in the case cited, the legal representatives of Mr.Janak Raj had filed the claim petition seeking compensation and that too for the death of Mr.Janak Raj. In the case cited, the policy issued does not have coverage for the personal accident of the owner-cum-insured. In the said circumstances, the Apex Court held in the case that the petitioners therein, who are the legal representatives of Mr.Janak Raj are not entitled to get compensation, in view of their stepping into the shoes of the insured. 9. In the case on hand, Mr.Rajamani was driving the offending vehicle at the relevant time of the motor accident and the claim petition was filed under Section 163A MV Act. The Tribunal has found while answering issue No.1, that Mr.Rajamani was the tortfeasor and the accident in question was occurred due M.A.C.A.No.2019 of 2011 -:7:- to his rash and negligent driving of the vehicle involved. The petitioners in O.P.(MV) No.1714/2010 are not before the Tribunal as legal representatives of Mr.Rajamani seeking compensation for his death. The policy issued in favour of the car is also marked in evidence as Ext.B4. It is a package policy issued in respect of a passenger carrying commercial vehicle. It is found therefrom that basic premium to the extent of Rs.4,692.50 has been collected to cover the risk of third parties who would become victims of the motor accident. Mrs.Lathika being a passenger in the vehicle driven by Mr.Rajamani, is only a third party for covering the risk of whom, premium is found collected under Ext.B4. 10. As rightly pointed out by the learned counsel for the respondents, Mrs.Lathika may step into the shoes of Mr.Rajamani on is death. But at the relevant time of her death, she was a passenger in the vehicle and therefore, a third party. The Tribunal has correctly found accordingly, arrived at compensation in favour of the petitioners and fixed liability upon the 4[th] respondent to indemnify the insured. M.A.C.A.No.2019 of 2011 -:8:- This Court finds no reason to interfere with the impugned award. The appeal fails for the reasons and is dismissed. Sd/MARY JOSEPH JUDGE NAB