The Oriental Insurance Co. Ltd. v. Sivarajan and the Hon'ble Motor Accidents Claims Tribunal, Pathanamthitta

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** ## **MONDAY, THE 21ST DAY OF MAY 2012/31ST VAISAKHA 1934** ## **WP(C).No. 14204 of 2006 (N)** **---------------------------** ## **PETITIONER :** **--------------------** **THE ORIENTAL INSURANCE CO.LTD., PUNALUR, REPRESENTED BY ITS ADMINISTRATIVE OFFICER REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18.** **BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)** **RESPONDENT(S):** **--------------------------** **1. SIVARAJAN, S/O. NEELAKANDAN, SOBHA NIVAS, ARUKALICKAL, PARAKODE P.O. EZHAMKULAM VILLAGE.** **2. HON'BLE MOTOR ACCIDENT CLAIMS TRIBUNAL,** **PATHANAMTHITTA.** **R1 BY ADV. SRI.ARUN.B.VARGHESE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/01/2012, THE COURT ON 21-05-2012 DELIVERED THE FOLLOWING:** ## **Mn** **...2/-** ## **WP(C).No. 14204 of 2006 (N)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** - **EXT.P1 : COPY OF THE CLAIM PETITION.** - **EXT.P2 : COPY OF THE FIR IN CRIME NO. 645/96 OF ADOOR POLICE STATION.** - **EXT.P2(a) : COPY OF THE FI STATEMENT GIVEN TO THE POLICE ON 4.11.1996 BY THE FIRST RESPONDENT.** - **EXT.P3 : COPY OF THE CHARGE SHEET FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE, ADOOR.** **EXT.P4 : COPY OF THE WOUND CERTIFICATE.** **EXT.P5 COPY OF THE AWARD IN OP(MV) NO. 210/97 OF MACT PATHANAMTHITTA.** ## **RESPONDENT'S EXHIBITS : NIL** **//TRUE COPY//** **P.S. TO JUDGE** **Mn** **P.N.RAVINDRAN, J. ----------------------------------------W.P(C).No.14204 of 2006 ----------------------------------------Dated this the 21[st] day of May, 2012** ## **JUDGMENT** The third respondent in O.P.(MV)No.210 of 1997 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta, has filed this writ petition challenging Ext.P5 award passed by the Motor Accidents Claims Tribunal to the extent it holds the petitioner liable to pay the compensation. The brief facts of the case are as follows: 2. The first respondent herein filed O.P.(MV)No.210 of 1997 in the Motor Accidents Claims Tribunal, Pathanamthitta, claiming the sum of Rs.15,000/- as compensation for the injuries alleged to have been sustained by him in a motor accident that took place at about 9.30 p.m., on 2.11.1996 as a result of the rash and negligent driving of the motor car bearing registration No.KRQ 8182 by its driver, the second respondent in the claim petition. He alleged that in the accident he sustained injuries and was taken for treatment to Government Hospital where he underwent treatment as an inpatient. In column 8 of Ext.P1 application it ## **W.P(C).No.14204 of 2006** -:2:- was alleged that the accident took place near Sobha Nivas (the claimant's residence). In respect of the very same accident, based on the information given by the claimant, Crime No.645 of 1996 of Adoor Police Station was registered on 4.11.1996 alleging commission of offences punishable under sections 447, 323 and 324 IPC. It was stated in the First Information Report, a copy of which is Ext.P2, that due to prior enmity the driver trespassed into the claimant's residence, manhandled him and thereafter proceeded to enter the car and drive it away, that the claimant thereupon obstructed the driver from driving the car away and that as a result thereof he sustained injuries. After investigation the Sub Inspector of Police, Adoor Police Station, filed Ext.P3 final report in the Court of the Judicial Magistrate of First Class, Adoor, narrating circumstances in which the claimant sustained injuries, namely that he was injured when he prevented the car from being driven out of his residential premises. 3. In the Motor Accidents Claims Tribunal the owner and the driver of the motor vehicle did not enter appearance and file a written statement. Consequently they were set ex parte. The insurer filed a written statement contending that the claimant did not sustain injuries in a motor accident, that the second **W.P(C).No.14204 of 2006** -:3:- respondent driver knowingly and willfully caused injuries on account of previous enmity and that the injuries were not caused when the motor vehicle was in use. Before the Motor Accidents Claims Tribunal the parties did not adduce oral evidence. A copy of the FIR in Crime lNo.645 of 1996, a copy of the scene mahazar, a copy of vehicle mahazar of KRQ 8182, a copy of charge sheet in Crime No.645 of 1996 and copy of accident register-cum-wound certificate issued from Community Health Centre, Adoor were produced and marked as Exts.A1 to A5. By Ext.P5 award passed on 25.1.2006, the Motor Accidents Claims Tribunal held that the claimant sustained injuries out of the use of the motor car driven by the second respondent, awarded the sum of Rs.5,000/- as compensation and directed the petitioner (the insurer) to deposit the said amount together with interest at 6% per annum from 28.2.1997. In this writ petition the petitioner challenges Ext.P5 award on the ground that the claimant did not sustain injuries in an accident arising out of the use of a motor vehicle, that there was no motor accident as alleged and that the claimant sustained injuries when the motor car was used to commit the offences punishable under sections 447, 323 and 324 IPC. It is contended that in such circumstances the Motor Accidents Claims Tribunal ## **W.P(C).No.14204 of 2006** -:4:- erred in holding that the claimant sustained injuries in a motor accident and awarding the sum of Rs.5,000/- as compensation. 4. I heard Sri.George Cherian, learned counsel appearing for the petitioner. Though the respondents have been served they have not chosen to enter appearance or file counter affidavit. Sri.George Cherian, learned counsel appearing for the petitioner, relying on Ext.P2 FIR, Ext.P2(a) First Information Statement and Ext.P3 charge sheet, contended that the claimant did not sustain injuries in a motor accident, that the motor car in the instant case was used to commit an offence and the claimant sustained injuries in the course of that transaction and therefore, the claim petition is not maintainable. The learned counsel for the petitioner contended relying on the decision of the Apex Court in _**Rita Devi v. New India Assurance Co. Ltd**_ ., 2000 (2) KLT 526 that in the instant case the injuries were caused by an act of felony committed by the driver of the car and the claimant did not sustain injuries in an accident arising out of the use of the vehicle and therefore, the claim petition is not maintainable. 5. I have considered the submissions made at the Bar by the learned counsel appearing for the petitioner. I have also gone through the pleadings and the materials on record. Shorn of ## **W.P(C).No.14204 of 2006** -:5:- details, the contention raised by the learned counsel appearing for the petitioner is that as the claimant did not sustain injuries in a motor accident, but sustained the injuries when he prevented the motor car from being driven out of his residential premises after the vehicle was used to commit an offence, the claim petition is not maintainable. In _**Rita Devi v. New India Assurance Co.**_ _**Ltd**_ ., (supra) the Apex Court considered the question whether the legal heirs of the driver of an autorickshaw, who was killed while in the course of employment as a driver after the vehicle of which he was the driver was stolen, are entitled to compensation. The Motor Accidents Claims Tribunal awarded the sum of Rs.2,81,500/- as compensation and directed the insurer to pay the said amount together with interest from the date of the application. The insurer carried the matter in appeal to the High Court of Gauhati. The High Court held that there was no motor accident, that the deceased did not die in a motor accident but was murdered and therefore, the claim petition was not maintainable. The High Court allowed the appeal and dismissed the claim petition. On appeal, the Apex Court held that the driver of the autorickshaw was duty bound to have accepted the demand of fare paying passengers to transport them to the place of their ## **W.P(C).No.14204 of 2006** -:6:- destination and if during the course of this duty, the passengers decided to commit an act of felony of stealing the autorickshaw and in the course of achieving the said object of stealing the autorickshaw, they had to eliminate the driver of the autorickshaw, then it cannot but be said that the death so caused to the driver of the autorickshaw was an accidental murder. It was held that stealing of the autorickshaw was the object of the felony and the murder that was caused in the said process of stealing the autorickshaw is only incidental to the act of stealing of the autorickshaw and therefore, on the facts and circumstances of the case it has to be said that the death of the deceased was caused accidentally in the process of committing the theft of the autorickshaw. The Apex Court further held that as the murder of the deceased was due to an accident arising out of the use of the motor vehicle, the claimants are entitled to compensation. Reliance was placed on an earlier decision of the Apex Court in _**Shivaji Dayanu Patil & another v. Vatschala Uttam More**_ , 1991 (3) SCC 530 to hold that the expression “arising out of the use of a motor vehicle” enlarges the field of protection made available to victims of motor accidents and is in consonance with the beneficial object underlying the enactment. ## **W.P(C).No.14204 of 2006** -:7:- 6. Section 140 of the Motor Vehicles Act, 1988 which corresponds to section 92A of the Motor Vehicles Act, 1939, stipulates that where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of the section. Section 163A of the Motor Vehicles Act, 1988 stipulates that notwithstanding anything contained in the Act or in any other law for the time being in force or instrument having force of the law, the owner of the motor vehicle of the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Section 165 of the Motor Vehicles Act stipulates that a State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, ## **W.P(C).No.14204 of 2006** ## -:8:- persons arising out of the use of motor vehicles or damage to any property of a third party so arising, or both. A Division Bench of this Court, after an exhaustive survey of the relevant statutory provisions and the case law on the point, held in _**New India Assurance Co. Ltd., v. Remya**_ , ILR 2011 (4) (Kerala) 744 that the expression “arising out of the use of vehicle” occurring in sections 140, 147, 163A and 165 of the Motor Vehicles Act must be read and understood in such a manner as to include all accidents connected in respect of the motor vehicles and that the expressing “arising out of the motor vehicle” in sub-section (1) of section 147 of the Motor Vehicles Act and its proviso and section 165 of the Motor Vehicles Act must cover all cases of accidents connected with the use of the motor vehicle. In the light of the binding decision of this Court in _**New India Assurance Co. Ltd., v. Remya**_ , and of the Apex Court in _**Shivaji Dayanu Patil & another v. Vatschala Uttam More**_ and _**Rita Devi v. New India Assurance Co. Ltd**_ ., I am of the opinion that the stand taken by the insurer cannot be sustained. It is evident from a reading of the FI Statement and the FIR that the claimant sustained injuries in an accident arising out of the use of the motor vehicle, which according to the claimant, was used to ## **W.P(C).No.14204 of 2006** -:9:- commit a criminal offence. The contention that the accident in the instant case did not arise out of the use of the motor vehicle and therefore, the claimant is not entitled to compensation, does not in my opinion merit acceptance. I accordingly hold that there is no merit in the challenge to the impugned award. The writ petition fails and is dismissed. No costs. **P.N.RAVINDRAN, Judge.** **ahg.** **P.N.RAVINDRAN, J. --------------------------W.P(C).No.14204 of 2006 ----------------------------** ## **JUDGMENT** **21[st] May, 2012**