New India Assurance Co. Ltd. v. Aboobacker and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 09TH DAY OF MARCH 2021 / 18TH PHALGUNA, 1942** ## **MACA.No.568 OF 2011** **AGAINST THE AWARD IN OPMV 418/2004 DATED 03-02-2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/S:** **THE NEW INDIA ASSURANCE CO. LTD. ALUVA NOW REPRESENTED BY ITS DEPUTY MANAGER,, REGIONAL OFFICE, M.G.ROAD, KOCHI-11.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT/S:** **1 ABOOBACKER S/O MOIDU CHERIKKAPPADATH HOUSE, CHAKKARAKULAMBU, KUMARAPUTHOOR P.O.,, MANNARKKAD TALUK678 583.** - **2 ZEENATH D/O.ABOOBACKER DO. DO. DO. 3 ABOOBACKER SIDDIQUE S/O.ABOOBACKER DO. DO.** - **4 JAMEELA D/O.ABOOBACKER DO. DO.DO.** - **5 MARIA W/O.HAMSA POTHAN VEEDU PALLIKUNNU, KUMARAMPUTHOOR P.O., MANNARKKAD TALUK,, PIN 678583.** - **6 UMAIBHA WO.LATE MUTHALI CHERIKKAPPADATH HOUSE, CHAKKARAKULAMBU,, KUMARAPUTHOOR P.O., MANNARAKKAD TALUK- 678583.** - **7 NASSAR SO.ABOOBACKER DO. DO.DO. 8 MOHAMMED SHAFIN SO.ABDUL KHADER THANATHPARAMBIL HOUSE, PARAMBAYAM, PUTHUSSERY,, NEDUMBASSERY P.O., ERNAKULAM DISTRICT,, PIN 683 585.** **R1-2 BY ADV. SRI.A.JAYASANKAR R1 BY ADV. SRI.MANU GOVIND R1 BY ADV. SRI.G.SANTHOSH KUMAR P.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 0903-2021, THE COURT ON 09-03-2021 DELIVERED THE FOLLOWING:** ## **P.V.KUNHIKRISHNAN, J** **----------------------------------------------M.A.C.A. No.568 of 2011 -------------------------------------Dated this the 9[th] day of March, 2021** ## **JUDGMENT** This appeal is filed by the 2[nd] respondent in O.P.(M.V.) No. 418/2004 on the file of the Motor Accident Claims Tribunal, Ottappalam. The above claim petition was filed by the respondents 1 to 7 under Sec.163(A) of the Motor Vehicles Act. Originally, the claim petition was disposed of as per the award dated 30.11.2006. The claimants challenged the above award before this Court by filing MACA No.1271/2007 and this Court was pleased to set aside the award and remand the matter to the Tribunal for fresh consideration. Thereafter, the impugned award is passed. 2. The short facts are like this : On 4.11.2004 at about 9.50 pm, at Chengamanad in AluvaAngamali National Highway, the deceased who was riding a motor cycle met with an accident. He sustained serious injuries **MACA.No.568 OF 2011** **3** and he succumbed to the injuries. The claim petition was filed under Sec.163(A) of the Motor Vehicles Act by the legal heirs of the Rasheed@ Hamza for compensation. 3. As I said earlier, after remand, the Tribunal considered the matter afresh. Thereafter, the Tribunal passed an award allowing the claimants to recover and realize a sum of Rs.3,16,500/- along with interest at the rate of 7% per annum. Aggrieved by the above revised award, this appeal is filed. 4. Heard counsel for the appellant and the counsel for the respondents/claimants. 5. The counsel for the appellant submitted that the claim petition itself is not maintainable in the light of the judgment of this Court in **Jiljet v. Stamphen George** [2019 (1) KLT 546]. The counsel submitted that this Court held that the accident while riding a motor cycle by the owner/insured was declared as not an instance to be covered by the insurer in the light of the decision of the Apex Court in **New India Assurance Company v. Sadanand Mukhi** [(2009) 2 SCC 417]. The counsel submitted that there is no legal liability for the insured to satisfy any claim to himself and as such the term any person mentioned in the relevant clause does not take in the insured or rider of the motor cycle who has stepped into the shoes of the insured as held by the Apex Court in **Ningamma and Anr.** v. **United India Insurance Co.Ltd** [AIR 2009 SC 3056]. The sum and **MACA.No.568 OF 2011** **4** substance of the contention is that the rider of the motor cycle is never a third party and no wider coverage was provided in respect of him by paying any additional premium. According to the counsel, the deceased was not an employee of the 1[st] respondent. 6. The counsel for the respondents/claimants submitted that this Court in MACA No.1271/2007 considered all these aspects and rejected the same and thereafter, remanded the appeal for quantification of compensation. That became final. In such circumstances, Insurance Company cannot re-agitate the same before this Court in an appeal filed against the revised award passed by the Tribunal as per the remand order. 7. I think there is some force in the argument raised by the respondents/claimants. MACA No.1271/2007 was filed by the claimants/petitioners before this Court aggrieved by the award dated 30.11.2006 passed by the MACT, Ottappalam in O.P.(M.V.) No.418/2004 and that MACA was allowed after setting aside the award dated 30.11.2006 and remanded the case to the Tribunal for fresh consideration. This Court considered these points in detail in the judgment dated 22.9.2009. The relevant portion is extracted hereunder : “14. The next question is as to whether the deceased was employed by the first respondent. The evidence of PWs. I to 3 supports the case of the appellants that the deceased, during the relevant time, was employed in the hotel belonging to the first respondent. There is no contra evidence adduced in the case. As already stated above, first respondent was not even prepared to mount the box to deny that the deceased was not **MACA.No.568 OF 2011** **5** employed by him or by his father. In the circumstances, we find that based on the evidence, as discussed above, the fact that the deceased was employed in the hotel by the first respondent also stands proved. 23. When the owner himself has permitted the employee to travel on the motor bike for attending to the work connected with employment, the mere fact that he was self-driving the vehicle will not take his case out of the expression 'engaged in driving the vehicle' used in clause (a) of proviso to Section 147 (1) of the Motor Vehicles Act. Being a two wheeler and since the deceased was permitted to ride the motor bike for attending to the work connected with the establishment and thus he was 'engaged' in driving the vehicle at the time of accident, Section 167 of the Motor Vehicles Act gives an option regarding the claims for compensation in certain cases. That is a non-obstante clause, which has an over-riding effect over the Workmen's Compensation Act. If the death or bodily injury arises out of an accident, a person has option to prefer the claim either under the Workmen's Compensation Act or under the Motor Vehicles Act, but not under both. Therefore, in this case, the accident occurred as a user of the motor cycle; that the deceased was riding the motor cycle and he was 'engaged' to drive the vehicle; that he is found entitled to be compensated under the Workmen's Compensation Act, and, therefore, this a case where the claim for compensation arises under both the enactments. Hence, the appellants had option to choose either of these two enactments. The appellants having chosen to file an application under Section 163 A of the Motor Vehicles Act, the only other question to be considered is as to what is the compensation payable under the said provision. 24. Before we proceed further, we have yet to dispose of another contention raised by the Insurance Company. According to them, this being an accident arising out of user of a motor vehicle, self-driven by the deceased, there arises no liability to compensate. In this connection, the insurance company has placed reliance on the decision of this Court in united India Insurance Co. Ltd. v. Vijayarajan (2009 (3) KLT 269). That was a case where the deceased was not the owner of the motor bike in question, and he borrowed the said bike from its real owner. It was held that the deceased cannot be held to be an 'employee' of the owner of the motor bike, although he was authorised to drive the said vehicle by its owner, and, therefore, he would have stepped into shoes of the owner of the motor vehicle, who could not claim compensation under Section 163 A of the Motor Vehicles Act, unless it is covered by a policy wherein such liabilities are undertaken. 25. It is true that if the claim did not arise under the Workmen's Compensation Act, and if the claim has to be independently considered under the Motor Vehicles Act only, as held by this Court in Vijayarajan's case, following the decision of the Apex Court in C.A.Nos.3538 & 3540 of 2009, **MACA.No.568 OF 2011** **6** **(Ningamma and another v. United India Insurance Co.Ltd.)** the claimants, in such a situation, may not be entitled to claim compensation under Sec.163A of the Motor Vehicles Act. But by virtue of the provisions contained in Section 147 of the Motor Vehicles Act, as referred to earlier, an 'employee' who is liable to be compensated under the Workmen's Compensation Act is liable to be covered by a policy of insurance, if he is engaged in driving the vehicle. Therefore, in the case on hand, the facts are quite distinguishable and even the Division Bench has noticed that the deceased therein cannot be held to be an employee of the owner of the motor vehicle, but the deceased in this case was an employee under the owner of the vehicle and he was employed in a hotel belonging to the first respondent, who also happened to be the owner of the vehicle. 26. In the factual situation, as narrated above, we find that the appellants are entitled to be compensated in terms of Section 163A of the Motor Vehicles Act. However, the Tribunal, did not quantify the amount, but proceeded on the basis that the compensation will be payable, only if dependency is proved. In a case where a person dies as a result of the user of the motor vehicle, the claim of the legal heirs is not based on the dependency factor, as representatives who stepped into the shoes of the estate of the deceased. In Smt.Manjuri Bera v. Oriental Insurance Co. Ltd. (AIR 2007 SC 1474), the Apex Court held that even if there was no dependency, the appellants are entitled to compensation under the no-fault liability, as the legal representatives. 27. True, that the above claim arose under Section 140 of the Motor Vehicles Act. But it is contended that same principle should be extended to a claim under Section 163A of M.V. Act as well. However it is not necessary to consider in this case as to whether Sec.163A of the M.V. Act will apply by extending the same principles arising in a claim under Sec. 140 of the Act. Here the word 'dependent' itself is defined under the Workmen's Compensation Act. So, if the claimants fall under the definition of the term 'dependent' then a further proof of dependency does not arise. When the legislature by its wisdom has chosen to define the term, all that is required to be shown is that the claimant is 'dependent' as defined. The same is not to be adjudicated further. So the Tribunal was not right in rejecting the application on the ground of absence of economic dependency. In the absence of any argument raised or considered, we leave the actual amount to be awarded to be considered by the Tribunal at the first instance. 28. We may, at the risk of repetition state that a claim for compensation arising both under the Workmen's Compensation Act as also under the Motor Vehicles Act, and the option having been exercised under Section 167 of M.V. Act, legal compensation payable should have been worked out. That does not depend upon the dependability factor at all. The liability to pay compensation having arisen under the Workmen's **MACA.No.568 OF 2011** **7** Compensation Act and in this case when accident occurred as a result of the user of the motor vehicle, the further question as to whether the appellants were dependent on the deceased will not arise. As we have already pointed out, such question may arise in a case where the claim rests mainly on the provisions of the M.V. Act. But when the claim having been proved to be sustained under Workmen's Compensation Act, and an option under Section 167 of M.V. Act having been given to the claimants, it is impermissible to reject the claim on the ground of non-proof of dependency. Otherwise, it will nullify the effect of Section 147 read with Section 167 of the Motor Vehicles Act. All that is to be proved in a situation where the deceased is an employee entitled to be compensated under Workmen's Compensation Act is to show that he died as a result of a motor accident. Once both these factors are proved, necessarily, instead of working out the compensation payable under the Workmen's Compensation Act, the option is available to claim compensation under the M.V.Act. In such cases, it is not necessary to prove dependency factor and the Tribunal ought to have quantified the amount as available to the claimants under the law.” 8. After the above finding, the Division Bench of this Court remanded the matter to the lower court for quantifying the compensation. Thereafter, the Tribunal quantified the compensation. In para No. 9 of the impugned award, the Tribunal clearly stated that in the light of the judgment of this Court in MACA No.1271/2007, the other contentions are not considered. Para No.9 of the impugned award is extracted hereunder : 9. “The point :- The learned counsel for R2 argued in detail opposing the claim on many ground such as the petition u/s 163-A is not maintainable since the accident was due to the negligence of deceased himself; that the deceased was working under Abdul Khader, the father of R1, and not under 1[st ] respondent and hence the claim will not come under the workmen's compensation Act, etc. But I am not considering any one of those matters in this award since all the above said contentions have been repelled and found against the respondents in this case, as per the order of Hon'ble High Court in MACA No. 1271/2007 dated 22.9.2009.” 9. Now, the counsel for the appellant want to re-agitate the same issue, which is decided by the Division Bench of this Court while **MACA.No.568 OF 2011** **8** disposing MACA No.1271/2007. The observations and findings in MACA No.1271/2007 became final. Admittedly, that judgment is not challenged by the Insurance Company. This Court only directed the Tribunal to quantify the compensation. In such circumstances, the revised order passed by the Tribunal based on the remand order of this Court cannot be challenged by the Insurance Company to re-agitate the entire issue again. Therefore, according to me, the contention of the Insurance Company is unsustainable. Hence, the appeal is dismissed. sd/- **P.V.KUNHIKRISHNAN JUDGE** SKS