Subaida, Mehra and Muneera v Safeer K K, Ramesan and The Oriental Insurance Co. Ltd. (MACA No. 4011 of 2017)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MRS. JUSTICE SHIRCY V.** **THURSDAY, THE 14TH DAY OF DECEMBER 2017 / 23RD AGRAHAYANA, 1939** **MACA.No. 4011 of 2017** **AGAINST THE AWARD IN OP(MV) 1488/2016 of M.A.C.T.,KOZHIKODE DATED 04-03-2017** ## **APPELLANT(S)/PETITIONERS 1 TO 3** ## **1 SUBAIDA** **W/O.KUNHABDULLA, AGED 61 YEARS, RUKHIYA VILLA, VILAYATTUR, P.O. IRINGATH, PAYYOLI VIA, KOZHIKODE-673523. (MOTHER OF THE DECEASED)** ## **2 MEHRA,** **W/O.ABDUL LATHEEF, AGED 37 YEARS, VADAKKE CHALIL BISMILLA, NIDUMPOYIL, P.O.KOZHUKKALLUR, KOZHIKODE-673524, (SISTER OF THE DECEASED).** ## **3 MUNEERA,** **W/O.SHAMEER, AGED 33 YEARS, NEELOTH MEETHAL HOUSE, P.O.PERAMBRA, KOZHIKODE-673525, (SISTER OF DECEASED)** **BY ADVS.SRI.PRATHEESH.P SRI.M.MUHAMMED SHAFI SMT.RENY ANTO** ## **RESPONDENT(S)/RESPONDENTS:** ## **1. SAFEER K K** **S/OMUHAMMED KOYA, KISFA, MOOZHIKKAL, CHIRICHILIL, CHELAVOOR P.O., KOZHIKODE-673571.** ## **2. RAMESAN,** **S/O.PAVITHRAN, AGED 43 YEARS, VALIYA VETTUMMAL HOUSE, MARUTHOMKARA P.O., CHEENAVELI, KAVILUMPARA VIA, KOZHIKODE-673513.** ## **3. THE ORIENTAL INSURANCE CO. LTD.,** **DO.II, PRAMOD BUILDING, CHEROOTTY ROAD, KOZHIKODE-673032.** **R BY SMT.K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.K.ABDUL REHIM & SHIRCY V.,JJ.** ## **------------------------------------------------------** ## **M.A.C.A.No.4011 of 2017** **-----------------------------------------------------Dated this the 14[th] day of December, 2017** ## **JUDGMENT** ## **C.K.Abdul Rehim,J.** When the above appeal came up for admission, Adv. K.S.Santhi, Standing Counsel for the 3[rd] respondent entered appearance. In view of the fact that the judgment proposed in this case will affect only the 3[rd] respondent, because they have admitted the policy of the vehicle in question, we found it not necessary to issue notice to the respondents 1 and 2. Hence the appeal is hereby disposed of at the stage of admission itself. 2. The claimants in O.P(MV)No.1488/2016 on the files of the Principal Motor Accidents Claims Tribunal, Kozhikode are the appellants herein, challenging the award dismissing the claim petition. The accident in question occurred on 6.6.2014 at 1.45 p.m. The person died in the accident named, Mohammed Shamnas was riding a motor cycle. According to the claimants, at the spot of the accident, a bus driven by the 2[nd] respondent in the front of the motor cycle suddenly breaked without any signal, causing the motor cycle to hit on the bus and the deceased sustained very grievous injuries. He succumbed to the injuries sustained on the way to hospital. The respondents 1 and 2 are the owner and the driver of the bus respectively and the 3[rd] respondent is the insurer of the bus. 3. The claim petition was filed under Section 163A of the Motor Vehicles Act. The Tribunal found that, going by the police records, the deceased himself was negligent in causing the accident. It was noticed that, the police after investigation of the case had submitted the final report implicating the deceased accusing him with offences punishable under Sections 279,338 and 304A of IPC; and reporting the charge as abated due to his death. It was also noticed that the deceased was riding the motor cycle without any valid licence. The claimants have adduced oral evidence by examining PW1, who deposed that the deceased was actually a pillion rider. But he deposed that the motor cycle in question dashed on the rear of the bus. The Tribunal concluded that the claimants M.A.C.A.No.4011 of 2017 3 have failed in proving any negligence on the part of the 2[nd] respondent, who is the driver of the bus. Following the decision of the Honorable Supreme Court in _**National Insurance Company Ltd. vs. Sinitha (2011(4)**_ _**KLT 821)**_ , the Tribunal held that the claimants are not entitled to get compensation under Section 163A, because the deceased himself was negligent in causing the accident. The Tribunal further observed that the deceased cannot be considered as a third party under Section 163A of Motor Vehicles Act, because the deceased himself was the person negligent. 4. Learned counsel for the appellants had pointed out a latest decision of the Honourable Supreme Court in _**Union of India vs. Sunil Kumar 2017 (4) KLT 1093**_ _**(SC**_ ). It is evident that, in a reference made to a larger bench doubting correctness of the dictum in **Sinitha's case** (supra), the honorable Supreme Court found that, in a proceeding under Section 163A of the Act, it is not open for the insurer to raise any defence of negligence on the part of the victim. The Apex Court observed that, the grant of compensation under Section 163A of the Act on the basis of the M.A.C.A.No.4011 of 2017 4 structured formula is in the nature of a final award and the adjudication thereunder is required to be made without any requirement of proof of negligence of the driver/owner of the vehicle(s) involved in the accident. Therefore, it is evident that as per the law now remaining settled, even in a case where the victim himself was negligent in causing the accident, a claim under Section 163A is maintainable. In other words, the insurer has no right to contend a claim under Section 163A on the ground that the victim himself was negligent in causing the accident. 5. The learned Standing Counsel had raised a contention that the claimants ought to have impleaded the insurer of the motor cycle involved in the accident. But it is to be noted that, the bus in question as such is a vehicle involved in the accident; and as far as the driver, owner and insurer of the bus are concerned, the victim in the case is a third party. In a Full Bench decision of this Court in _**Oriental Insurance Co.Ltd. vs. Joseph [2012 (2) KLT 132 (FB)]**_ it is observed that, if the insured and insurer of the other vehicle involved in the accident is made a party to the proceedings, then automatically the deceased and his legal representatives, who are the claimants, could be termed as third parties so far as the other vehicle is concerned. In the M.A.C.A.No.4011 of 2017 5 case at hand, it cannot be denied that the bus in question is one of the vehicles involved in the accident. Since the claimants are not burdened with the proof of negligence and since a claim under Section 163A is sustainable even in the case where the deceased himself is negligent, it cannot be validly contended that the driver/owner or insurer of the bus cannot be held liable for payment of the compensation. 6. Under the above mentioned circumstances, we hold that the appellants are entitled to maintain a claim under Section 163A against the respondents. Since the 3[rd] respondent had admitted the policy of the bus, the said respondent is liable to pay the compensation for which the appellants are entitled. 7. We notice that the Tribunal has not computed or determined the amount of compensation for which the appellants are entitled. Therefore, we think it appropriate to remit the case to the Tribunal for the limited purpose of determining the compensation and for passing appropriate award. In the result, the appeal is allowed. The impugned award of the Tribunal is hereby set aside. O.P(MV)No.1488/2016 is ordered to be restored on the files of the Principal Motor Accidents Claims Tribunal, Kozhikode. The said Tribunal is M.A.C.A.No.4011 of 2017 6 directed to determine the compensation and to pass appropriate award, after affording opportunity of personal hearing to the appellant as well as to the 3[rd] respondent. Considering the fact that the claim is of the year 2016, all earnest efforts shall be taken to dispose of the claim petition as early as possible . The parties shall appear before the tribunal on 29.1.2018. Sd/- ## **C.K.ABDUL REHIM JUDGE** Sd/- **SHIRCY.V JUDGE** smm M.A.C.A.No.4011 of 2017 7 The number of OPMV in the judgment dated 14/12/2017 in MACA No.4011/2017 stands corrected as OPMV 1488/2015 instead of OPMV 1488/2016 in the head note, first line of paragraph 2, last line in page no.5, and the year 2016 in the 6[th] line of page No.6 of the judgment is corrected as 2015 as per order dated 10/08/2022 in I.A.No.1/2019 in MACA 4011/2017. ## Sd/- Joint Registrar