New India Assurance Company Limited v. Chandran @ John and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 25[TH] DAY OF NOVEMBER 2022 / 4TH AGRAHAYANA, 1944** ## **MACA NO. 1140 OF 2009** **AGAINST THE AWARD IN OP(M.V).642/2002 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL, NEYYATTINKARA** ## **APPELLANT/2ND RESPONDENT:** THE NEW INDIA ASSURANCE COMPANY LIMITED THIRUVANANTHAPURAM, NOW REP.BY ITS MANAGER,, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ## **RESPONDENTS/PETITIONER AND RESPONDENTS 1, 3 AND 4:** 1 CHANDRAN @ JOHN, S/O.SATHYADAS, KALIYIL KETTIYATHAN POONANKALA,, KANJIRAMKULAM P.O., NEYYATTINKARA TALUK. 2 SATINDER PALSINGH, HOUSE NO.K.G-125 MIG FLAT, VIKASPURI, NEW DELHI. 3 J.SABU, S/O.JOHNSON, EDAYATHOPPU VEEDU THIRUPURAM P.O., NEYYATTINKARA. 4 L.BHASHI, S/O.LAKSHAMANAN NADAR, LAKSHMANA BHAVAN, MUDANTHANI,, THIRUPURAM P.O., NEYYATTINKARA. BY ADVS. SRI.BENOJ C AUGUSTIN SRI.NAGARAJ NARAYANAN SRI.PRATHAP PILLAI SRI.G.SUDHEER SRI.SAIJO HASSAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 **MACA No. 1140 of 2009** **C.JAYACHANDRAN, J -------------------M.A.C.A.No.1140 of 2009 ----------------------Dated this the 25[th] day of November, 2022** ## **J U D G M E N T** This appeal is carried by the Insurance Company challenging the award of the Motor Accidents Claims Tribunal, Neyyatinakara in O.P.(M.V).no.642/2002. The accident occurred on 13.11.1997, when the motor cycle driven by the claimant rammed against a truck, as a consequence of which, serious injuries were sustained by the claimant, who is the first respondent herein. The Tribunal granted a sum of Rs.2,29,640/- together with interest at the rate specified in the Award, out of which one-half of the amount was directed to be paid by the appellant/Insurance Company and the remaining onehalf, by respondents 3 and 4 in the appeal, who are the owner and driver respectively. 3 **MACA No. 1140 of 2009** **2.** Heard Sri.Mathews Jacob, learned senior counsel for the insurance company and Sri.Saijo Hassan for the 1[st] respondent/claimant. There is no representation for respondents 3 and 4, the owner and the driver of the offending vehicle. Perused the records. **3.** The order impugned is attacked on four counts by the learned senior counsel for the appellant. The first count is that a claim under S.163 A is not maintainable, in asmuch as the claimant had preferred a claim under S.166 earlier, wherein an interim award was passed directing payment of Rs.25,000/to the claimant. Earlier, O.P.No.416/1998 was filed u/s.166 of the M.V. Act against the owner and driver of the offending vehicle, which had no insurance coverage at that point of time. The insurer of the motorcycle was not made a party in that case. However, the said original petition was withdrawn and the present original petition under S.163 A was filed. The contention of the counsel for the appellant is that, 4 **MACA No. 1140 of 2009** one cannot prefer applications under S.163 A, after resorting to the remedy under S.166. **4.** This Court cannot endorse the submission made by the learned senior counsel for the appellant. It is settled that, one cannot simultaneously pursue the remedies under S.163 A, as also, under S.166 as tabooed by S.163 B of the Motor Vehicles Act. However, in the instant case, the appellant had pursued the remedy under S.166 initially, but the same was got withdrawn, whereafter only, the present original petition under S.163 A was filed. The fact that there was an interim award in the earlier original petition would not alter the legal position in any manner. If such amount was actually paid by the driver and owner, it is a matter of adjusting the same from the compensation amount granted in the later original petition under S.163 A. However, as submitted by the learned senior counsel, that amount would not have been paid by the driver and the owner in all probabilities. 5 **MACA No. 1140 of 2009** **5** . The second contention is that the claim under S.163 A is not maintainable, since the monthly income claimed in the claim petition is Rs.4,000/-, which would exceed the maximum annual income stipulated at Rs.40,000/-, thus taking the claim outside the scope of S.163 A. As regards this contention also, this Court is not fully impressed. It is always open for a claimant to limit his claim, even though a higher amount is claimed in the claim petition, if such limiting would be essential for maintaining the remedy chosen under S.163 A. That apart, the Tribunal had reckoned the monthly income at Rs.3,000/-, in which case, the annual income would not exceed Rs.40,000/-. Therefore, the objection under that account is also repelled. **6.** The third contention raised by the learned senior counsel is with respect to the negligence component. According to the senior counsel, it was the driver of the truck who was found rash and negligent, going by the final report prepared by the Investigating Officer. Therefore, the liability 6 **MACA No. 1140 of 2009** cannot be mulcted upon the insurer of the motorcycle. This contention is also not tenable in view of the fact that the negligence component has no relevance, whatsoever, in so far as the claim under S.163 A is concerned. Going by a Bench decision of this Court in **United India Insurance** **Company Ltd. v. Ratheesh** [2011(4) KLT 927], it is the choice of the claimant as between the two insurers available before him to seek compensation. This contention would also therefore stand dismissed. **7.** However, the fourth contention, which according to the learned senior counsel for the appellant is the most important contention, is to effect that the claimant himself was riding the motorcycle, wherefore, he cannot claim compensation from the insurer of his own vehicle, since he does not fit into the description of a 'third party'. The counsel for the appellant would submit that claimant himself was riding the motorcycle, of which he was the owner. However, senior counsel for the appellant 7 **MACA No. 1140 of 2009** would concede that no evidence has been produced to show that the claimant was the owner of the vehicle. Even then, this contention is liable to be reckoned going by the judgment of this Court in **Jiljet v. Stamphen George** [2019 (1) KLT 546], **New India Insurance Company Ltd. v. Sadanand Mughi** [2009 (2) SCC 417]. **8.** This Court finds considerable force in the submission made by the learned Single Judge. The issue was first considered by the Honourable Supreme Court in **Ningamma v. United India Insurance Company** **Ltd.** [2009(13) SCC 710]. It was a case where the deceased was driving a motor cycle which was borrowed from its real owner. The legal representatives of the deceased filed a claim against the real owner. The Supreme Court found that the deceased had stepped into the shoes of the owner of the vehicle, wherefore, S.163 A of the Act cannot apply where the owner of the vehicle himself is involved. The legal position was reiterated in **Sadanand Mukhi** supra and recently in **Ramkhiladi and** 8 **MACA No. 1140 of 2009** ## **Another v. United India Insurance Company and** **Another** [2020(2) SCC 550]. This Court therefore finds that the second respondent/insurance company, who had insured the first respondent/owner of the motor cycle, cannot be mulcted with the liability to compensate the claimant/appellant. On the strength of the above finding, the liability to pay 50% of the compensation amount fixed on the second respondent/insurance company in the impugned award is hereby set aside. The entire liability can be fastened only on the owner and driver of the offending vehicle, namely, the truck, of which the owner is liable to compensate the applicant. The appeal is allowed as indicated above. **Sd/-** **C. JAYACHANDRAN, JUDGE** Sbna/