P.A.KRISHNAN S/O AYYAPPAN & M.SUSEELA AGED 48 YEARS W/O P.A.KRISHNAN vs C.S.SAJEEV KUMAR & THE UNITED INDIA INSURANCE CO. LTD.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **WEDNESDAY,THE 17TH DAY OF OCTOBER 2018 / 25TH ASWINA, 1940** ## **MACA.No. 1665 of 2007** **AGAINST THE AWARD IN OPMV 927/2004 of M.A.C.T OTTAPPALAM DATED 31-01-2007** ## **APPELLANTS/PETITIONERS:** - **1 P.A.KRISHNAN S/O.AYYAPPAN, GOKULAM, KALLADIKKODE,, MANNARKKAD TALUK.** - **2 M.SUSEELA AGED 48 YEARS W/O.P.A.KRISHNAN, GOKULAM, KALLADIKKODE, MANNARKKAD TALUK.** **BY ADVS. SRI.K.ABDUL JAWAD SRI.U.MUHAMMED MUSTHAFA** ## **RESPONDENTS/RESPONDENTS:** - **1 MR.C.S.SAJEEV KUMAR S/O.C.SETHU MADHAVAN, T.C.S. 185, LIOYDS ROAD,, KANCHIPURA, CHENNAI DISTRICT,TAMIL NADU.** - **2 THE UNITED INDIA INSURANCE CO.LTD BRANCH OFFICE, MANNARKKAD-678 582., (INSURER OF THE MOTOR CYCLE BEARING REG.NO., T.N.07Y/6538,POLICY NO.101205/31/03/03835,, VALID FROM 29.9.2003 TO 24.9.2004).** **R2 BY ADV. SRI.N.S.MOHAMMED USMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17.10.2018, ALONG WITH MACA.2379/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **M.A.C.A.No.1665 & 2379 OF 2007** ## **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **WEDNESDAY,THE 17TH DAY OF OCTOBER 2018 / 25TH ASWINA, 1940** **MACA.No. 2379 of 2007** **AGAINST THE AWARD IN OPMV 928/2004 of M.A.C.T OTTAPPALAM DATED 31-01-2007** ## **APPELLANTS/PETITIONERS:** - **1 P.A.KRISHNAN S/O. AYYAPPAN, GOKULAM, KALLADIKKODE,, MANNARKKAD TALUK.** **2 M.SUSEELA AGED 48 YEARS W/O. P.A.KRISHNAN, GOKULAM, KALLADIKKODE,, MANNARKKAD TALUK.** **BY ADV. SRI.K.ABDUL JAWAD** ## **RESPONDENTS/RESPONDENTS** **1 C.S.SAJEEV KUMAR S/O. C. SETHU MADHAVAN, T.C.S. 185, LLOYDS ROAD, KANCHIPURA,, CHENNAI DISTRICT, TAMIL NADU.** **2 THE UNITED INDIA INSURANCE CO. LTD. BRANCH OFFICE, MANNARKKAD-678 582., (INSURER OF THE MOTOR CYCLE BEARING REG.NO., TN-07/Y/6538, POLICY NO.101205/31/03/03835,, VALID FROM 29.9.2003 TO 24.9.2004).** ## **R2 BY ADV. SRI.N.S.MOHAMMED USMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17.10.2018, ALONG WITH MACA.1665/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **M.A.C.A.No.1665 & 2379 OF 2007 3** ## **J U D G M E N T** An utmost tragic incident of losing two sons of the appellants/parents in a road traffic accident is the central theme in these appeals. 2. On 05.05.2004, the elder son of the appellants was riding the motor cycle bearing No. TN/07Y-6538, with the younger son on the pillion. While proceeding so, the rider lost control and it hit against the median and overturned, causing fatal injuries leading to the death of the rider occurred on the same day and death of the pillion rider/his brother on the next day. This led to two separate claim petitions filed before the Tribunal, which were tried together. 3. The claim petition preferred in respect of the death of the rider was under Section 163A, whereas the other one, in respect of the death of the pillion rider was under Section 166 of the Motor Vehicles Act. 4. The Insurance Company contested the matter mainly pointing out that the claim was not maintainable against the Company, firstly for the reason that the accident was solely because of the negligence on the ## **M.A.C.A.No.1665 & 2379 OF 2007** ## **4** part of the rider of the motor cycle; secondly that the policy issued by the Company was an “Act Only Policy” and that no additional premium had been collected to cover the risk of the deceased. A copy of the policy was also produced before the Tribunal as Ext.B1. The evidence adduced from the part of the claimants consists of Exts.A1 to A9. No oral evidence was adduced from either side. Based on the materials available, the Tribunal held that the accident was solely because of the negligence on the part of the rider of the motor cycle. Observing that the policy issued was only an “Act only Policy”, which did not provide any valid coverage to the pillion rider and also to the rider of the motor cycle, the Insurance Company was absolved. 5. A total compensation of Rs.196500/- (plus cost of the proceedings) was fixed in the case of the death of the rider reckoning the relevant multiplicand/multiplier and a sum of Rs.2,27,000/(plus cost of the proceedings)was awarded in the case of death of the pillion rider. Since the Insurance Company was absolved, the said liability was directed ## **M.A.C.A.No.1665 & 2379 OF 2007** ## **5** to be satisfied by the first respondent/owner of the motor cycle. 6. The learned counsel for the appellants submits that the finding rendered by the Tribunal is not correct or proper and that in respect of the rider of the motor cycle, it was quite open for the Tribunal to consider the matter under Section 166 of the M.V. Act, though the claim was preferred under Section 163A. It is also pointed out that since the policy issued was stipulated to have coverage in respect of any person riding the motor cycle, it was not correct or proper to have absolved the Insurance Company from the liability in respect of both the rider and the pillion rider. 7. There is no dispute with regard to the factual position or the policy issued, which, of course, was valid on the date of the accident. If it was a package policy, it would definitely cover the risk of the pillion rider and in the absence of any material to show that additional premium was collected for providing coverage to the pillion rider, the course pursued by the Tribunal, exonerating the Insurance Company from the liability and fixing the same upon ## **M.A.C.A.No.1665 & 2379 OF 2007** ## **6** the first respondent/owner of the motor cycle is perfectly within the four walls of law. The contentions stated by the appellants to the contrary stand repelled. 8. Coming to MACA 2379 of 2007, which is in respect of the death of the rider of the motor cycle, the situation under similar circumstances, particularly as to whether such person could be treated as a 'third party' to make him eligible to get compensation, was considered by the Apex Court in _**Ningamma and another**_ _**vs. United India Insurance Co.Ltd.**_ [ **2009 ACJ 2020** ]; wherein it has been held that a person riding a motor cycle and sustaining injuries (if there is no involvement of any other vehicle) will step into the shoes of the owner of the motor cycle and as such, he will not be entitled to get any compensation. There is no liability for the owner to compensate himself, treating as a third party. As such, the appeal preferred by the appellants is on a misconceived idea as to the mandate of the legal provisions and the scope of the policy. 9. Yet another aspect is also relevant in this ## **M.A.C.A.No.1665 & 2379 OF 2007** ## **7** case. It is contended by the appellants, as contended before the Tribunal, that the deceased rider, aged 28 years was working in an Electronic Sales & Service Centre with a monthly salary of Rs.8000/-. Payment of compensation under a structured formula, as envisaged under Section 163A, read with Second Schedule there under, is intended for the benefit of a specific class who are having a maximum annual income of Rs.40000/-. No claim of any other person, who is having a higher income is liable to be treated as under Section 163A, to extend any benefits. This is the law declared by the Supreme Court in **(2004) 5 SCC 385 (Deepal Girishbhai Soni vs. United India Insurance Co. Ltd.)** .This being the position, the appeal filed by the claimants seeking to have the liability shifted to the shoulders of the respondent Insurance Company is not liable to be entertained; more so when there was a specific case that the claim was not maintainable under Section 163A and that the insurer could not be found liable in any manner. 10. The learned counsel for the appellants submits that, even if the claim was not maintainable ## **M.A.C.A.No.1665 & 2379 OF 2007** ## **8** under Section 163A of the M.V. Act, it was quite open for the Tribunal to have it converted and treated under Section 166 granting appropriate extent of compensation and fixing the liability upon the Insurance Company. This Court finds it difficult to accept the said proposition, obviously for the reason that but for the involvement of the motor cycle ridden by the deceased, no other vehicle was involved in the instant case. However, since the Tribunal has awarded a sum of Rs.1,96,500/- as the total compensation payable in respect of the demise of the rider, fixing the liability upon the first respondent, it is open for the appellants to proceed with further steps for realising the compensation from the first respondent. Interference is declined and the appeals stand dismissed accordingly. ## **Sd/- P.R.RAMACHANDRA MENON JUDGE** ## **/TRUE COPY/** **P.S TO JUDGE.** _lk_