The New India Assurance Company Limited v. P. N. Somasekharan Nair and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH** **MONDAY, THE 17TH DAY OF NOVEMBER 2014/26TH KARTHIKA, 1936** **MACA.No. 253 of 2009 ( ) -------------------------** **AGAINST THE AWARD IN OPMV 382/2003 of M.A.C.T., PALAKKAD, DATED 01-04-2008** **APPELLANT(S)/2ND RESPONDENT::** **-----------------------------------------------------** **THE NEW INDIA ASSURANCE COMPANY LIMITED, ATTINGAL NOW REPRESENTED BY ITS MANAGER REGIONAL OFFICE, M.G.ROAD, KOCHI-11.** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** **RESPONDENT(S)/PETITIONERS 1 & 2 AND IST RESPONDENT:: ------------------------------------------------------** **1. P.N.SOMASEKHARAN NAIR, S/O.NARAYANA PILLAI, 'ABHILASH', KOLMUKKU NENMARA VILLAGE, CHITTOOR TALUK.** **2. A.K.GOMATHY AMMA, W/O.P.N.SOMASEKHARAN NAIR, DO, DO.** **3. K.PRINUSAJI, S/O.KRISHNAN NAIR, LEENA COTTAGE, KUNNUVANNAM, ATTINGAL P.O.** ## **R1 & R2 BY ADV. SRI.T.K.SANDEEP** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17-11-2014, ALONG WITH CO. 97/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** THOTTATHIL B.RADHAKRISHNAN & BABU MATHEW P. JOSEPH, JJ. .................................................................... M.A.C.A.No.253 of 2009 and Cross Objection No.97 of 2013 and I.A.No.2712 of 2013 .................................................................... Dated this the 17[th] day of November, 2014. ## J U D G M E N T Thottathil B.Radhakrishnan, J. 1.The captioned appeal is by the insurer of a motor vehicle (motor cycle) which met with road traffic accident. The person who was riding the motor cycle died. An application under Section 163A of the Motor Vehicles Act, 1988, “Act”, for short, was filed against the owner and insurer of the vehicle. The Tribunal awarded compensation. It also looked into the material evidence and held that the deceased was negligent. - 2.Appealing insurer impeaches the award on the strength of the finding of the Tribunal that the deceased was negligent. The learned senior counsel appearing for the appellant relied on the decision of the Honourable Supreme Court of India in National MACA 253/09 -2- Insurance Co. Ltd. v. Sinitha [2011(4) KLT 821(SC)], which was followed by a Full Bench of this Court in Oriental Insurance Co. Ltd. v. Joseph [2012(2)KLT 132 (FB)]. - 3.It is also pointed out that the earlier decision in Sinitha (supra) was since doubted by a two Judge Bench of the Honourable Supreme Court, the matter stands referred for consideration by a larger Bench, and the order of reference is reported in United India Insurance Co.Ltd. v. Sunil Kumar [2013(4)KLT 488(SC)]. - 4.In the aforesaid situation, we think that it would be appropriate for us to consider as to what is the effect of primary legislation, more particularly because, a still earlier Full Bench decision of this Court governed the field. In National Insurance Co.Ltd. v. Malathi C.Salian [2003(3) KLT 460 (FB)], this Court held that the liability to pay compensation under Section 163A of the Act is on the principle of no fault, and, therefore, the question as to who is at fault is immaterial and Section 163A of the Act does not make any MACA 253/09 -3- provision for apportionment of the liability. It was noted that the Insurance Company cannot defeat a claim under Section 163A of the Act on the ground that the death or disablement had occurred due to the wrongful act, neglect or default on the part of the deceased or the disabled person, as the case may be. In this context, we may refer to the decision of this Court in Jacob v. Mohammed [2004(1)KLT 893] which, in our view, correctly noted that the liability under Section 163A of the Act is one created by the statute and it falls outside the purview of tort or damages. The decision of the Honourable Supreme Court in Oriental Insurance Co.Ltd. v. Hansrajbhai V.Kodala [2001 (2) KLT 235 (SC)] was quoted to recall the object of the legislation of Section 163A of the Act. Under such circumstances and guided by the principles contained in the aforesaid decisions, we see that there is no room whatsoever for us to hold that Section 163A of the Act provides any opening for a defence by the respondents, including the insurer, in a claim petition, to plead negligence on the deceased or one, who is affected by permanent disablement. No MACA 253/09 -4- such answer to an application under Section 163A of the Act could be countenanced. The appeal of the insurer on that count, therefore, fails. 5.The next submission by the learned senior counsel on behalf of the appellant is based on the insurance policy. The argument is on the premise that the vehicle was covered by an Act Only Policy, which did not cover the liability to compensate the rider. For one thing, the written statement filed by the appellant before the Tribunal did not contain any such plea. Paragraph No.7 of the written statement may indicate that the deceased was riding the motor cycle in a rash and negligent manner and paragraph No.11 of the written statement would indicate that the defence set up by the insurer in that regard was that the applicants being the heirs of the deceased Girish were not entitled to claim compensation on the basis of the act done by Girish in riding motor vehicle in a rash and negligent manner. This is not a plea that the vehicle is covered only by an Act Only Policy, that is to say, only for MACA 253/09 -5- liabilities enumerated under Section 147 of the Act. This position notwithstanding, we also see that for the first time in the appeal, a ground has been specifically raised that the vehicle had only an Act Only Policy. I.A.No.2712 of 2013 is filed seeking leave to produce additional evidence in the appeal under Section 173 of the Act. The appeal lies to an established High Court and it is, predominantly, an appeal, which is a matter relating to civil disputes. Therefore, the civil appellate jurisdiction of this Court in hearing appeals under the Act will be guided by those principles and procedures as would be applicable to civil appeals. Order XLI Rule 27 of the Code of Civil Procedure, therefore, applies for admission of additional evidence. The twin conditions to be satisfied under Order XLI Rule 27 of the Code of Civil Procedure require that a person who seeks admission of additional evidence in appeal was prevented by sufficient cause from producing the evidence before the court below in spite of exercise of due diligence or that the court of first instance has refused to admit evidence, which it ought to have admitted. For MACA 253/09 -6- one thing, the question of evidence, either at the trial side or at the appellate side, would arise only in relation to a pleading which is already made. As already noted, there is no pleading in the written statement that the vehicle was covered only by an Act Only Policy. Secondly and more importantly, we are satisfied that no ground is established to hold that the appellant was prevented from producing the evidence before the court below, in spite of exercise of due diligence. We have also examined the proceedings papers which show that after the evidence on behalf of the claimants were recorded on 01.12.2007, the case was adjourned for evidence of the respondents in six occasions. The insurer did not utilise any such opportunity to produce any evidence, whatsoever. Obviously, the appellant would not have then necessarily produced the policy document, since there is no plea based on the contents of the policy. Under such circumstances, we are not inclined to allow the interlocutory application seeking admission of additional evidence. I.A.No.2712 of 2013 is, therefore, dismissed. MACA 253/09 -7- - 6.Notwithstanding the dismissal of the interlocutory application, we may also note that the policy that is produced is not in the name of Girish, the deceased. The vehicle stood insured, going by the policy document now held out by the insurer, in the name of the 3[rd] respondent in the appeal. Therefore, the question of the rider being the insured does not arise. - 7.With the aforesaid, we also do not find any substance in the plea on behalf of the appellant before us that the claim petition was barred by limitation. The claimants were parents of the deceased. We see no ground to upturn the award on the plea of limitation. - 8.Cross Objection filed by the claimants is on the ground that the finding regarding the negligence is not sustainable. We do not have to go into that matter except to say that it was not within the domain or jurisdiction of the Claims Tribunal to conduct any enquiry as to whether the injured or the person visited with MACA 253/09 -8- permanent disablement had been negligent in incurring injuries or death. We are, therefore, of the view that the findings in the impugned award, in that regard, are unnecessary and they are liable to be vacated. We do so. In the result, the appeal is dismissed and the cross objection is ordered vacating the findings as to negligence in the impugned award. No costs. (THOTTATHIL B.RADHAKRISHNAN, JUDGE) (BABU MATHEW P. JOSEPH, JUDGE) jg