New India Assurance Co. Ltd. v. Sundaran and His Legal Heirs

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 MONDAY, THE 13TH DAY OF FEBRUARY 2012/24TH MAGHA 1933 MACA.No. 1756 of 2009 (A) -----------------------------OP(MV).254/2002 of MACT,KALPETTA -------------------- APPELLANT(S)/5TH RESPONDENT: -------------------------------------- THE NEW INDIA ASSURANCE COMPANY LIMITED, KALPETTA, NOW REPRESENTED BY ITS MANAGER REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY ADV. SRI.P.JACOB MATHEW ## RESPONDENT(S)/PETITIONERS AND RESPONDENTS 1 TO 4: ------------------------------------------------------------------- 1. SUMA, W/O.LATE SUNDARAN, PARAKKUNDIL HOUSE, KALPETTA P.O., ONIVAYAL VAITHIRI TALUK, WAYANAD DISTRICT. 2. SOUMYA, D/O.LATE SUNDARAN, -DO- -DO- 3. ABEESH, S/O.LATE SUNDARAN, -DO- -DO- - 4. T.N.RAJAGOPALAN NAIR, S/O,SANKARAN NAIR, - ONIVAYAL VEEDU, MADIYURKUNI, KALPETTA P.O. [DELETED] 5. VASANTHA KUMARI, - W/O.RAJAGOPALAN NAIR, -DO- -DO- 6. SHEMI, W/O.PRASAD, -DO- -DO- MACA.No. 1756 of 2009 (A) -2- 7. K.G.BALAN, S/O.GOPALAN, 8/498, KEERANVELI HOUSE, P.O.MUTTIL KALPETTA. *[RESPONDENT NO.4 IS DELETED FROM THE ARRAY OF PARTIES AT THE RISK OF APPELLANT/PETITIONER AS PER ORDER DATED ON 06/02/12 IN I.A.267/12 IN MACA.1756/09] R1 TO 3 BY SMT.CELINE JOSEPH R7 BY SRI.G.BALAMURALEEDHARAN (PARAVUR) R7 BY SRI.N.T.NANDAKUMAR (PARAVUR) R7 BY SRI.AMRITHA RAJ THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ. -----------------------------------------------M. A. C. A No.1756 of 2009 -----------------------------------------------Dated this the 13[th] day of February, 2012 ## **JUDGMENT** _Pius C. Kuriakose, J_ In this appeal the Insurance Company challenges the award passed by the Motor Accidents Claims Tribunal in favour of the respondents who were the legal heirs of one Sundaran, who died while sitting inside a jeep as a direct result of a tree falling up on the jeep. It is mainly on two premises that the award passed by the Tribunal for a total amount of ` 2,96,800/- is challenged. The first premise is that the death was not due to any road traffic accident, but was due to a natural calamity for which the Driver of the offending vehicle who also lost his life along with deceased Sri.Sudaran cannot be made responsible. The vehicle was being parked for shelter under a eucalyptus tree as there was a heavy downpour with strong winds. The vehicle was M. A. C. A No.1756 of 2009 -2- not being driven when the tree fell down. 2. The other premise on which the award passed by the Tribunal is challenged is that the policy in question was an act only policy with additional premia being collected only for covering the driver of the vehicle and also for covering unlimited property damage. No premium was collected for covering any passenger or the owner. 3. The learned Tribunal under the impugned award took the view that as the application was one under Section 163A the question of negligence on the part of the Driver was totally irrelevant and that the accident occurred while the vehicle was under use. In that view of the matter the Tribunal held that the application for compensation was perfectly maintainable. The Tribunal would interpret the endorsements on the policy regarding payment of premia and hold that the policy though act only, covered the deceased also. Accordingly, the Tribunal went on to quantify the compensation at ` 2,96,800/- and award the same to the respondents. M. A. C. A No.1756 of 2009 -3- 4. We have heard submissions of Sri.Mathews Jacob, the learned Senior Counsel for the appellant Insurance Company and those of Sri.Balamuraleedharan, the learned counsel for the owner of the vehicle. We heard the learned counsel for the other party respondents/the claimants before the Tribunal. Drawing our attention to the judgment of the Supreme Court in United India Insurance Co. Ltd. v. Tilak Singh (2006(2) KLT 884 SC) it was submitted by the learned counsel for the appellant that in view of the admitted position that the policy in question was act only policy and that additional premia had been collected only for covering property damage and the driver the action of the learned Tribunal in making the insurance company liable to indemnify the 7[th] respondent in respect of the compensation payable under the award was clearly wrong. Strong reliance was placed by Sri.Mathews Jacob on the judgment of the Supreme Court in Oriental Insurance Company Ltd. v. Rajni Devi (2008 (5) SCC 736) wherein it has been clearly held that even in applications under Section 163A where M. A. C. A No.1756 of 2009 -4- compensation is claimed in respect of the death of the owner or another passenger of the vehicle the contract of insurance will be governed by the contract qua contract and the liability of the insurance company would depend upon the terms of the contract. The submissions of the learned senior counsel was that as on the terms of the contract in the instant case, the company's liability was only in respect of the property damages and the driver of the vehicle, the claimants who were legal heirs of a gratuitous passenger in a private vehicle cannot aspire to be indemnified by the appellant Insurance Company. 5. Per contra Sri.Balamuraleedharan the learned counsel for the 7[th] respondent would place reliance on the judgment of the Supreme Court in Deepal Girishbhai Soni v. United India Insurance Co. Ltd. (2004(5) SCC 385) and submit that Section 163A begins with a nonobstante clause and is comparable to no fault liability contemplated under Section 140 of the Motor Vehicles Act. The Parliament intended to provide for making of an award consisting of a M. A. C. A No.1756 of 2009 -5- pre-determined sum without insisting on a long drawn out trial or proof of negligence leading to the accident and will cover even those cases where negligence is proved to be on the part of the victims. Unlike remedy under Section 166 which is fault based, the remedy under Section 163A is a nofault remedy, so submitted Sri.Balamuraleedharan. Through the same proposition Sri.Balamuraleedharan placed reliance on the judgment of a Division Bench of this Court in New India Assurance Company Ltd. v. Remya (2011(4) KLT 869). Reference was made by Sri.Balamuraleedharan to a judgment of a Gujarat High Court in New India Assurance Co. Ltd. v. Saguna (2008(3) KLT SN 50). The learned counsel for the claimants would support all the submissions of Sri.Balamuraleedharan. 6. We have given our anxious considerations to the rival submissions addressed at the Bar. The first question which arises on the basis of the submissions is whether the application for compensation could have been maintained by the claimants before the Motor Accidents Claims Tribunal on M. A. C. A No.1756 of 2009 -6- account of the manner in which the accident resulting in the death of Sundaran occurred. It is very clear to our mind that this issue can be answered in favour of the claimants before the Motor Accidents Claims Tribunal. It is not disputed that the vehicle was involved in the sense that the deceased was inside the vehicle which had to be parked on account of unexpected rain and winds by the side of the tree which fell down. The application was under Section 163A. According to us in view of the expressed provisions under Section 163A clause 2 what is required is only the involvement of the vehicle and it is not necessary to establish negligence or any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or any other person. We hold that the application under Section 163A was perfectly maintainable. However, when we come to the next question whether the appellant Insurance Company is liable to indemnify the insured in the matter of payment of compensation to the claimants before the Tribunal, it is equally clear to us that the said question is to be answered in favour of the M. A. C. A No.1756 of 2009 -7- appellant/Company. It is not disputed and it became evident that the policy in question was an act only policy and that additional premia had been collected only for indemnifying the unlimited property damage as well as the driver of the vehicle. The principles laid down by the Supreme Court in United India Insurance Co. Ltd. v. Tilak Singh (cited supra) and more specifically laid down by the Supreme Court later in Oriental Insurance Co. Ltd. v. Rajni Devi (cited supra) will show that on the facts which obtain in this case the nature of the application (the same being under Section 163A) notwithstanding the appellant company cannot be made liable to indemnify the owner of the offending vehicle for payment of compensation to the claimants who are legal heirs of a passenger in a private vehicle which was involved in the accident. 7. Even though several arguments were addressed before us by Sri.Mathews Jacob regarding the quantum of compensation presently awarded only one of those arguments has appeal to us. The argument was that the M. A. C. A No.1756 of 2009 -8- award of compensation towards loss of love and affection is not one permitted under the structured formula. The learned Senior Counsel however submitted that though not granted there will not be serious objection to a sum of ` 2,500/being granted to loss of estate and a sum of ` 5,000/- being granted towards loss of consortium, the widow. We find force in the above submissions. We delete the compensation awarded by the Tribunal towards loss of love and affection and modify the award by awarding a sum of ` 5,000/towards loss of consortium and sum of ` 2,500/- as loss of estate. We delete the compensation of ` 1,000/- which is awarded towards transportation charges as the same is not permissible in terms of structured formula. 8. The result of the above discussion will be as follows:- The appeal is allowed. The award fastening the liability on the appellant/company to indemnify the insured is set aside and the appellant company is completely absolved from the liability. The award of compensation is modified in the lines indicated and the total compensation will stand M. A. C. A No.1756 of 2009 -9reduced to ` 2,77,500/-. 9. The amount already deposited by the appellant/ Company by way of pre-deposit for maintaining this appeal will be released to the appellant/Company forthwith. Sd/PIUS C. KURIAKOSE JUDGE Sd/A. V. RAMAKRISHNA PILLAI JUDGE kns/- //TRUE COPY// P.A. TO JUDGE