New India Assurance Co. Ltd. v. Prema, Sheeba, Deepa, ROPPA and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 29[TH] DAY OF SEPTEMBER 2021 / 7TH ASWINA, 1943** **MACA NO. 448 OF 2009** **AGAINST THE AWARD DATED 08.05.2008 IN OP(MV)NO.194/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD, PALAKKAD** ## **APPELLANT/3RD RESPONDENT:** **NEW INDIA ASSURANCE CO.LTD., SREE VALLI BUILDINGS, ANICODE JUNCTION, CHITTUR, PIN 678 101.** ## **BY ADV SRI.RAJAN P.KALIYATH** ## **RESPONDENTS/CLAIMANTS AND R1, 2 AND 4:** **1 PREMA, AGED 46 YEARS, W/O. LATE VASU, RESIDING AT KOTTAKARA HOUSE, ERIMAYUR POST, ALATHUR TALUK. 2 SHEEBA, AGED 26 YEARS, D/O.LATE VASU, DO. 3 DEEPA, AGED 22 YEARS, D/O. LATE VASU DO. 4 ROPPA, AGED 22 YEARS, D/O. LATE VASU DO. 5 THE MANAGER, M/S ALATHUR DISTRIBUTERS, DEVI BUILDINGS, NURANI JUNCTION, PALAKKAD.** **6 P.J. ALOSIUS, AGED 52 YEARS, S/O. JOSEPH, RESIDING AT C/O.** M.A.C.A.No.448/2009 -:2:- **M/S. ALATHUR DISTRIBUTORS, DEVI BUILDINGS, NURANI JUNCTION,PALAKKAD.** **7 DEVU, AGED ABOUT 71 YEARS, W/O. LATE VELU, RESIDING AT KAMMANTHARA, KOOTTAPURA,, VADAKKENCHERY, ALATHUR TALUK.** ## **ADDL. R8 & R9 IMPLEADED** ***ADDL.R8 KRISHNAN KUTTY, S/O. DEVU, PAPPANAD HOUSE, PADINJAREKAD, MUDPULLUR POST, PALAKKAD.** ## ***ADDL.R9 SATHYABHAMA,** **W/O. VELAYUDHAN, PAPPANAD HOUSE, PADINJAREKAD, MUDPULLUR POST, PALAKKAD.** **ADDITIONAL R8 & R9 ARE IMPLEADED AS LR'S OF 7TH RESPONDENT AS PER ORDER DATED 05.12.2010 IN I.A.NO.3259/2010 IN M.A.C.A. NO.448/2009.** **BY ADVS.SRI.A.R.GANGADAS SRI.JACOB SEBASTIAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.448/2009 -:3:- _Dated this the 29[th] day of September,2021_ ## **J U D G M E N T** The appellant was the third respondent in O.P. (MV)No.194/2002 on the file of the Motor Accidents Claims Tribunal, Palakkad. The respondents 1 to 4 were the claimants and the respondents 5 to 7 were the respondents 1, 2 and 4 before the Tribunal. The additional respondents 8 and 9 are the legal representatives of the deceased seventh respondent. The parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioners had filed the claim petition under Section 163A of the Motor Vehicles Act, 1988, _(in short, 'Act')_ claiming compensation on account of the death of 'Vasu'(deceased), the husband of the first petitioner and the father of the petitioners 2 to 4. It was their case that, on 06.02.2001, while the deceased was walking along the Erimayur-Thillankadu public M.A.C.A.No.448/2009 -:4:- road, when he reached a place named 'Maruthacode', a tempo van bearing registration No.KL-9/E-343(van), driven by the second respondent in a rash and negligent manner, came from the opposite direction and hit the deceased. The deceased was taken to the Crescent Hospital, Alathur and, thereafter, referred to the Medical College Hospital, Thrissur. However, the deceased lost his life on 14.02.2001. The accident occurred due to the negligence of the second respondent. The first respondent was the owner and the third respondent was the insurer of the van. The deceased was a coolie worker and earning a monthly income of Rs.3,300/-. The petitioners were the dependants of the deceased. Hence, they claimed a total compensation of Rs.5,00,000/- from respondents 1 to 3. 3. The first respondent did not contest the proceeding. M.A.C.A.No.448/2009 -:5:- 4. The second respondent-the driver of the van filed a written statement disputing the age, income and occupation of the deceased. He contended that the accident occurred due to the negligence of the deceased, who was inebriated condition and walking zigzag on the road. It was only in the said circumstances that the van hit the deceased and he got injured. However, the van had a valid insurance policy. Hence, the third respondent was to indemnify the liability of the second respondent. 5. The third respondent filed a written statement, _inter alia,_ contending that the incident was not a motor vehicle accident. The Alathur Police had registered Crime No.71/2001 against the second respondent, for an offence under Section 302 of the Indian Penal Code,1860, (in short 'IPC') for committing murder of the deceased. The remedy of the petitioners was to approach the civil court and claim damages M.A.C.A.No.448/2009 -:6:- against the second respondent. Hence, the claim petition may be dismissed. 6. The mother of the deceased-the fourth respondent filed a written statement contending that she was also a dependant of the deceased and she is also entitled for compensation. 7. The first petitioner was examined as PW1 and Exts.A1 to A10 were marked in evidence. The third respondent produced and marked Exts.B1 to B4 in evidence. 8. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition by permitting the petitioners and the fourth respondent to realise from the third respondent an amount of Rs.2,00,900/- with interest at the rate of 7.5% per annum from the date of petition till the date of realisation and a cost of Rs.1,000/-. 9. Aggrieved by the impugned award, the third M.A.C.A.No.448/2009 -:7:- ## respondent/insurer is in appeal. 10. Heard; Sri. Rajan P. Kaliyath, the learned counsel appearing for the appellant/third respondent-insurer, Sri. A.R. Gangadas, the learned counsel appearing for the respondents 1 to 4/petitioners and fourth respondent and Sri. Jacob Sebastian, the learned counsel appearing for the fifth respondent in the appeal/ first respondent-owner. 11. Sri. Rajan P. Kaliyath argued that as the van was used as a weapon to murder the deceased, the claim petition is not maintainable. The remedy of the petitioners was to approach the civil court instead of approaching the Tribunal. He placed strong reliance on the decision of this Court in _**Krishnan Sreemathi and Others v. Padmanabhan Gangadharan and Others**_ [2005(2) ILR Kerala Series 51], wherein the Division Bench of this Court has held that when a vehicle is used as a weapon for murdering a person, M.A.C.A.No.448/2009 -:8:- there is a violation of policy conditions and therefore, the insurer is entitled to pay the compensation to the claimants and recover the same from the insurer. 12. Sri. P. Jacob Sebastian, the learned counsel appearing for fifth respondent/owner of the vehicle contended that, even though the police had chargesheeted the second respondent for an offence punishable under Section 302 of the IPC, the second respondent has been honourably acquitted by the Court of the Additional Sessions Judge(Fast Track Court No.II), Palakkad, in S.C.No.247/2005, holding that the incident that occurred on 06.02.2001 was only motor vehicle accident and not a case of murder, as alleged by the appellant/third respondent. Hence, the Tribunal has rightly arrived at a conclusion that the third respondent is to indemnify the liability of the fifth respondent- owner of the vehicle. Hence, the appeal may be dismissed. M.A.C.A.No.448/2009 -:9:- 13. Sri. A.R. Gangadas, the learned counsel appearing for the respondents 1 to 4/ claimants and the fourth respondent defended the impugned award and conceded that the claimants and the fourth respondent are satisfied with the compensation amount fixed by the Tribunal. Hence, the appellant may be directed to disburse the compensation amount to them. 14. The question that arises for consideration in the appeal is whether the impugned award passed by the Tribunal directing the appellant/third respondent-insurer to pay the compensation amount to the respondents 1 to 4/ petitioners and fourth respondent, is justifiable or not? 15. The first respondent-the owner of the vehicle had not contested the proceedings. The second respondent filed a written statement contending that the accident occurred due to the negligence of the M.A.C.A.No.448/2009 -:10:- deceased, who was inebriated and walked zigzag on the road, which was the root cause for the accident. 16. On the contrary, the third respondent, relying on Ext.A6 chargesheet filed by the Alathur Police, contended that the case was one of murder and not a motor accident. Therefore, there was violation of the insurance policy conditions by the first respondent, who permitted the second respondent to use the vehicle as a weapon to murder the deceased. 17. Undisputedly, only the fourth petitioner mounted the box and let in evidence to substantiate the contentions in the claim petition that the accident happened due to the negligence of the second respondent. 18. Even though in Ext.A6 chargesheet, the police found that the second respondent with an intention to murder the deceased, hit the vehicle on him, and thereby, committed an offence under Section M.A.C.A.No.448/2009 -:11:- 302 of the IPC, it is now on record that the competent Sessions Court by its judgment dated 25.02.2009 has found that the second respondent had not committed the crime, as found in Ext.A6. Therefore, the chargesheet has fallen into a pale of insignificance now. 19. In _**New India Assurance Co. Ltd. v. Pazhaniammal and Others**_ [2011 (3) KLT 648] this Court has held that the conclusion of the police in a chargesheet can be taken into account for the purpose of negligence in a claim under Section 166 of the Act. If any person wants to discredit the chargesheet, it is for the person to mount the box and let in contra evidence. 20. It is also trite, that the proceedings under the Act have to be considered on the touchstone of preponderance of probability and not beyond reasonable doubt. Moreover, in a claim under Section M.A.C.A.No.448/2009 -:12:- 163A of the Act, the question of negligence need not be probed. 21. In the instant case, the second respondent has contended that the accident occurred due to the negligence of the deceased and the third respondent has contended that the incident was a deliberate act of murder committed by the second respondent. Nonetheless, both parties have not let in any evidence. Mere pleading is not proof. Now, the fact remains that by the second respondent has been acquitted of the charges in Ext.A6 chargesheet. 22. With the little evidence available on record and the subsequent events that have transpired over the passage of time and the law that is vogue, the best course would be to remand the matter back to the Tribunal to ascertain the question whether the appellant/third respondent-insurer is entitled for an order of recovery from the first respondent, so that all M.A.C.A.No.448/2009 -:13:- the respondents before the Tribunal can let in additional evidence and substantiate their respective defences. Needless to mention, I reiterate that the appellant/third respondent-insurer shall pay the entire compensation amount due as per the impugned award with interest and costs to the respondents 1 to 4/ petitioners within a period of sixty days from today. In the result, the appeal is allowed by remitting O.P.(MV)No.194/2002 back to the Tribunal for the sole purpose of deciding whether the appellant/third respondent is entitled to recover the compensation amount paid to the respondents 1 to 4/petitioners and fourth respondent. The appellant/third respondent and fifth respondent/first respondent shall appear before the Tribunal on 01.11.2021, either in person or through the respective counsel. The Tribunal shall issue notice to the sixth respondent/second respondent, in case he does not appear on the said M.A.C.A.No.448/2009 -:14:- date. The Tribunal shall untrammelled by any observation in this judgment shall decide the above raised question, as expeditiously as possible, at any rate, within a period of six months from the date of appearance of the second respondent. The Registry shall forthwith transmit the entire Lower Court Records(LCR) back to the Tribunal. All pending interlocutory applications will stand closed. Sd/- ## **C.S.DIAS,JUDGE** DST/29.09.2021 //True copy/ P.A.To Judge