National Insurance Company Ltd. v Seenath and Others (MACA 971 of 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN MONDAY, THE 30TH DAY OF MAY 2016/9TH JYAISHTA, 1938 MACA.No. 971 of 2007 ( ) ------------------------- AGAINST THE AWARD IN OPMV 306/1997 of ADDL. MACT,PALAKKAD DATED 2511-2006 APPELLANT(S): ------------ NATIONAL INSURANCE COMPANY 405 B/10,MELLUR MAIN ROAD,BHAVANI,, TAMIL NAD 638 302,REP.BY ITS DEPUTY MANAGER,, NATIONAL INSURANCE COMPANY LTD,, KOCHI REGIONAL OFFICE,PB NO.3235,OMANA BLDGS,, JEWS STREET,PADMA JUNCTION, KOCHI- 682035 BY ADV. SRI.LAL GEORGE RESPONDENT(S): -------------1. SEENATH, AGED 29 YEARS, W/O. DECEASED IQBAL, RESIDING AT PODIPPARA,KALLEKKAD P.O,, PIRAYIRI VILLAGE,PALAKKAD TALUK. 2. NISHAD,AGED 10 YEAR,S/O.DECEASED IQBAL, RESIDING AT PODIPPARA,KALLEKKAD P.O,, PIRAYIRI VILLAGE,PALAKKAD TALUK., REPRESENTED BY IST PETITIONER MOTHER AND NEXT, FRIEND. 3. SHANIBA,AGED 8 YEARS,D/O.DECEASED IQBAL, RESIDING AT PODIPPARA,KALLICKKAD P.O,, PIRAYIRI VILLAGE,PALAKKAD TALUK., REP.BY THE IST PETITIONER MOTHER AND NEXT FRIEND. 4. INSHAMAMUHAK,AGED 6 YEARS, S/O.DECEASED IQBAL,, RESIDING AT PODIPPARA,KALLICKKAD P.O,, PIRAYIRI VILLAGE,PALAKKAD TALUK., REP.BY THE IST PETITIONER MOTHER AND NEXT FRIEND. 5. N.SENTHILKUMAR,AGD 30 YEARS, S/O.NACHIMUTHU,INKUR,PERINTHURAI,PERIYAR DISTRICT,, TAMIL NADU. 6. L.M.SENGKOTTIYAN,AGED 40 YEARS, S/O.MANIKA KOUNDER,160A,LAKAPURAM,, EAST STREET,LAKAPURAM P.O,ERODE TALUK,, TAMIL NADU,638 002. R1-R4 BY ADV. SRI.T.K.SANDEEP THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30-05-2016, ALONG WITH MACA 1066 AND 1116 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.N. Ravindran &** ## **K. Ramakrishnan, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **M.A.C.A.Nos.971, 1066 and 1116 of 2007 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 30[th] May, 2016** ## **JUDGMENT** ## **K. Ramakrishnan, J.** The third respondent insurance company in O.P.(MV) Nos.306, 336 and 337 of 1997 on the file of the Motor Accidents Claims Tribunal, Palakkad is the appellant in these cases. These three claim petitions were filed by the legal heirs of the deceased who were travelling in a car, seeking compensation for the death of their breadwinner in the accident occurred on 4.1.1997. O.P.(MV) No.306 of 1997 was filed by the legal heirs of Iqbal, the driver of the car in which the other two deceased persons, viz. Murukesan and Baputty were travelling, in respect of whose death the respective legal heirs have filed O.P.(MV) Nos.336 and 337 of 1997. In all these cases the claimants filed the applications under section 163-A of the Motor Vehicles Act (for short 'the Act'). But the allegations in the claim petitions were made as though they were filed under section 166 of the Act claiming compensation under other heads other than the amount awardable under the second schedule to section 163A of the Act as well. The common allegation in all these cases was that the deceased Iqbal was driving the car from Coimbatore to Palakkad side on 4.1.1997 at about 5 a.m. and deceased Murukesan and Baputty 2 MACA Nos.971, 1066 & 1116/2007 were travelling in the car as passengers and when it reached the place of occurrence, the lorry with No.TN-33 D/0369 driven by the first respondent, owned by the second respondent and insured with the third respondent came from the opposite direction in a negligent manner and hit against the car. The claimants in O.P.(MV) No.306 of 1997 claimed that the deceased was a driver-cum-loading mazdoor aged 35 and getting a monthly income of Rs.4,000/- at the time of accident and they claimed a total compensation of Rs.4,62,200/- on various heads. The claimants in O.P.(MV) No.336 of 1997 who are the legal heirs of deceased Murukesan claimed that the deceased was aged 22 years and engaged in seasonal business of his own and getting a monthly income of Rs.5,000/-. They claimed a total compensation of Rs.5,16,900/- on various heads. The claimants in O.P.(MV)No.337 of 1997 who are the legal heirs of Baputty claimed that the deceased was aged 34 years, driver by profession and getting a sum of Rs.4,000/per month. They claimed a total compensation of Rs.4,64,700/- on various heads. According to them, the first respondent was responsible for the accident and there was no negligence on the part of the driver of the car and respondents 1 to 3 are jointly and severally liable to pay the compensation. 2. Respondents 1 and 2 in all these cases entered appearance and submitted written statement admitting that the first respondent was the driver and second respondent was the owner of the lorry but 3 MACA Nos.971, 1066 & 1116/2007 they denied the negligence on the part of the first respondent and attributed negligence on the part of the driver of the car in which all the deceased persons were travelling, either as driver or passenger. They also contended that the car was driven in a rash and negligent manner and hit on the rear side of the lorry which was parked near Chavady Forest check post. It was also alleged that the vehicle was carrying sandalwood in an illegal manner after manipulating the vehicle number with false number plate. Police have registered a case under the provisions of Tamil Nadu Forest Act against the deceased persons. The lorry was insured with the third respondent and if at all any compensation is payable, the third respondent is liable to pay the amount. 3. The third respondent filed a written statement in all these cases admitting the insurance of the lorry and they have reiterated the contentions raised by respondents 1 and 2 regarding the manner in which the accident occurred. They have further stated that the deceased persons were chargesheeted under the provisions of Tamil Nadu Forest Act and Sandalwood Transit Act. The owner, driver and the insurance company of the car were also necessary parties to the proceedings. Since there was no negligence on the part of the driver of the lorry and the accident had not occurred as stated in the claim petitions, the claim petitions are not maintainable under section 163-A of the Act. They prayed for dismissal of the claim petitions. 4 MACA Nos.971, 1066 & 1116/2007 4. Joint trial was ordered and one of the claimants in each case were examined as Pws.1 to 3 and Exts.A1 to A9 were marked on the side of the claimants. Ext.B1 and Ext.X1 were marked on the side of the respondents and no oral evidence adduced on the side of the respondents. After considering the evidence on record, though the tribunal formed an opinion that the car in which the deceased persons were travelling was driven in a high speed, but relying on the decision reported in **United India Insurance Company Ltd. v. Rukhya** (2006(4) KLT 192), came to the conclusion that the negligence aspect need not be gone into in a claim under section 163A of the Act and held that the applications are maintainable under section 163A of the Act. In all these cases the tribunal did not believe the evidence of the claimants regarding the income of the deceased but had taken the notional income as provided under the Second Schedule to the Act and awarded a compensation of Rs.1,79,500/- each in all the cases holding that respondents 1 to 3 are jointly and severally liable to pay compensation to the claimants and directed the third respondent insurance company to deposit the amount as insurer of the lorry. Aggrieved by the award passed by the tribunal, the present appeals have been preferred by the appellant. 5. Heard Shri Lal George, learned counsel appearing for the appellant insurance company in all these cases and Shri T.K.Sandeep, learned counsel appearing for the claimants/respondents. Since the 5 MACA Nos.971, 1066 & 1116/2007 insurance is admitted and the interest of the insured is also protected by the insurance company, notice to the driver and owner of the lorry who were made as respondents 1 and 2 in the tribunal, was dispensed with in these appeals. 6. Learned counsel for the insurance company, the appellant in all these cases submitted that since it is a self accident as far as the driver of the car is concerned, the tribunal should not have entertained the application filed by his legal heirs, under section 163A of the Act. Further, in all these cases the annual income of the claimants exceeds Rs.40,000/- and as such, in view of the dictum laid down in the decision reported in **Deepal Girishbhai Soni v. United India Insurance Co. Ltd.** (2004 (2) KLT 395), the application under section 163A of the Act is not maintainable. Further, in the absence of the owner, driver and insurer of the car, the applications are not maintainable, as for the purpose of deciding the question of negligence their presence is also required. So, according to him, the tribunal was not justified in holding that the applications are maintainable under section 163A of the Act. 7. On the other hand, learned counsel for the claimants/respondents submitted that as regards the question of self accident is concerned, the question has been referred to a larger Bench by the Apex Court in **United India Insurance Co. Ltd. v. Sunilkumar and another** {(2014) 1 SCC 680}. Further, in the 6 MACA Nos.971, 1066 & 1116/2007 decision reported in **National Insurance Company v. Sinitha** (2011 (4) KLT 821 - SC), the Apex Court has held that it is open to a concerned party (owner or insurer) to defeat a claim raised under section 163A by pleading and establishing anyone of the three faults, viz. “wrongful act”, “neglect” or “default”. In the decision reported in **Oriental Insurance Co. v. Hansrajbhai Kodala** {(2001) 5 SCC 175}, the Apex Court has held that the claim under section 163A is under no fault theory and negligence is not relevant and it is not an interim award as in the case of section 140 but it is a final award. Learned counsel also relied on the decision reported in **National** **Insurance Co. Ltd. v. Malathi C. Salian** (2003 (3) KLT 460) where a Full Bench of this court has held that the insurance company cannot defeat the claim under section 163A on the ground that the death or disablement had occurred due to the wrongful act, neglect or default on the part of the deceased or the disabled person. In the decision reported in **Oriental Insurance Co. Ltd. v. Joseph** (2012 (2) KLT 132) another Full Bench of this court considered the question as to whether the decision reported in **Malathi C. Salian's case** (supra) was good law in view of **Sinitha's case** (2011 (4) KLT 821 - SC) and held that in the case of a self accident an application under section 163A of the Act will not lie unless the policy is covered such incidents as well. Learned counsel also relied on an unreported decision of this court in M.A.C.A.No.253 of 2009 ( **New India Assurance Company** 7 MACA Nos.971, 1066 & 1116/2007 **Ltd. v. P.N. Somasekharan Nair and others** ) for the proposition that the dictum laid down in the decision reported in **Hansrajbhai Kodala's case** (supra) is a binding precedent and the question of negligence need not be gone into in claim under section 163A of the Act. However, since the Apex Court has referred the matter to a larger Bench to consider these aspects, we are not going into the legality or otherwise of the observations made by another Division Bench regarding the same question in M.A.C.A.No.253 of 2009 which was decided on 17.11.2014. We are deciding the maintainability of the applications on other aspects in view of the dictum laid down in **Deepal Girishbhai Soni v. United India Insurance Co. Ltd.** (2004 (2) KLT 395 - SC) where a three Judge Bench of the Supreme Court has held that “we do not agree with the findings in **Kodala** (supra) that if a person invokes provisions of section 163A, the annual income of Rs.40,000/- per annual shall be treated as a cap. In our opinion, the proceedings under section 163A being a social security provision, providing for a distinct scheme, only those whose annual income is upto Rs.40,000/- can take the benefit thereof. All other claims are required to be determined in terms of Chapter XII of the Act.” If that be the case, in these cases the income claimed by the claimants is more than Rs.40,000/- per annum as they have claimed monthly income between Rs.4,000/- and Rs.5,000/- respectively in all the cases. Further, if the claim is made on the basis that the annual MACA Nos.971, 1066 & 1116/2007 8 income is more than Rs.40,000/-, the court need not go into the question as to whether what would be the income and decide the question as to whether the application is maintainable under section 163A of the Act or not. The maintainability of the application has to be gone into by the tribunal on the basis of the averments made in the petition at that time and not on the basis of the evidence at a later stage. This was supported by a decision of another Division Bench of this court reported in **National Insurance Company Ltd. v. Aravindakshan** (2016 (2) KLT 711). If that be the case, the exercise made by the tribunal in fixing the monthly income of the deceased below Rs.40,000/- per annum and awarding compensation under section 163A of the Act is unsustainable in law and the same is liable to be set aside. Since we are dismissing the claim petitions on the ground that the applications themselves not maintainable as the claimants have claimed that the deceased persons were having an annual income of more than Rs.40,000/- and in such a case the claim is not maintainable, we are not going into the other aspects of the case. 7. So, the common award passed in all the three cases making the insurance company liable to pay the amount of compensation are set aside, on the ground that the applications are not maintainable under section 163A of the Act and there was no claim for the claimants even in the appeals that the claims were made under section 166 of 9 MACA Nos.971, 1066 & 1116/2007 the Act and the tribunal ought to have considered the applications under section 166 of the Act. The appeals are allowed and the applications filed by the claimants under section 163A of the Act are dismissed leaving open the remedy of the claimants to file fresh applications in accordance with law, if so advised. The question regarding negligence or the maintainability etc. to be raised in those claims by the respondents, viz. the owner, driver and insurer of the lorry is also left open and that can be considered if such an application is filed in accordance with law on the basis of the evidence available on record. Considering the circumstances of the case, the parties are directed to bear their respective costs throughout. If any amount is deposited by the insurance company before the tribunal, the tribunal is directed to refund the same to the insurance company. ## **( P.N. Ravindran, Judge)** ## **(K. Ramakrishnan, Judge)** ## **kav/**