National Insurance Co. Ltd. v. Seethalakshmi and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI MONDAY, THE 6TH DAY OF AUGUST 2012/15TH SRAVANA 1934 MACA.No. 127 of 2007 (B) -----------------------------OPMV.870/2000 of M.A.C.T.,ATTINGAL --------- APPELLANT/ADDL.5TH RESPONDENT: ------------------------------------------ THE NATIONAL INSURANCE CO.LTD., TRIVANDRUM, REPRESENTED BY ITS MANAGER MOTOR THIRD PARTY CELL, AJAI VIHAR, M.G.ROAD ERNAKULAM. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENTS/CLAIMANTS: -------------------------------- 1. SMT.SEETHALAKSMY, - W/O.LATE SUBRAMANIYAN ACHARI, THENGUVILAKATHU VEEDU THEKKUMKARA, NEDUMANGADU P.O., THIRUVANANTHAPURAM. 2. MISS.RANI, D/O.SEETHALEKSHMY, - THENGUVILAKATHU VEEDU, THEKKUMKARA, NEDUMANGADU P.O. THIRUVANANTHAPURAM DISTRICT. 3. S.REMESH, S/O.LATE SUBRAMANIYAN ACHARI, THENGUVILAKATHU VEEDU, THEKKUMKARA, NEDUMANGADU P.O. THIRUVANANTHAPURAM DISTRICT. ## RESPONDENTS/RESPONDENTS 1 TO 4 4. A.NAZAR, S/O.ABDUL ASEEZ, SHANU NIVAS, CHAMAVILA PUTHEN VEEDU, BALARAMAPURAM BALARAMAPURAM P.O., THRIURVANANTHAPURAM DISTRICT. 5. T.VIJAYAKUMAR S/O. THANKAPPAN PILLAI, PALAKUZHY VEEDU, PANAYAMUTOM P.O., NEDUMANGAD THIRUVANANTHAPURAM. MACA.No. 127 of 2007 (B) -2- 6. UNITED INDIA INSURANCE CO.LTD., - DIVISINAL OFFICE NO.I, C.N.C. BUILDING - L.M.S.COMPOUND, PALAYAM, THIRUVANANTHAPURAM-33. 7. P.SWAMINATHAN, S/O.PARAMESWARAN ACHARI, THENGUVILAKATHU VEEDU, THEKKUNIKARA, DO. P.O. NEDUMANGAD TALUK, TRIVANDRUM. BY ADV. SRI.P.SANKARANKUTTY NAIR - R6 BY ADV. SRI.NAGARAJ NARAYANAN – R1 TO R3 BY ADV. SRI.SAIJO HASSAN BY ADV. SRI.A.S.SABU THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ. -----------------------------------------------M. A. C. A No.127 of 2007 -----------------------------------------------Dated this the 6[th] day of August, 2012 ## **JUDGMENT** ## _Ramakrishna Pillai, J_ The Insurance Company has come up in appeal. 2. Respondents 1 to 3 being the legal heirs of one Rajesh who died due to the injuries sustained by him in a road traffic accident on 11/12/95 made a claim under Section 163-A of the Motor Vehicles Act before the Tribunal for a compensation of ` 5,98,000/- under different heads. 3. Allegedly while the deceased was riding a motorcycle owned by the seventh respondent it collided with another motorcycle coming from the opposite direction. The deceased was thrown down and sustained injuries to which he succumbed on the same day while undergoing treatment. 4. The appellant Insurance Company while admitting the policy of the motorcycle which the deceased was riding M. A. C. A No.127 of 2007 -2- contended that the accident occurred due to the negligence of the deceased and the claimants are not entitled to get any compensation from them. 5. The learned Tribunal after considering the evidence awarded a sum of ` 3,42,100/- under various heads, the claim being one under Section 163-A of the Motor Vehicle's Act for the death which arose out of the use of the vehicle insured with the appellant. The said finding is under challenge in this appeal. 6. We have heard the learned counsel for the Insurance Company and the learned counsel for the respondents. We have also perused the impugned award. 7. It is not disputed that the accident occurred while the deceased was riding a motorcycle owned by the seventh respondent. Another motorcycle was also involved in the accident. The deceased was charge sheeted by the police. Though the learned counsel for the respondents/claimants would contend that there was employer and employee relationship between the deceased and the seventh M. A. C. A No.127 of 2007 -3- respondent that relation was not having any connection with the vehicle involved in the accident. Evidently the deceased was a borrower of the vehicle involved in the accident. 8. We remind ourselves of the decision of the Supreme Court in Ningamma v. United Insurance Co. Ltd. (2009 (13) SCC 710) where the maintainability of the claim petition filed by the dependants of the deceased under Section 163-A of the Act was considered. The deceased in the above case was riding a motorcycle which dashed against a bullock cart proceeding ahead, resulting in the death of the deceased. It was in evidence that the deceased had borrowed the vehicle from its real owner. Allowing the claim petition filed by the legal representatives under Section 163-A of the Act, the Tribunal awarded compensation and directed the Insurance Company to pay the amount. When the matter was taken in appeal before the High Court, the High Court held that the claim petition was not maintainable as there was no tort feasor involved and set aside the award of the Tribunal. The said decision was upheld by the Apex Court holding that as M. A. C. A No.127 of 2007 -4- the deceased who was the borrower stepped into the shoes of the owner of the vehicle, he cannot himself be a recipient of compensation as liability to pay the same is on him. The legal representatives of the deceased would not be entitled to claim compensation, especially because, no other vehicle was involved, it was held. 9. Viewed in that profile the impugned award has to be interfered with and it has to be set aside. 10. The learned counsel for the respondents/claimants would submit that his definite case was that the accident had occurred due to the carelessness of the rider of the other motorcycle involved in the accident. According to the learned counsel he could not prove and establish that the accident was due to the negligence of the other rider. So it was submitted that if an opportunity be given to the respondents 1 to 3 to adduce further evidence, they will be in a position to substantiate the case put forward and claim compensation. 11. In the result, we allow the appeal. The impugned M. A. C. A No.127 of 2007 -5- award is set aside. The appellant Insurance Company is absolved of the liability of paying the compensation to respondents 1 to 3 who are the claimants. The case is remanded to the Tribunal affording the respondents 1 to 3 an opportunity to adduce further evidence if they choose to prove the case as alleged in the petition. The parties will enter appearance before the Tribunal on 27/08/12. The entire exercise shall be completed by the Tribunal within three months from the date of appearance of the parties before the Tribunal. Sd/PIUS C. KURIAKOSE JUDGE Sd/A. V. RAMAKRISHNA PILLAI JUDGE kns/- //TRUE COPY// P.A. TO JUDGE M. A. C. A No.127 of 2007 -6-