Oriental Insurance Company Limited v. Sunitha and others

## **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** **TUESDAY, THE 14TH DAY OF FEBRUARY 2012/25TH MAGHA 1933** **MACA.No. 868 of 2007 ( )** **-----------------------OP(MV)348/1998 of IST ADDL.M.A.C.T, KOZHIKODE** ## **APPELLANT/2ND RESPONDENT: -------------------------** **THE ORIENTAL INSURANCE COMPANY LIMITED, KOZHIKODE, NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI - 18.** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/SUPPL.PETITIONERS:** **------------------------------** **1. SUNITHA, S/O.LATE PRASANTH, PRIYA HOUSE, MAYANAD, KOZHIKODE.** **2. VISHNU PRASANTH, AGED 2, (MINOR), S/O.LATE PRASANTH, REPRESENTED BY HIS MOTHER SUNITHA,PRIYA HOUSE, MAYANAD, KOZHIKODE.** **3. C.K.IMBICHAN, PRIYA HOUSE, MAYANAD, KOZHIKODE.** **4. DHANALAKSHMI, W/O.IMBICHAN, PRIYA HOUSE, MAYANAD, KOZHIKODE.** **R1 TO R4 BY ADV. SRI.JIJI THOMAS** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **STK** ## **PIUS C.KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ --------------------------------------------MACA No.868 of 2007 --------------------------------------------Dated this the 14[th] day of February 2012** ## **JUDGMENT** ## **Pius C.Kuriakose, J** The Insurance Company is the appellant. The original petition before the Motor Accidents Claims Tribunal was filed by one C.K.Prasanth, who sustained serious injuries in an accident which occurred on 15.5.1997. The injuries suffered by him were so serious and he died during the pendency of the Original Petition on 2.11.1998. Upon his demise, respondent Nos.1 to 3, his legal heirs being his widow, minor son and father got themselves impleaded as additional claimants in the OP (MV). One of the contentions which was seriously raised by the appellant Insurance Company was that the application originally filed was one under Section 166 of MACA No.868 of 2007 2 the Motor Vehicles Act. The contention which was seriously raised by the company was that the accident occurred due to the negligence of the claimant himself and hence the applicant is not entitled to be compensated or indemnified. During the pendency of the above claim petition, an interlocutory application was filed as I.A.No.2688 of 2005 by respondents 1 to 4 seeking conversion of the application as one under Section 163A of the Motor Vehicles Act. Even though the above application was strictly opposed by the appellant company, the learned Tribunal allowed the application and passed the impugned award under which a total compensation of Rs.2,29,000/- inclusive of disability compensation of Rs.2,04,000/- was awarded. In this appeal, several legal and factual grounds have been raised assailing the award of the Motor Accidents Claims Tribunal. Even though the respondents have MACA No.868 of 2007 3 been served with notice, they have not chosen to enter appearance before this Court for resisting the appeal. Making submissions on the basis of the grounds raised in the memorandum of appeal, it is submitted by Mr.Mathews Jacob, the learned Senior counsel for the company that the order of the learned Tribunal permitting conversion of the Original Petition which was filed under section 166 of the Motor Vehicles Act as one under Section 163A was illegal since the applications under Section 163A are intended to be filed only by persons whose annual income is below Rs.40,000/-. Strong reliance was placed in this context by Mr.Mathews Jacob on the judgment of the Supreme Court in _**Deepal Girishbhai Soni**_ v _**United India Insurance Company Limited**_ (2004(2) KLT 395 SC). Reference was made by the learned senior counsel to a judgment of this Court in _**National Insurance**_ MACA No.868 of 2007 4 _**Company Limited**_ v _**Lathika**_ (2011(3) KLT 412) wherein, following the judgment in _Sony’s case_ , it has been reiterated by a Division Bench that proceedings under Section 163, being a social security provision, only those with annual income up to 40,000/- can take the benefit thereof. It was then submitted by Mr.Mathews Jacob that the view taken by the learned Tribunal that the question of negligence is absolutely irrelevant in proceedings under Section 163A is incorrect and for this proposition, the learned senior counsel would place reliance on a recent judgment of the Supreme Court in _**National Insurance Company Limited**_ v _**Sinitha**_ (2011(4) KLT 821 SC), wherein it has been clearly laid down by the Supreme Court that unlike Section 140 which provides for no fault liability, Section 163A is founded on fault liability. The learned Senior counsel submitted that though the burden of proof for MACA No.868 of 2007 5 establishing negligence on the part of the driver of the offending vehicle may not be so rigorous upon the applicant before the Motor Accidents Claims Tribunal, the issue of negligence is certainly relevant even in proceedings under Section 163A. 2. As already indicated, the above submissions of the learned senior counsel and other submissions made by the learned senior counsel at the Bar are not resisted before us by anybody. We have given our anxious consideration to the submissions of the learned senior counsel. We have kept in mind the law laid down by the Supreme Court by the judgments in _**Deepal Girishbhai Soni**_ v _**United India Insurance Co.Ltd.**_ (2004(2) KLT 395 SC) and in _**National Insurance Co.Ltd.**_ v _**Sinitha**_ (2011(4) KLT 851 SC). We also notice that a co-ordinate Bench of this Court has followed the judgment of the Supreme Court in MACA No.868 of 2007 6 _Sony’s case_ . We are convinced that the action of the learned Tribunal in having allowed I.A.No.2688 of 2005 was not proper. We set aside the order passed by the learned Tribunal in I.A.No.2688/2005 and dismiss the I.A. We are of the view that all the issues arising in the OPMV, in the light of the contentions raised by the appellant company, should be reconsidered by the learned Tribunal. Hence, we set aside the impugned award and remand O.P.(MV)348 of 1998 to the Motor Accidents Claims Tribunal, Kozhikode. The learned MACT is directed to permit both sides to adduce further evidence, if they are desirous of doing so, and pass a revised award in the light of the entire evidence which comes on record. In the revised award to be passed, the learned Tribunal should certainly address the issues which arise on the basis of the contentions raised. MACA No.868 of 2007 7 3. The learned Tribunal will pass revised award as early as possible and at any rate within three months of receiving a copy of this judgment. 4. We are told that 50% of the compensation amount has been deposited by the appellant company pursuant to the interim orders passed by this Court. The above amount will be released to the appellant company immediately. **sd/- PIUS C.KURIAKOSE, JUDGE** **sd/- A.V.RAMAKRISHNA PILLAI, JUDGE** **css/ true copy** **P.A.TO JUDGE**