The New India Assurance Company Limited v. Madhuja Kumari and Santhosh Kumar

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` WEDNESDAY, THE 21[ST] DAY OF JUNE 2023 / 31ST JYAISHTA, 1945 ``` ## **`MACA NO.2341 OF 2014`** ``` AGAINST THE AWARD DATED 18.02.2014 IN O.P.(MV)NO.2297 OF ``` ``` 2004 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THIRUVANANTHAPURAM APPELLANT/2[ND] RESPONDENT: ``` ``` THE NEW INDIA ASSURANCE COMPANY LIMITED, THIRUVANANTHAPURAM, NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. ``` ``` BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ``` ## **`RESPONDENTS/PETITIONER AND 1[ST] RESPONDENT:`** - **`1 MADHUJA KUMARI, D/O.SUBHADRA, SUBHADRA BHAVAN, CHARUVILAKATHU VEEDU, TC 1/428, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-11.`** - **`2 SANTHOSH KUMAR, S/O.KRISHNAN KUTTY, VAYALIL VEEDU, TC 3/9812, ARAPPURA LANE, MUTTADA P.O., THIRUVANANTHAPURAM-25.`** ``` BY ADVS.SRI. VISHNU BHUVANENDRAN SMT.A.SALINI LAL SRI.BENOJ C AUGUSTIN SRI.P.K.JAYAKRISHNAN SMT.J.KASTHURI SRI.NAGARAJ NARAYANAN SRI.PRATHAP PILLAI SRI.SAIJO HASSAN SRI.R.SUNIL KUMAR SRI.SEBIN THOMAS SRI.VIVEK V. KANNANKERI ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY ``` ``` HEARD ON 21.06.2023, ALONG WITH MACA.2373/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 M.A.C.A.Nos.2341 & 2373 of 2014 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` WEDNESDAY, THE 21[ST] DAY OF JUNE 2023 / 31ST JYAISHTA, 1945 ``` ``` MACA NO.2373 OF 2014 ``` ``` AGAINST THE AWARD DATED 18.02.2014 IN O.P.(MV)NO.2303 OF ``` ``` 2004 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THIRUVANANTHAPURAM ``` ## **`APPELLANT/2[ND] RESPONDENT:`** ``` THE NEW INDIA ASSURANCE COMPANY LIMITED THIRUVANANTHAPURAM, NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI - 11. ``` ``` BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ``` ## **`RESPONDENTS/PEITIONER AND 1[ST] RESPONDENT:`** - **`1 MASTER ADARSH (MINOR), REPRESENTED BY HIS MOTHER MADHUJA KUMARI, D/O.SUBHADRA, SUBHADRA BHAVAN, CHARUVILAKATHU VEEDU, TC 1/428, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM - 695 511.`** - **`2 SANTHOSH KUMAR, S/O.KRISHNAN KUTTY, VAYALIL VEEDU, TC 3/9812, ARAPPURA LANE, MUTTADA P.O., THIRUVANANTHAPURAM, PIN - 695 525.`** ``` BY ADVS.SRI.BENOJ C AUGUSTIN SMT.A.SALINI LAL SMT.J.KASTHURI SRI.NAGARAJ NARAYANAN SRI.PRATHAP PILLAI SRI.SAIJO HASSAN SRI.R.SUNIL KUMAR SRI.SEBIN THOMAS SRI.C.J.VARGHESE SRI.VIVEK V. KANNANKERI ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY ``` ``` HEARD ON 21.06.2023, ALONG WITH MACA.2341/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 M.A.C.A.Nos.2341 & 2373 of 2014 ## **JUDGMENT** The appellant, who is the 2[nd] respondent insurer in O.P.(MV)Nos.2297 and 2303 of 2004, has filed these appeals challenging the common award dated 18.02.2014 passed by the Motor Accidents Claims Tribunal, Thiruvananthapuram in the above claim petitions. Since a common issue is raised, these appeals are heard together and are being disposed of by this common judgment. 2. M.A.C.A.No.2341 of 2014 arises out of O.P.(MV) No.2297 of 2004, a claim petition filed by the 1[st] respondent herein-claimant, under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by her in a motor accident, which occurred on 06.05.2004, while she was travelling as pillion rider, along with her minor son (claimant in O.P.(MV)No.2303 of 2004), on a motorcycle bearing registration No.KL-01/K-0506, ridden by her husband. M.A.C.A. No.2373 of 2014 arises out of O.P.(MV) No.2303 of 2004, another claim petition filed by the minor son of the appellant in M.A.C.A.No.2341 of 2014, aged 2½ years, claiming compensation on account of the injuries sustained in the very same accident. 3. At the place of accident, a tree fell down due to heavy 4 M.A.C.A.Nos.2341 & 2373 of 2014 rain and wind, on the motorcycle in which the claimant in both claim petitions were the pillion riders. In the accident, they sustained injuries. Alleging negligence on the part of the rider of the motorcycle, who was not even made a party, claim petitions were filed before the Tribunal, arraying the registered owner of the said vehicle as the 1[st] respondent (1[st] respondent herein) and insurer as the 2[nd] respondent (appellant herein). 4. Before the Tribunal, the 1[st] respondent owner did not file a written statement. The 2[nd] respondent insurer filed a written statement in O.P.(MV)No.2303 of 2004 contending, inter alia, that the motorcycle was covered by an ‘Act only Policy’, which does not cover the risk of the pillion rider or a gratuitous rider and no additional premium was remitted. The insurer also raised a contention that the rider of the motorcycle was not made a party to the claim petitions. Further, there was a delay of 35 days in the registration of crime. The claim petitions were tried together. On the side of the claimants, Exts.A1 to A11 were marked. Both sides have not chosen to adduce any oral evidence. 5. After considering the pleadings and evidence on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent riding of the motorcycle 5 M.A.C.A.Nos.2341 & 2373 of 2014 by its rider. Without properly answering the question on the liability of the appellant-insurer, since the motorcycle was covered by an ‘Act only Policy’, the Tribunal awarded total compensation of Rs.61,150/- O.P.(MV)No.2297 of 2004 and a total sum of Rs.6,850/- in O.P.(MV)No.2303 of 2004, together with simple interest at the rate of 9% per annum from the date of filing of the respective claim petition till realisation, from the respondents, i.e., the 2[nd] respondent-1[st] respondent-owner and the appellant-2[nd] respondent insurer, jointly and severally. 6. Challenging the common award passed by the Tribunal in O.P.(MV)Nos.2297 and 2303 of 2004, to the extent it fastens the liability on the appellant-insurer to pay the amount of compensation, by indemnifying the 1[st] respondent owner of the motorcycle, the insurer is before this Court in these appeals, invoking the provisions under Section 173 of the Motor Vehicles Act, 1988. 7. On 10.12.2014, when M.A.C.A.No.2341 of 2014 came up for admission, this Court admitted the matter on file and issued notice to the 1[st] respondent. The learned counsel took notice for the 2[nd] respondent-claimant. By the order dated 10.12.2014 in I.A.No.2666 of 2014, this Court granted an interim stay of execution of the award against the 2[nd] respondent 6 M.A.C.A.Nos.2341 & 2373 of 2014 insurer in O.P.(MV)No.2297 of 2004 on the file of the Motor Accidents Claims Tribunal, Thiruvananthapuram, for a period of three months. 8. On 27.11.2014, when M.A.C.A.No.2373 of 2014 came up for admission, this Court admitted the matter on file. By the order in I.A.No.2700 of 2014, this Court granted interim stay of execution of the award against the 2[nd] respondent insurer in O.P.(MV)No.2303 of 2004 on the file of the Motor Accidents Claims Tribunal, Thiruvananthapuram, till the disposal of the appeal. 9. Heard the learned counsel for the appellant-2[nd] respondent insurer, the learned counsel for the 1[st] respondentowner and also the learned counsel for the 2[nd] respondentclaimant, in the respective appeals. 10. The sole issue that arises for consideration in these appeals is as to whether the impugned common award dated 18.02.2014 of the Tribunal, to the extent of fastening the liability on the appellant-2[nd] respondent insurer to pay the amount of compensation awarded to the claimant in the respective claim petitions, can be sustained in law. 11. Before the Tribunal, along with I.A.No.1209 of 2013, the insurer produced a certified copy of the policy of the 7 M.A.C.A.Nos.2341 & 2373 of 2014 motorcycle involved in the accident. Based on the order in I.A.No.1209 of 2013 the Tribunal reopened the evidence of the insurer, as stated in paragraph 5 of the impugned award. However, the copy of the insurance policy, which is an ‘Act only Policy, was omitted to be marked. On a query made by this Court, the learned counsel for the 1[st] respondent owner would submit that motorcycle bearing registration No.KL-01/K-0506 was covered by an ‘Act only Policy, which will not cover the risk of pillion riders. The said issue is no more _res integra_ in view of the law laid down in **United India Insurance Co. Ltd. v. Thilak Singh [2006 (2) KLT 884 (SC)], Oriental Insurance Co. Ltd. v. Sudhakaran [2008 (2) KLT 936]** and **New India Assurance Co. Ltd. v. Daisy Paul and another [2021 (2) KHC 449]** . 12. In view of the law laid down in the decisions referred to supra, this Court finds no reason to sustain the impugned common award, to the extent of the appellant-2[nd] respondent insurer in the claim petitions is fastened with the liability to pay the amount of compensation to the 2[nd] respondent-claimant in the respective claim petitions, by indemnifying the 1[st] respondent herein-registered owner of the motorcycle. In such circumstances, the impugned common award dated 18.02.2014 8 M.A.C.A.Nos.2341 & 2373 of 2014 of the Motor Accidents Claims Tribunal, Thiruvananthapuram is set aside to that extent. In the result, the appeals filed by the insurer are allowed as above. Sd/- **ANIL K. NARENDRAN, JUDGE** AV/22/6