The Manager, New India Assurance Company Ltd. vs K.V. Prachod, K.V. Pradheesh, Reji Mathew, Faisal and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN ``` ``` THURSDAY, THE 15[TH] DAY OF JUNE 2023 / 25TH JYAISHTA, 1945 ``` ``` M.A.C.A.NO.221 OF 2022 ``` ``` AGAINST THE AWARD DATED 22.01.2021 IN O.P (MV) NO.635/2019 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KALPETTA ``` ## **`APPELLANT/3RD RESPONDENT:`** ``` THE MANAGER, NEW INDIA ASSURANCE COMPANY LTD. SHAFEER COMPLEX, OPPOSITE YMCA, KANNUR ROAD, KOZHIKODE-1, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM. ``` ``` BY ADVS. LAL GEORGE SEBASTIAN VARGHESE(K/141/2000) ``` ## **`RESPONDENTS/PETITIONERS 1 & 2:`** - **`1 K.V.PRACHOD, AGED 52 YEARS S/O.VASU, KOLLARA HOUSE, NAMBIARKUNNU POST, CHEERAL, SULTHANBATHERY-673595.`** - **`2 K.V.PRADHEESH, AGED 48 YEARS S/O.VASU, KOLLARA HOUSE, NAMBIARKUNNU POST, CHEERAL, SULTHANBATHERY-673595.`** - **`3 REJI MATHEW, AGED 37 YEARS S/O.ALEXANDER, PANDAMANNIL HOUSE, MAILALLAMPARA, KAKKAD POST, PUTHUPADI VILLAGE, THAMARASSERY VIA, KOZHIKODE-673586.`** ## **MACA No.221 of 2022 2** ``` 4FAISAL, AGED 49 YEARS, S/O.BEERANKUTTY, ULLIYADAN, KUNNUMMAL HOUSE, KODUVALLY POST & VILLAGE, KOZHIKODE-673572. ``` ``` BY ADVS. A.R.NIMOD M.A.AUGUSTINE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **MACA No.221 of 2022 3** ## **`MURALI PURUSHOTHAMAN, J.`** ``` ------------------------------------------- M.A.C.A.No.221 of 2022 ------------------------------------------- Dated this the 15[th] of June, 2023 ``` ## **`JUDGMENT`** ``` The appeal is preferred by the 3[rd] respondent Insurance Company against the award in O.P(MV) No.635 of 2019 of the Motor Accidents Claims Tribunal, Kalpetta. The parties are referred to as per their status in the claim petition. ``` ``` 2. Petitioners are the elder brothers of deceased Pramod, who died in a motor vehicle accident, which occurred on 21.05.2007. According to the petitioners, the deceased, while travelling in a KSRTC bus, sustained serious injuries when a lorry driven by the 1[st] respondent hit against the bus. Pramod succumbed to injuries on the way to hospital. It is stated that two years after the ``` ## **MACA No.221 of 2022 4** ``` death of the deceased, the mother died on 26.05.2009 on account of mental depression. Ten years after the death of the mother and 12 years after the date of the accident, the petitioners preferred the claim petition under Section 166 of the Motor Vehicles Act [for brevity, ‘the MV Act’] as the legal heirs of their late mother, claiming compensation for the death of Pramod. The petitioners produced Exts.A1 to A9 documents in support of their claim. Ext.A1 is the copy of the First Information Report, Ext.A2 series are the copies of the AMVI report, Ext.A3 is the copy of charge sheet and Ext.A4 is the copy of the postmortem report of the deceased. ``` ``` 3. The Insurance Company entered appearance and resisted the application contending that the accident happened due to the rash and negligent driving of the driver of the KSRTC bus, in which ``` ## **MACA No.221 of 2022 5** ``` the deceased was travelling. It was also contended that the amount of compensation claimed under various heads is exorbitant and that the claim is barred by limitation. ``` ``` 4. The Tribunal found that the accident happened due to the negligence of the 1[st] respondent, the driver of the lorry and the deceased Pramod died due to the injuries sustained in the accident. It was also found that the petitioners have preferred the claim as the legal heirs of late Indira, the mother of the deceased and being her legal heirs, the petitioners are entitled to compensation, which ought to have been awarded to their late mother. The Tribunal also found that the petitioners are major brothers having their own income and only the mother is dependent on the deceased and awarded an amount of Rs.22,05,000/- as compensation for loss of ``` ## **MACA No.221 of 2022 6** ``` dependency. The Tribunal awarded a total compensation of Rs.22,98,000/- under various heads to the petitioners with 8% interest and cost and the Insurance Company was directed to satisfy the award. Challenging the award, the Insurance Company has come up in appeal. ``` ``` 5. The main contention of the 3[rd] respondent/Insurance Company in this appeal is that the accident happened on 21.05.2007 and the claim petition is filed on 07.12.2019, 12 years after the accident. They contended that there is inordinate delay in filing the claim petition and the claim is barred by limitation. It is also contended that the petitioners, being aged 48 & 52, cannot be treated as dependent on the deceased and they are not entitled to compensation under the head of loss of dependency. ``` ``` 6. Sri.Sebastian Varghese, the learned ``` ## **MACA No.221 of 2022 7** ``` counsel for the Insurance Company relies on the decision reported in Purohit v. Khatoonbee [(2017) 4 SCC 283]&National Insurance Company v. Jojo [2019 (4) KLT 127] in support of their contentions. ``` ``` 7. The learned counsel for the petitioners have filed I.A. No.2 of 2022 before this Court producing the copy of an order of the Tribunal dated 09.12.2019 in I.A. No.3651 of 2019 in O.P(MV) No.635 of 2019 (claim petition herein)condoning the delay in filing the claim petition. It is submitted by Sri.A.R.Nimod, the learned counsel for the petitioners that the Original Petition was filed along with an application for condonation of delay, as a matter of abundant caution. It is after considering the reasons stated therein that the Tribunal has condoned the delay. It is contended by Sri.Nimod that the order of the Tribunal condoning the delay is not challenged by the 3[rd] respondent ``` ## **MACA No.221 of 2022 8** ``` insurance company, either at the time of passing the said order or in the appeal preferred before this Court. Sri. Nimod submits that the mother could not prefer the claim during her life time as she fell in grave mental depression after the death of her son and died two years after the death of Pramod. ``` ``` 8. The contention of the Insurance Company is that the claim is stale, since it has been filed 12 years after the date of the accident. In the written statement filed by the 3[rd] respondent before the Tribunal, it is stated that the claim petition is filed after an inordinate delay and is barred by limitation. Section 166 of the MV Act deals with application for compensation. Section 166(3) of the MV Act, as it now stands, provides that no application for compensation shall be entertained unless it is made within six months of the ``` ## **MACA No.221 of 2022 9** ``` occurrence of the accident. The same has been inserted in the Act by Act 32 of 2019 and came into force with effect from 01.04.2022. In the original Act enacted in 1988, though there was a provision providing for limitation, the same was deleted with effect from 14.11.1994 vide Motor Vehicles (Amendment) Act, 1994. The accident in the present case took place in the year 2007, during which period there was no time limit for filing a claim petition. Therefore, it will not be open for the 3[rd] respondent to contend that the claim preferred by the petitioners is barred by limitation. Then the question is whether the claim is stale. The Courts will usually be slow in interfering with delayed claims, since there won’t be sufficient materials or proof for the Courts to adjudicate such claims. The defendants will find it difficult to defend and disprove the allegation at that distance of time. A ``` ## **MACA No.221 of 2022 10** ``` Division Bench of this Court, while considering the belated claims in Biju K.Francis & Others v. Kerala State Road Transport Corporation & Others (2005 (1) KLT 579), held in paragraph 3 as follows: ``` ``` “3. One objection taken by the learnedcounselappearingforthe corporation is that the accident is alleged to have occurred in 1978 and the claim petition was filed only on 14.01.1995 and the claim petition is barred by limitation. Even though the accident occurred in 1978, claim petition was filed after 1988 Act came into force. There is no time limit for filing claim petition under the Motor Vehicles Act, 1988. The original time limit prescribed was omitted by the Motor Vehicles (Amendment) Act, 1994 which came into force on 14.11.1994. The Supreme Court in Dhannalal V. D.P.Vijayavargiya, AIR 1998 SC 2155held that the parliament in its wisdom has taken away the time limit prescribed in filing claim petition before the Motor Accidents Claims Tribunal in all pending matters also on the date of amendment. Even if there is no limitation, claim petition cannot be filed without sufficient reasons after many years since the respondents will not be in a position to disprove the allegation at that distance of time. In the ``` ## **MACA No.221 of 2022 11** ``` words, a stale claim petition need not be treated at par with the claim petition filed within a reasonable time. In such cases, burden is heavy on the part of the claimant to prove that the accident occurred in the manner alleged.” ``` ``` Therefore, in stale claims, the burden is heavy on the part of the claimants to prove that the accident happened in the manner alleged. ``` ``` 9. The petitioners have preferred the claim after 12 years. They have filed the claim petition along with an application to condone the delay. The learned counsel for the petitioners contended that the order of the Tribunal condoning the delay was not challenged by the insurer either during the pendency of the proceedings before the Tribunal or in this appeal. Therefore, the 3[rd] respondent is not justified in contending that the Tribunal ought not have entertained the claim petition with an inordinate delay. ``` ## **MACA No.221 of 2022 12** ``` 10. In a belated claim, as held by this Court, burden is heavy on the part of the claimant to prove that the accident occurred in the manner as alleged. The claims under various heads have to be proved by producing necessary documents. In the case on hand, the petitioners have produced all material documents including FIR, AMVI’s reports, charge sheet, postmortem report, death certificate etc. to prove that the accident occurred in the manner as alleged. The Tribunal, after considering the evidence adduced, came to the conclusion that the accident happened in the manner as alleged by them. The claimants have thus discharged the burden by proving that the accident occurred in the manner as alleged. With regard to the existence of insurance policy for the offending vehicle at the time of accident, the existence of policy was admitted by the Insurance Company. ``` ## **MACA No.221 of 2022 13** ``` 11. To substantiate other claims under various heads also, the petitioners have adduced evidence. The employer of the deceased was examined as PW1 and Ext. A9 family relationship certificate was produced to prove the relationship between the petitioners, the deceased and their mother. Based on evidence adduced, the Tribunal arrived at findings regarding negligence of the 1[st] respondent, the quantum of compensation and the liability of the Insurance Company to indemnify the 2[nd] respondent. Therefore, in the facts and circumstances of the case, it cannot be contended that the claim of the petitioners is stale and the said contention is rejected as being bereft of merit. ``` ``` 12. Another contention of the insurer is that the petitioners are major brothers, aged 48 & 52, having own source of income and cannot be ``` ## **MACA No.221 of 2022 14** ``` considered as the dependents of the deceased and cannot claim any compensation for dependency. It is to be noted that the petitioners have filed the claim petition as the legal representatives of deceased Indira, the mother of deceased Pramod. The Tribunal has awarded compensation to the petitioners, as the legal representatives of the deceased Indira, who was entitled for compensation for the death of her son. The claim of the mother for compensation for the death of her son crystalised on 21.05.2007, on the date of accident. There is justifiable reason for not preferring the claim by the mother during her life time. The Tribunal has rightly found that the petitioners are major brothers and having their own source of income and cannot be considered as the dependents of deceased Pramod. Being the legal representatives of late Indira, they have been awarded ``` ## **MACA No.221 of 2022 15** ``` compensation, which their mother was entitled to, if she was alive. Therefore, the said contention is also without any merit. ``` ``` 13. With regard to the quantum of compensation, there is no challenge in the appeal and no arguments were advanced. I find that the compensation awarded under the various heads is just and reasonable. ``` ``` In the result, the appeal is dismissed. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/16/06/2023 ```