Omana Cyriac & Others v. Rasheed & Others & The National Insurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR MONDAY, THE 6TH DAY OF NOVEMBER 2017/15TH KARTHIKA, 1939 MACA.No. 563 of 2010 (O) ------------------------OPMV 839/2005 of ADL.D.C. & MACT,THODUPUZHA ## APPELLANTS/PETITIONERS: ----------------------------------------- 1. OMANA CYRIAC, W/O. LATE CYRIAC, - VELLARINGATTU HOUSE, KOOVAPPALLY KARA, KUDAYATHOOR, VILLAGE, THODUPUZHA. 2. TANIA, AGED 29 YEARS, D/O. LATE CYRIAC, VELLARINGATTU HOUSE, KOOVAPPALLY KARA, KUDAYATHOOR VILLAGE, THODUPUZHA. 3. TIARA, AGED 24, D/O. LATE CYRIAC, VELLARINGATTU HOUSE, KOOVAPPALLY KARA, KUDAYATHOOR VILLAGE, THODUPUZHA. BY ADVS.SRI.A.JAYASANKAR SRI.MANU GOVIND SMT.B.MEERA ## RESPONDENT(S)/RESPONDENTS: --------------------------------------------------- 1. SRI.RASHEED, S/O. MEERAN, AGED 36 YRS, CHEMBIL HOUSE, EDAMARUKU, UDUMBANOOR. 2. SRI.K.K.VENUGOPAL, S/O. KRISHNA PILLAI, KOLATHU, KUDAYATHOOR P.O., THODUPUZHA. 3. THE NATIONAL INSURANCE COMPANY LTD., PULIMOOTTIL SHOPPING ARCADE, THODUPUZHA,, REP.BY ITS BRANCH MANAGER. ## R3 BY ADV. SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: # **C.T.RAVIKUMAR & B.SUDHEENDRA KUMAR, JJ.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - ## M.A.C.A. No.563 of 2010 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 6[th] day of November 2017 ## JUDGMENT ## **Ravikumar J.,** This appeal is directed against the judgment and award in O.P.(M.V.) No.830 of 2005 dated 30.10.2008 passed by the Motor Accidents Claims Tribunal, Thodupuzha. The petitioners therein are the appellants and they are the legal heirs of deceased Cyriac. They moved the said claim petition under Section 163A of the Motor Vehicles Act, seeking compensation for the death of Cyriac, in a motor vehicle accident which occurred on M.A.C.A. No.563 of 2010 2 11.6.2005. On that day, he was driving an Omni Van bearing Reg.No.KL06B/-1463. At the place of accident, it was hit by the bus bearing Reg.No.KL 6B/9046 being driven by the first respondent. In the claim petition, it was averred that the accident had occurred due to the rash and negligent driving of the bus by the first respondent. The appellants claimed an amount of Rs.4,00,000/- as compensation. It is to be noted that in the claim petition it was averred that the deceased was a businessman and also doing agricultural operations. It was further averred that he was earning Rs.5,000/- per month. Before the Tribunal, respondents 1 and 2 remained ex-parte. The third respondent, the insurer of the bus allegedly involved in the accident, entered appearance and contested the matter. True that in the written statement, filed by the third respondent it was averred that the accident had not arisen M.A.C.A. No.563 of 2010 3 out of the use of the motor vehicle bearing Reg. No. KL6B/9046. Further it was specifically averred in paragraph ## No.2 of the written statement thus:- “The petition is not maintainable either in law or on facts of the case. The provisions of Section 163A of the Motor Vehicles Act 1988 are not applicable in case of death of a person having annual income above Rs.40,000/-. The annual income of the deceased Cyriac s/o.Mathew claimed in the petition is Rs.60,000/-. Hence the petition is not maintainable.” It is thus obvious that the third respondent Insurance Company had specifically taken a contention in its written statement that the claim petition is not maintainable as the income of the deceased was Rs.5,000/- and thereby, exceeded the outer limit of Rs.40,000/-. Though the third respondent had taken up such a contention, the appellant had not moved any application to get it converted to M.A.C.A. No.563 of 2010 4 Section 166A from Section 163A of the Motor Vehicles Act. Obviously, based on the rival contentions, the Tribunal had proceeded to consider the application. Evidently, the question whether the accident in question had arisen out of the use of Motor vehicle was considered and held in favour of the claimant/appellant. The Tribunal had arrived at the conclusion that the accident in which the appellant sustained injuries arose out of the use of the motor vehicle. 2. A perusal of the impugned award would reveal that after holding thus, the Tribunal went on to consider the question of maintainability of the claim petition. In the claim petition, admittedly, the appellants had claimed that the deceased was a businessman and he was earning Rs.5,000/- per month. There can be no doubt with respect to the position that in order to the maintain a claim petition M.A.C.A. No.563 of 2010 5 under Section 163A of the Motor Vehicles Act, the annual income of the deceased/injured who sustained permanent disablement, the annual income should not exceed Rs.40,000/-. It is also true that going by the very averments in the claim petition regarding the occupation and income of the injured, who later died, his annual income was above Rs.40,000/-. Evidently, it is assigning the said reason that the claim was dismissed by the Tribunal. We do not find any reason to hold that the Tribunal went wrong in holding that the claim petition could not be maintained under Section 163A of the Motor Vehicles Act for the aforesaid reasons. Nonetheless, the question to be decided is whether on that ground, the claim petition should have been dismissed. For answering the question, the decision of a Division Bench of this Court in **National Insurance Company Ltd. v. Aravindakshan** M.A.C.A. No.563 of 2010 6 **[2016(2) KLT 711)** has to be looked into. Paragraph No.6 of the said judgment is worthy to be extracted and it reads thus: “A question arises as to the further course of action. If the claim is not maintainable under Section 163A, the party is still at liberty to have the negligence on the part of the concerned party pleaded and proved, seeking to sustain the claim based on the 'principle of fault', in terms of Section 166 of the Motor Vehicles Act. Whether the matter requires to be remanded is the point to be considered.” In that case, based on the pleadings and evidence let in by the parties, the Tribunal had considered the issue of negligence and found that the claimant had succeeded in establishing the aspect of negligence and in such circumstances, the Tribunal had granted compensation. The award was assailed by the Insurance Company M.A.C.A. No.563 of 2010 7 contending that as the claim petition was filed under Section 163A of the M.V. Act, the Tribunal could not have passed such an award. This court ultimately held thus:- “The claim petition having preferred under Section 163A of the M.V.Act, the petitioner has to establish the use of a motor vehicle. In the case in question, the documents on record show that Omni Van bearing Reg.No.KL.6B/1463 hit on a service bus stopped at the bus stop for getting the passengers alighted. It is the argument of the learned counsel for the third respondent that the service bus bearing Reg.No.6B/9046 was remaining stationary and therefore, was not in use at the time of accident. The learned counsel for the petitioner has placed a decision. Motor and General Finance (India) Ltd., v. Mary Mony reported in 1990(2) KLT 971 wherein it has been held by the Hon'ble High court of Kerala. The word “use” in S.110(1) of the Act has been used in a wider sense. It covers all engagements of the motor vehicle, including M.A.C.A. No.563 of 2010 8 driving, parking, keeping stationary, repairing, leaving unattended on the road or for any other purposes. In the case when a vehicle is being driven and is stopped or parked for being repaired it cannot be said that the vehicle is not being used. If the vehicle is parked in a dangerous slope, and the accident is caused, S.110 of the Act would be attracted. When by the opening of the door of a motor vehicle parked on a public road an accident arises, giving rise to a claim for 'compensation', it could not be said that the accident did not arise out of the use of the motor vehicle concerned. The word “use of the vehicle” in S.110(1) of the Act are wide enough to comprehend such case also.” In the contextual situation, it is also relevant to refer to a decision of another Division Bench in **United India** M.A.C.A. No.563 of 2010 9 **Insurance Company Ltd. v. M. Usman Haji and others [2013(1) KHC 347]** . In that case, going by the averments made by the legal heirs of the victim of the accident for whose death the claim petition was filed, the deceased was having a monthly income of Rs.6,000/-. The Tribunal had passed an award, treating the application as one filed under Section 166 of the Motor Vehicles Act, even though it was actually filed under Section 163A of the Motor Vehicles Act. In that case, virtually the Tribunal had calculated the compensation on the basis of the structured formula under the second schedule to the M.V. Act. The Division Bench held that though the claim petition was filed under Section 163A of the Act, in order to do justice, it could be taken as one filed under Section 166A of the Act, when it is pleaded and proved that there was negligence on the part of the driver of the offending M.A.C.A. No.563 of 2010 10 vehicle. Ultimately, taking note of the contention that the driver of the vehicle involved in the accident was not having driving licence at the time of the accident, the appellant Insurance Company was granted the liberty to get the compensation amount realised from the owner of the offending vehicle in the event its driver had no driving licence at the time of the accident. 3. In the case on hand, the learned counsel appearing for the appellants submitted that virtually the provisions was misquoted in the claim petition. The learned counsel brought to our notice to Para - 28 of the claim petition. It is stated therein thus: “Any other information that may be necessary or helpful in disposal of the claim: On 11.6.2005 at 6.15 p.m., the deceased Cyriac was coming to Thodupuzha driving his own Omni Van bearing M.A.C.A. No.563 of 2010 11 No.KL06/B-1463 and when he reached infront of the Muslim Church at Kudayathoor, a service bus bearing No.KL 6B/9046 driven by the 1st respondent in a rash and negligent manner came from the opposition direction and hit on the front portion of the van driven by the deceased Cyriac. As a result of the collision the petitioner sustained very grievous injuries including number of fractures throughout his body. The deceased was immediately taken to Chazhikattu Hospital, Thodupzuha where he succumbed to his injuries at 6.30 p.m. The accident occurred due to the rash and negligent driving of the bus by the 1st respondent. The bus happened to hit on the van when the 1st respondent took the bus ahead without looking on the oncoming vehicles.” (emphasis added) 4. It is submitted that thus the very case of the appellants in the claim petition would itself reveal that the appellants had specifically raised the contention that the accident in question had occurred due to the rash and negligent driving of the bus by the first respondent. It is, M.A.C.A. No.563 of 2010 12 thus, obvious that in the claim petition the appellants herein/ petitioners had specifically alleged the negligence on the part of the driver of the bus involved in the accident, as the cause of the accident. The third respondent Insurance Company refuted the said contention. It was specifically contended by them that the accident had occurred due to the negligence on the part of the claimant/deceased himself. True that in the written statement they have specifically raised objection regarding the maintainability of the claim petition owing to the reason that the annual income of the deceased stated therein, had exceeded the ceiling limit of Rs.40,000/-. In the light of the decisions referred (supra) and also the factual averments specifically made in the claim petition to the effect that the accident had occurred due to the rash and negligent driving of the first respondent we are of the view 13 M.A.C.A. No.563 of 2010 that an interference with the impugned award is invited. 5. It is also to be noted that on the side of the appellants, Ext.A2 which is the final report in the crime No.158 of 2005 of Kanjoor police station, registered in connection with the accident in question, was also produced. Going by the decision of the Division Bench of this court in **New India Assurance Co.Ltd., v. Pazhaniammal** [2011(3) KLT 648] in a claim petition filed under Section 166 of the Motor Vehicles Act, the production of the police charge is a _primafacie_ sufficient evidence of negligence. In other words, as against the indictee therein, it will form _primafacie_ sufficient evidence. We are of the view that since in the claim petition it was specifically pleaded that the accident had occurred due to the rash and negligent driving of the first respondent, the Tribunal should have considered those aspects with M.A.C.A. No.563 of 2010 14 reference to the evidence on record. That apart, in the interest of justice when such a specific contention as mentioned herein before, was raised in the claim petition, the Tribunal should have considered the question whether it was a misquote of the provision and even if it is not, in view of the specific pleading of the negligence the Tribunal ought to have allowed the parties to let in evidence to establish the same in case the materials already on record are not sufficient in that regard. In that view of the matter, this appeal is allowed and the impugned award is set aside and the matter is remanded to the Tribunal to frame issues approximately and to consider them, in accordance with law. In other words, since the Tribunal had already arrived at the conclusion that the accident in question arose by the use of Motor vehicle, the Tribunal shall consider the question as to at whose negligence the accident had occurred. In that regard, the parties shall be afforded with an opportunity to adduce M.A.C.A. No.563 of 2010 15 their evidence. After let in the parties to adduce the evidence, the Tribunal shall consider the said issue and subject to the outcome of such consideration, pass award on all issues in terms of Order XIV Rule 2 of the Code of Civil Procedure. Considering the year of the accident and also the year of filing of the claim petition an expeditious disposal is warranted. The Tribunal shall cause notice to the parties and dispose of the matter, as expeditiously as possible. There will be no order as to costs. sd ## **C.T.RAVIKUMAR, JUDGE** sd **B.SUDHEENDRA KUMAR, JUDGE** _dl/6.11.2017 // True copy // PA to Judge_