National Insurance Company Ltd. v. A.K. Sujatha and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH THURSDAY, THE 4TH DAY OF AUGUST 2016/13TH SRAVANA, 1938 MACA.No. 847 of 2009 ( ) ------------------------AGAINST THE AWARD IN OPMV 1112/2001 of M.A.C.T.,PUNALUR DATED 25-03-2008 APPELLANT(S)/2ND RESPONDENT: --------------------------- THE NATIONAL INSURANCE CO. LTD. KOTTARAKKARA, REP. BY ITS MANAGER, REGIONAL OFFICE, OMANA BUILDING, M.G.ROAD, KOCHI-35. ## BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S)/CLAIMANTS/IST RESPONDENT: --------------------------------------- ## 1. A.K.SUJATHA W/O.LATE PRASAD, CHARUVILA VEEDU, KAMUKUMCHERY P.O.,, PIRAVANTHOOR. 2. PRIYA PRASAD, D/O.LATE PRASAD, CHARUVILAVEEDU, KAMUKUMCHERRY P.O.,, PIRAVANTHOOR. 3. L.BHARATHY, M/O.LATE PRASAD, CHARUVILAVEEDU, PIRAVANTHOOR. ## 4. K.JANARDHANAN PILLAI, SECRETARY, KANNAMKARA-NILAMEL-PADASEKHARA SAMITHY,, KAMUKUMCHERRY P.O., PIRAVANTHOOR. R1-3 BY ADV. SRI.ANCHAL C.VIJAYAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR** ## **& K.P.JYOTHINDRANATH, JJ.** **========================== M.A.C.A. No.847 OF 2009 ==========================** Dated this the 4[th] day of August, 2016 ## **JUDGMENT** _Ravikumar, J._ This appeal is filed by the National Insurance Company Ltd., the second respondent before the Motor Accidents Claims Tribunal, Punalur in O.P.(MV).No.1112 of 2001 against the judgment and award passed thereon. Respondents 1 to 3 herein were the claimants before the Tribunal. They are respectively the wife, daughter and mother of one Prasad for whose death in a motor vehicle accident that they filed the said claim petition. On 9.5.2000, the said Prasad was ploughing with a power tiller belonging to Padasekhara Samithi of which the fourth respondent was the then secretary, the paddy field of one Viswanathan. During the course of ploughing, the power tiller fell into the reverse gear and consequently, Prasad fell on the blades of **M.A.C.A.847/2009** 2 the power tiller. The evidence on record would reveal that his body was taken after cutting the blades of the power tiller. It is in the said circumstances that the claim petition was filed. 2. Originally, the claim petition was filed under section 166, M.V Act seeking compensation of `7,00,000/-. Later, an amendment application was filed and the claimants were permitted to convert the same as a petition under section 163A of the M.V Act. On the side of the appellants, the first respondent/first claimant and one Puspan respectively were examined as PWs 1 and 2 and Exts.A1 to A6 were got marked. On the side of the respondents, no oral evidence was adduced. But Exts.B1 to B3 were got marked. A perusal of the records would reveal that the policy of the vehicle involved in the accident was also produced and marked before the Tribunal. Somehow or other, it was not properly noted and included in the appendix. But, a perusal of the award would show that the Tribunal had made a reference to the said policy therein. As per the impugned award, the Tribunal granted a total compensation of `4,04,000/- with **M.A.C.A.847/2009** 3 interest at 7.5% per annum from the date of the petition till realisation with a cost of `2,000/-. This appeal is filed on being aggrieved by and dissatisfied with the award raising various contentions. 3.We have heard the learned counsel Sri.George Cheriyan appearing for the appellant and Sri.Anchal C.Vijayan for respondents 1 to 3. Though notice was served on the fourth respondent, the Secretary of the Padasekhara Samithy, it was returned with endorsement 'refused'. On 11.8.2015, the service of notice on the fourth respondent was declared as complete. The learned counsel appearing for the appellant contended that the accident occurred solely due to the negligence on the part of the deceased Prasad. It is also contended that the claim petition ought not have been entertained by the Tribunal as going by the averments regarding the monthly income in the claim petition, the annual income of the deceased was above `40,000/-. It is contended that the deceased was not having a valid driving licence at the time of the occurrence for driving a power tiller and therefore, the appellant is not liable to indemnify the insured **M.A.C.A.847/2009** 4 viz., the fourth respondent. 4. Per contra, the learned counsel for respondents 1 to 3 herein submitted that a scanning of the evidence on record would reveal that the factum of accidental death of Prasad arising out of the use of a motor vehicle viz., power tiller was not at all in dispute, as is evident from the impugned judgment. It is further submitted that the claim petition was filed in the year 2001. Though it was initially filed under section 166 of the M.V Act, it was converted as a petition under section 163A. The appellant had not challenged its conversion as an application under section 163A and add to it, the appellant had participated in the proceedings and adduced evidence during the enquiry. It is also contended that the fourth respondent, the owner of the vehicle in question, also did not challenge the said conversion, and both of them contested the claim, after such conversion, without any demur. It is further submitted that considering the fact that the claim petition was filed as back as in the year 2001, it would be unjust to relegate the parties to seek for compensation under the Workmen's **M.A.C.A.847/2009** 5 Compensation Act when once it is found that Prasad for whose death they claimed compensation had actually met with an accidental death and at that point of time, there existed an employee-employer relationship between the deceased and the fourth respondent. Relying on the decision of the Division Bench of this Court in **New India Assurance Company Ltd. v. Lissy and others [2016 (1) KHC 130 (DB),** the learned counsel for the respondents contended that even though the compensation was granted under section 163A, M.V.Act, this Court could sustain the award to the extent the insurer is liable to indemnify the insured as if it is an award passed under the Workmen's Compensation Act, taking into account all relevant facts. 5. Before dealing with the rival contentions, we are of the considered view that it is only proper to refer to certain aspects succinctly. In this case, the accident occurred in the year 2000 and the claim petition was filed in the year 2001. In short, about 16 years have elapsed since the date of the accident in which Prasad lost his life. His wife, minor daughter and mother are the **M.A.C.A.847/2009** 6 claimants/respondents 1 to 3 herein. They moved the claim petition under section 166, M.V Act and later, got it converted as an application under section 163A. True that even while pursuing the matter under section 163A, the claim regarding the monthly income of the deceased in the claim petition remained as `4,500/-. But, evidently, the Tribunal took the monthly income only as `3,000/- for calculation purpose. The evidence on record and the rival pleadings would reveal that the factum of death of Prasad during the use of a motor vehicle was not at all in dispute before the Tribunal. Evidently, the deceased was not having a license to drive the power tiller which was used to plough field of Viswanathan at the relevant point of time. In the impugned award, it is seen that the Tribunal relied on a decision of a learned Single Judge of this Court in **Pattanakkad Panchayat and another v. Ponnappan and another [2004 (2) ACJ 1431]** to hold that a licence is not required for operating a power tiller. After the passing of the award by the Tribunal, a Division Bench of this Court in the decision in **Gopalakrishnan v. Rumugham** [ **2013 (2)** **M.A.C.A.847/2009** 7 **KLT 175]** overruled the decision in **Ponnappan** 's case and held that for driving a power tiller, a driving licence under section 3 of the M.V Act is mandatory. 6. In this case, the fourth respondent herein/first respondent before the Tribunal who was under a statutory liability and responsibility, in terms of the provisions under section 5 of the M.V Act to ensure that the person entrusted with his vehicle to drive satisfies the conditions under section 3 of the M.V Act, stated that no licence is required for operating a power tiller. True that, in the same breath, the fourth respondent stated that the deceased was having a license. But nothing is there on record to show that deceased Prasad was having a driving license to operate/drive a power tiller. It is evident from the written statement that the fourth respondent was fully aware of his statutory liability under section 5 of the M.V.Act. In such circumstances, if there is violation of the policy conditions and if there is failure on his part to discharge the liability under section 5 of the M.V.Act, he cannot wriggle out of his liability. But at the same **M.A.C.A.847/2009** 8 time, that by itself cannot be a reason to defeat the claim of the claimants. The Tribunal cannot be found fault with, in holding that licence was not necessary for driving the power tiller, as at the point of time, the decision in **Ponnappan** 's case (supra) was actually holding the field. It was reversed only subsequently in the year 2013. In the contextual situation, it will only be appropriate to refer to a decision of a Division Bench of this court in **Oriental Insurance Co. Ltd. v. Jimmy and another [2004 ACJ 900]** for a proper consideration of the submissions made by the learned counsel for the respondents/claimants that it would only be just and proper in this case to consider whether the impugned award could be sustained to the extent the appellant is liable to compensate the insured under the Workmen's Compensation Act. In that case, the Division Bench held that when the employee-employer relationship as also the accident are not in dispute, the question whether the workman was having a proper licence or not, whether he was actually a driver or not, are not matters available to an insurer to defeat the claim of such an employee. It was **M.A.C.A.847/2009** 9 held that when the insurer had undertaken the liability that had befallen upon the insured, necessarily, the insurer has to discharge that burden and for violation of policy, if any, insurer could seek for appropriate remedy. The observation that the insurer could seek for appropriate remedy was evidently made as the case before the Division Bench was one arising from an order of the Commissioner under the Workmen's Compensation Act. It is to be noted that the case on hand arises from the judgment and award passed by a Claims Tribunal in a claim petition filed under section 163A of the M.V Act. In the light of the discussions as above, we are also of the view that at this distance of time, if we are relegating respondents 1 to 3 to seek for remedy available to them under the Workmen's Compensation Act, it would result in miscarriage of justice and according to us, interest of justice can be subserved by limiting the consideration of the appeal in terms of the submissions made by the learned counsel for the respondents referred hereinbefore based on the decision in **Jimmy** 's case (supra). The fact that the income of the deceased was claimed as **M.A.C.A.847/2009** 10 Rs.4,500/- cannot now be treated as a ground for dismissing the claim when the Tribunal took the monthly income for calculation purpose only as `3,000/- and therefore, we are proceeding to consider the aforesaid question in the light of the decision of this Court in **Lissy's** case (supra). It is to be noted that in **Lissy's** case also, the appeal that was considered by the Division Bench was one arising from a judgment and award passed by a Claims Tribunal in a claim petition filed under section 163A of the M.V.Act. Evidently, the Division Bench considered only the question regarding the extent of compensation payable for the death of the driver under the Workmen's Compensation Act. It is also relevant to note that another Division Bench in **New India Assurance Co.Ltd. v. Beena Kumari [2016 (3) KHC 796 DB]** also considered the very same question and virtually, in both the cases, the impugned award only to the extent the insurer was to indemnify the insured under the provisions of the Workmen's Compensation Act was maintained. It is also to be noted that in **Beena Kumari** 's case, the Division Bench further observed that **M.A.C.A.847/2009** 11 negligence of the employee even if it is proved, is immaterial in such circumstances and it is not a deciding factor under the Workmen's Compensation Act if it involves death or permanent disablement. In such circumstances, in the light of the decision in **Lissy's** case and **Beena Kumari's** case, the only question to be decided in this appeal is what exactly is extent to which the insurer is liable to indemnify the insured under the provisions of the Workmen's Compensation Act, in view of the relevant facts and factors obtained in this case. In view of the fact that the Tribunal took the monthly income of the appellant only as `3,000/-, the other factor that is to be taken into account for the purpose of finding the compensation payable under the provisions of the Workmen's Compensation Act, is the relevant factor in terms of schedule 4 with reference to the age of the person concerned. The relevant factor, going by schedule 4 of the Employees Compensation Act, 1923 (which is the substituted name of the Workmen's Compensation Act) for a person aged 37 is 192.14. Taking into account the said twin relevant factors, the compensation payable in **M.A.C.A.847/2009** 12 terms of section 4 has to be computed. In terms of section 4(1)(a), the claimants are entitled to get an amount equal to 50% of the monthly wages of the deceased employee multiplied by the relevant factor. It is to be noted that we are considering the claim treating the deceased as an employee for the purpose of Employees Compensation Act as in the written statement filed before the Tribunal that the fourth respondent has specifically admitted the fact that deceased Prasad was authorised to drive the power tiller for the purpose of ploughing the field of Viswanathan. In terms of the aforesaid relevant factors, the compensation payable for the death of Prasad is `2,88,210/- (50% of `3000 x 192.14). We do not propose to interfere with the percentage of interest granted by the Tribunal viz., 7.5%, from the date of the petition till realisation. In such circumstances, the insurance company is liable to satisfy the award to the extent of `2,88,210/- as provided under the Workmen's Compensation Act in respect of deceased Prasad and the said amount will carry interest at the rate of 7.5% from the date of petition till realisation. The appellant shall deposit the amount **M.A.C.A.847/2009** 13 payable in terms of this judgment within two months from the date of receipt of a copy of this judgment. There will be no order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **K.P.JYOTHINDRANATH (JUDGE)** **spc/** **M.A.C.A.847/2009** 14 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **M.A.C.A.847/2009** 15