The New India Assurance Company Limited v. Pradeep alias Pranav Kumar S/O L Nandakumaran Nair and Shaju Kumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **FRIDAY, THE 26TH DAY OF JULY 2013/4TH SRAVANA, 1935** ## **MACA.NO. 829 OF 2013 ()** ## **----------------------------------O.P(MV) NO.1954 OF 2013, MOTOR ACCIDENTS CLAIMS TRIBUNAL, NEYYATTINKARA** ## **APPELLANT/2ND RESPONDENT:** **----------------------------------------------** **THE NEW INDIA ASSURANCE COMPANY LIMITED TRIVANDRUM, NOW REPRESENTED BY ITS MANAGER REGIONAL OFFICE, M.G.ROAD, KOCHI-11.** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT(S)/APPLICANT AND IST RESPONDENT:** **----------------------------------------------------------------------------** **1. PRADEEP @ PRANAV KUMAR S/O.LATE NANDAKUMARAN NAIR, ELAVANKUZHI PUTHEN VEEDU VENCODE, CHERIYANKOLLA.P.O. THIRUVANANTHAPURAM DISTRICT. PIN-695 008.** ## **2. SHAIJU KUMAR** - **VELIKKAVILA PUTHEN VEEDU, PANCHAMOODU.P.O., VELLARADA THIRUVANANTHAPURAM DISTRICT. PIN-695 007.** **R1 BY ADV. SRI.G.SUDHEER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== M.A.C.A. No.829 of 2013 ==================================== Dated this the 26[th] day of July, 2013** ## **J U D G M E N T** This appeal arises from the award dated 31.12.2012 in O.P (MV) No.1954 of 2005 of the Motor Accidents Claims Tribunal, Neyyattinkara (for short, “the Tribunal”). The 1[st] respondent while riding a motor cycle belonging to the 2[nd] respondent on 07.09.2005 sustained injuries due to its capsize. According to the 1[st] respondent accident occurred when a dog abruptly strayed into the road and he had to apply the brake. He claimed compensation from the appellant and the 2[nd] respondent under Section 163A of the Motor Vehicles Act, 1988 (for short, “the Act”). 2. The appellant claimed that the accident occurred due to the negligence of the 1[st] respondent and hence claim under Sec.163A of the Act would not lie. It also contended that though it had issued a policy with respect to the vehicle involved it is not liable to indemnify the 2[nd] respondent and pay compensation to the 1[st] respondent. 3. The Tribunal accepted case of 1[st] respondent as regards cause of accident, assessed compensation payable at **M.A.C.A No.829 of 2013** -: 2 :- Rs.78,800/- and directed the appellant to pay the same with interest at the rate of 9% per annum. The appellant is aggrieved and has preferred this appeal. 4. Learned Senior Advocate for the appellant has contended that since the accident occurred due to the negligence of the 1[st] respondent, claim under Sec.163A of the Act is not maintainable. It is further contended that at any rate so far as there is no plea or evidence that the 1[st] respondent was employed by the 2[nd] respondent and since Ext.A14, policy of insurance did not cover risk of owner-insured, it is not liable to pay compensation to the 1[st] respondent or indemnify the 2[nd] respondent for the amount payable to the 1[st] respondent. Reliance is placed on the decision in **Oriental Insurance Co., Ltd. v. Shakunta** (2009 ACJ 220) and **Oriental Insurance Co. Ltd. v. Joseph** (2012 [2] KLT 132). It is lastly argued that compensation awarded is excessive. 5. Learned counsel for the 1[st] respondent supported the award. It is argued that written statement filed by the appellant does not contain necessary plea to avoid liability as now argued. 6. So far as the accident and its cause is concerned, **M.A.C.A No.829 of 2013** ## -: 3 :- decision of the Supreme Court in **National Insurance Company** **Ltd. v. Smitha** (2011 (4) KLT 821) shows that it is open to the opposite parties to defeat a claim under Section 163A of the Act on proving that accident occurred due to the wrongful act, neglect or default of the applicant or victim. That is followed by the Full Bench of this Court in **Oriental Insurance Co. Ltd. v. Joseph** (supra). 7. The 1[st] respondent has a case that he had to apply brake suddenly due to a dog straying into the road. In Exts.A1 and A2, copy of first information report and the final report (case was referred as mistake of fact) it is stated that accident occurred in the manner stated by the 1[st] respondent. This is not a case where there was a wrongful act, neglect or default on the part of the 1[st] respondent. So far as he is concerned it is a mere 'accident'. Hence claim under Sec.163A of the Act is maintainable. 8. So far as the liability of the appellant is concerned, the learned Senior Advocate contended that the 1[st] respondent cannot be treated as a 'third party' in relation to the motor cycle involved in the accident. It is also argued that the decision of this **M.A.C.A No.829 of 2013** -: 4 :- Court in **New India Insurance Co. Ltd. v. Radhika** (2009 [2] KLT 488) that he is a third party is overruled in **Oriental Insurance Co. Ltd. v. Joseph** (supra). Referring to the observations and findings in **Oriental Insurance Co. Ltd. v. Joseph** (supra) it is argued that in so far as the 1[st] respondent has no case that he was an employee of the 2[nd] respondent engaged in riding motor cycle, unless the owner of the motor cycle (2[nd] respondent) is covered by the policy of insurance, the 1[st] respondent is not entitled to get compensation from the appellant. According to the learned Senior Advocate, when the 1[st] respondent was riding the motor cycle with the consent of the 2[nd] respondent, he steps into the shoe of the 2[nd] respondent and occupies his position so far as the contract of insurance is concerned. It is pointed out that Ext.A14, policy does not cover liability for injury to the 2[nd] respondent-owner-insured and hence the 1[st] respondent is not entitled to get compensation from the appellant. 9. True that the observations and findings in **Oriental Insurance Co. Ltd. v. Joseph** (supra) and particularly as it overrules **New India Insurance Co. Ltd. v. Radhika** (supra) takes that view. But on going through the copy of written **M.A.C.A No.829 of 2013** -: 5 :- statement of the appellant given to me for perusal I find that there is no contention raised that the 2[nd] respondent-owner-insured was not covered by the policy of insurance. 10. Learned Senior Advocate for the appellant made an attempt to save the situation by contending that question whether the appellant is liable to indemnify the 2[nd] respondent for the loss caused to the 1[st] respondent is one of law which could be urged in the appeal even without a plea in the written statement. I am unable to appreciate that contention since the question whether the 2[nd] respondent-owner-insured is covered by the policy of insurance so far as injury to him is concerned, is not a question of law but a matter of contract between the 2[nd] respondent and the appellant. In so far as there is no plea to that effect, contention that the appellant is not liable to indemnify the 2[nd] respondent for loss caused to the 1[st] respondent and pay compensation to the 1[st] respondent cannot be accepted. 11. Last argument is concerning quantum of compensation awarded. It is pointed out that having regard to the age of 1[st] respondent, the multiplier to be adopted is only '17' and not '18'. Accepting that, compensation payable to the 1[st] respondent for disability comes to `61,200/- as against `64,800/- **M.A.C.A No.829 of 2013** -: 6 :- awarded. Thus there should be a deduction of `3,600/-. Compensation payable to the 1[st] respondent is fixed as `75,200/as against `78,800/-. To that extent the appeal has to succeed. Resultantly the appeal is allowed in part as under: In substitution of the award passed by the Motor Accident Claims Tribunal, Neyyattinkara in O.P(MV) No.1954 of 2005, award is passed as under: (i) The 1[st] respondent (petitioner in O.P(MV) No.1954 of 2005) is allowed to recover `75,200/- (Rupees Seventy five thousand and two hundred only) with interest at the rate of 9% per annum from 20.12.2005 till payment from the appellant and the 2[nd] respondent. (ii) The appellant is directed to deposit the said amount in the Tribunal within two months from this day. (iii) The direction issued by the Tribunal as regards withdrawal/deposit of the amount will remain in force. **M.A.C.A No.829 of 2013** -: 7 :- (iv) Parties shall suffer their costs. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv