National Insurance Company Ltd. v. Sajitha Beegom N. 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** **FRIDAY, THE 13TH DAY OF JULY 2012/22ND ASHADHA 1934** **MACA.No. 2015 of 2010 ( )** **------------------------OPMV.1466/2003 of M.A.C.T.,ATTINGAL** **APPELLANT/4TH RESPONDENT IN OP(MV) NO.1466/03: ----------------------------------------------------------------------------** **NATIONAL INSURANCE COMPANY LTD., TRIVANDRUM DIVISIONAL OFFICE, KESAVA TOWERS GANDHANIAMMAN COIL ROAD, PULIMOODU, TRIVANDRUM REPRESENTED BY ITS MANAGER, REGIONAL OFFICE M.G.ROAD, ERNAKULAM.** **BY ADVS.SRI.LAL GEORGE SMT.M.J.INDUJA** ## **RESPONDENTS/CLAIMANTS AND RESPONDENTS 1,2 AND 3:** **-----------------------------------------------------------------------------------------** **1. SAJITHA BEEGOM.N., W/O.LATE NOUSAHD, SAJITHA MANZIL, PALLIMUKKU, ALAMCODE.P.O. ATTINGAL, TRIVANDRUM DISTRICT- 695 101.** **2. MASTER AJIMSHA (MINOR), S/O.LATE NOUSHAD OF DO. DO., 695101.** **3. ABDUL SAATHAR, S/O.MAITHEEN KUNJU, MELATHIL VEEDU, MEENAD EAST, CHATHANNOOR P.O. KOLLAMD DISTRICT 691 572.** **4. BASHEERA BEEVI, W/O.ABDUL SATHAR OF DO. DO.** **5. RAJANDRAN, S/O.RAMASWAMY GOUNDER, DOOR NO.4/39, CHINNA MUTHALAIPATTY MUTHALAIPATTY P.O., NAMACKAL, TAMIL NADU PIN 605003.** ## **MACA.No. 2015 of 2010 ( )** ## **6. UNITED INDIA INSURANCE COMPANY LTD., DIVISIONAL OFFICE NO.1 CWC BUILDING, LMS COMPOUND PALAYAM, TRIVANDRUM- 695001.** ## **7. GOPALAKRISHNA PILLAI, LEKSHMI BHAVAN, KAITHAKKUZHY, AADICHANALLOOR KOLLAM, PIN 691 001.** **R1 TO R4 BY ADV. SRI.NAGARAJ NARAYANAN R1 TO R4 BY ADV. SRI.RAJAN VELLOTH BY ADV. SRI.N.NARAYANAN NAIR BY ADV. SRI.SAIJO HASSAN BY ADV. SRI.PRATHAP PILLAI BY ADV. SRI.BENOJ C AUGUSTIN BY ADV. SRI.RAFEEK. V.K. BY ADV. SRI.SEBIN THOMAS R6 BY ADV. SRI.T.V.AJAYAKUMAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BP** ## **PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ.** --------------------------------------------- M.A.C.A. No.2015 of 2010. --------------------------------------------Dated this the 13[th] day of July, 2012. ## **JUDGMENT** ## **Ramakrishna Pillai, J** . The insurer of a motorcycle, which was involved in a road traffic accident on 18/09/2003, has come up in appeal. 2. A petition under Section 163A of the Motor Vehicles Act, 1988 was filed by respondents 1 to 4 before the Tribunal claiming compensation to the tune of Rs.7,29,500/- on account of the death of one Noushad, a 28 year old married man. 3. Allegedly, the deceased while riding his motorcycle went and hit the rear side of a lorry which was parked on the eastern side of the Tholikkuzhy Pallimukku public road. The deceased was proceeding from north to south. 4. As the claim was one under Section 163A, the learned Tribunal did not go into question of negligence. After quantifying the amount of compensation the appellant, who was the insurer of the motorcycle and the 6[th] respondent, who was the insurer of the lorry involved in accident were saddled with the liability in the ratio 1:1. _**M.A.C.A No.2015 of 2010**_ -:2:- 5. In this appeal, the appellant insurance company is challenging the finding of the Tribunal, making them liable to pay 50% amount of the compensation, mainly on two grounds: (1) As per the charge sheet, the deceased himself was negligent. (2) The deceased was riding his motorcycle with the consent of the registered owner and accordingly, he stepped into the shoes of the registered owner, thereby making his legal representatives dis-entitled to claim compensation. 6. We have heard the learned counsel for the appellant insurance company, the learned counsel for respondents 1 to 4, who are the claimants and the learned counsel for the 6[th] respondent insurance company. The impugned award was also perused. 7. It is relevant to note that the learned Tribunal did not go into the question of negligence, as the claim was one under Section 163A of the Motor Vehicles Act. 8. The argument advanced by the learned counsel for the appellant is that the fact that the deceased was rash and negligent in driving the motorcycle, has escaped from the attention of the learned Tribunal. The learned counsel for the 6[th] respondent, who is _**M.A.C.A No.2015 of 2010**_ -:3:- the insurer of the lorry would also contend that they were unnecessarily saddled with the liability of paying the compensation, as the deceased himself was negligent. To substantiate their argument, both of them relied on the police charge sheet which was against the deceased. 9. During the course of argument, a copy of Ext.A2 scene mahazar was made available to us for perusal. Ext.A2 would reveal that the road at the accident spot is lying north south direction. The total width of the tarred portion of the road is six metres. The scene mahazar would reveal that the lorry was parked on the eastern side of the road and it was occupying a space having a width of 2.10 metres, out of the total width of six metres. What can be discerned from Ext.A2 is that there was negligence on the part of the driver of the lorry also, as the lorry was parked against traffic rules i.e., making obstruction to the vehicles which, pass by. 10. On a totality of the evidence now placed on record, we are of the definite view that the accident had occurred due to the negligence of the deceased as well as the driver of the lorry, and we fix the contribution of the deceased and the driver of the lorry in the ratio 1:1. _**M.A.C.A No.2015 of 2010**_ -:4:- 11. It is trite after the decision of the Apex Court in _**National Insurance Company Ltd. v. Sinitha (2011 (2) KLT 821(SC))**_ that the claim under Section 163A of the Motor Vehicles Act can be defeated on the basis of the considerations regulated by fault liability principles. As we have found that there was 50% contributory negligence on the part of the appellant, the total amount of compensation payable to the claimants, shall stand reduced by 50%. 12. Regarding the second ground stated above, the learned counsel for the appellant insurance company relied on the decision of Apex Court in _**Nigamma and another v. United India Insurance Co. Ltd., (2009 ACJ 2020)**_ . In that case, the maintainability of a claim petition filed by the dependents of the deceased under Section 163 of the Act was considered by the Apex Court. In that case, the deceased was riding a motorcycle, which dashed against a bullock cart proceeding ahead, resulting in the death of the motorcyclist. It was in evidence that the deceased had borrowed the motorcycle from its owner. Allowing the claim petition filed by the legal representatives under Section 163A of the Act, the Tribunal awarded compensation and directed the insurance _**M.A.C.A No.2015 of 2010**_ ## -:5:- 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. The said decision was upheld by the Apex Court holding that as the deceased who was the borrower, stepped into the shoes of the owner, 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. 14. The fact situation in this appeal is similar to one referred to above. 15. The learned counsel for the respondent/claimant would argue that so long as the appellant company failed to establish that there was negligence on the part of the deceased, claimants are entitled to get compensation. 16. It is an admitted case that the motorcycle involved in the accident belongs to 7[th] respondent and the deceased was not under any contract of employment with the 7[th] respondent. The deceased was borrower of the vehicle which caused the accident. It is true that another vehicle also was involved and as we have already _**M.A.C.A No.2015 of 2010**_ -:6:- found that there was 50% contributory negligence on his part. In the light of the decision of the Apex Court in _**Nigamma's case (cited supra)**_ , we are of the definite view that the claim petition as against the appellant insurance company is not maintainable, as the deceased stepped into the shoes of the registered owner. 17. On an anxious consideration of the entire facts and circumstances of the case, we allow the appeal and set aside impugned award so far it relates to the direction of payment of 50% of the compensation by the appellant. We hold that the respondents 1 to 4, who are the claimants, are entitled to get only 50% of the compensation and the same can be recovered from 6[th] respondent, who is the insurer of the lorry involved in the accident. In the result, the appeal is allowed. No costs. Sd/- **PIUS C. KURIAKOSE JUDGE** Sd/- **A. V. RAMAKRISHNA PILLAI JUDGE** //TRUE COPY// P.A TO JUDGE krj