The Regional Manager United India Insurance Co. Ltd v. Saraswathi Sukumaran & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 25[TH] DAY OF SEPTEMBER 2023 / 3RD ASWINA, 1945** **MACA NO. 1405 OF 2008** **AGAINST THE ORDER/JUDGMENT OPMV 1182/1999 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA / I ADDL.** ## **M.A.C.T.** ## **APPELLANT/5TH RESPONDENT IN OP(MV):** THE REGIONAL MANAGER UNITED INDIA INSURANCE CO.LTD, PATNA, REPRESENTED BY THE, ASST.MANAGER, UNITED INDIA INSURANCE CO.LTD,, REGIONAL OFFICE, HOSPITAL ROAD, ERNAKULAM. BY ADVS. SRI.M.A.GEORGE SMT.DEEPA GEORGE ## **RESPONDENTS/RESPONDENT NO 1 IN OP(MV):** 1 SARASWATHI SUKUMARAN SARASWATHI NILAYAM, KURAMPAKAARA P.O, ADOOR TALUK, PATHANAMTHITTA DIST, KERALA STATE. 2 SINDHU DO.LATE.K.K.SUKUMARAN -DO-DO-. 3 SANDHYA DO.LATE K.K.SUKUMARAN -DO- -DO-. 4 BALDOV SINGH SO.UNDH SINGH BAPROR POLICE CIRCLE, RAMPURA, PATIALA DISTRICT,, PUNJAB. 5 UBDDRAJIT SINGH SO.NARENDRA SINGH 114/1, CHARKHI MOHALLA, AMBALA CIRCLE, MOHALLA,, AMBALA CIRCLE, PUNJAB STATE. 6 RAKESH KUMAR SINGH SO.RAMAKANT UZND SINGH, MARANCHI P.O, PATNA DISTRICT. 7 DINANATH PASWAN SO.SIYA PASWAN MARANCHY, AND POLICE STATION, PATNA DISTRICT,, BIHAR. BY ADVS. SRI.SAJJU.S SRI. K.SHAJ ## **OTHER PRESENT:** ADV KEVIN JAMES- R1-R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 M.A.C.A No. 1405 of 2008 ## **JUDGMENT** This is an appeal submitted by the 5[th] respondent/Insurance Company in O.P.(M.V) No. 1182/1999 passed by the Motor Accidents Claims Tribunal, Pathanamthitta. The aforesaid claim petition was submitted by respondents 1 to 3 herein, seeking compensation for the death of one K.K.Sukumaran, who died in a motor accident that occurred on 27.10.1998 at Mor Village in the State of Bihar. 2. According to the claimants, the accident occurred when the deceased Sukumaran was travelling with two other persons in a jeep bearing registration No.BPL/6382 it was hit by a truck bearing registration No.HR-37/3594. Initially, the claim was submitted under Section 166 of the Motor Vehicles Act, 1988, but later, the claim was amended by converting it into a claim petition under Section 163A of the Motor Vehicles Act. According to the claimants, the deceased was aged 52 years at the time of the accident and was earning a monthly salary of Rs.3,000/- as the storekeeper in a company named M/s.Gamon India Ltd., in Bihar. The jeep in which the deceased was 3 ## M.A.C.A No. 1405 of 2008 travelling was being driven by the 7[th] respondent herein and was insured with the appellant. The 3rd respondent owned the said jeep. The lorry was being driven by the 1[st] respondent, and it was owned by the 2[nd] respondent in the claim petition. The Respondents Nos.1 to 4 in the claim petition, who are respondents 4 to 7 in this appeal, remain absent, and they were set exparte. The appellant/ 5[th] respondent alone filed a written statement contending that the policy was issued for a private car and the same was only an 'Act Policy'. According to the appellant, the said policy did not cover the gratuitous passenger in the vehicle and the deceased being a gratuitous passenger, they are not liable to indemnify the owner of the jeep. It was also contended that the accident occurred due to the negligent driving of the truck by the 1[st] respondent in the claim petition. The quantum of compensation was also seriously disputed by them. 3. The evidence in this case consists of Exts.A1 to A5 from the side of the claimants. Ext.B1, a certified copy of the policy certificate, was produced from the side of the appellant. After appreciating the materials placed on record, the Tribunal 4 ## M.A.C.A No. 1405 of 2008 found that respondents 2, 3 and 5, who are respondents 5, 6 and the appellant herein, were jointly and severally liable to pay the compensation. The quantum of compensation was fixed as Rs.2,73,500/- and the appellant herein, being the insurer of the jeep, was directed to deposit the said amount with interest at the rate of 9% per annum from the date of petition till realisation with a cost of Rs.3000/-. This appeal is submitted by the 5[th] respondent/Insurance Company challenging the aforesaid award. 4. Heard, Smt. Deepa George, the learned counsel appearing for the appellant and Sri.Kevin James, the learned counsel appearing for the respondent Nos.1 to 3/claimants. 5. The crucial contention raised by the learned counsel for the appellant is that the Tribunal could not have directed the appellant to deposit the compensation. According to them, the policy issued in this case was an “Act Only” policy which did not cover the risks of the gratuitous passenger. Ext.B1 policy was relied on to substantiate the said contentions. However, it is seen from the award that the Tribunal rejected the said contention by observing that, in Ext.B1 policy, it has not been 5 ## M.A.C.A No. 1405 of 2008 specified that it was an “Act Only” policy, and the vehicle was also not seen mentioned as a private vehicle. The learned counsel for the appellant contended that in Ext.B1 certificate, it is mentioned that it is a policy 'Act Only', which would indicate that it is only a third party policy. However, the crucial aspect to be noticed is that, even if that contention is accepted, as there is an endorsement to the effect that the policy is “Act Only” on the top of Ext.B1, there is absolutely no mention therein, as to the specification of the vehicle involved. 6. I have carefully gone through the other documents produced as well. Ext.A1 is the F.I.R, and Ext.A2 is the final report submitted in the crime registered by the Police. However, in both these documents, there is absolutely no mention of the category of the said vehicle. Evidently, in Ext.B1, it is mentioned that the seating capacity of the vehicle is 10+1. It was a Mahindra Jeep. Therefore, in the absence of anything to indicate that the vehicle in question was a private vehicle and it was registered and insured as such, the contention put forward by the learned counsel for the insurance company cannot be accepted. If it is a commercial vehicle, a passenger carried in 6 M.A.C.A No. 1405 of 2008 the said vehicle would also come under the coverage of an Act Only policy. In this case, in the absence of any documents indicating that it was a private vehicle, a different conclusion than taken by the Tribunal cannot be arrived. 7. At this juncture, the learned counsel for the appellant made available a photocopy of the policy schedule. Of course, it is true that there is a handwritten endorsement in the said document that it was for private use. However, the said document is not seen produced along with the records. Therefore, a copy of the said document cannot be relied on at this juncture to take a different view. The claim petition was filed in the year 1999, the award was passed on 09.01.2008, and the appeal was filed in 2008. Therefore, it is not proper for this Court to accept the said document for the purpose of adjudicating the question involved in the said case. Moreover, what was made available was only a photocopy, which cannot be accepted as well. Therefore, I am of the view that, as regards the question of coverage of policy, no interference is required. 8. Another contention put forward by the learned counsel for the appellant is that the claim was initially submitted 7 ## M.A.C.A No. 1405 of 2008 under Section 166 of the Motor Vehicles Act and later amended as a claim petition under Section 163A of the Motor Vehicles Act. It was pointed out that in the light of the decision relied on by **Deepal Girishbhai Soni And Ors vs United India Insurance Co. Ltd [2004 (5) SCC 385],** no such amendment could have been permitted. However, it is seen that the appellant has not challenged the said amendment at any point of time during the pendency of the claim petition or in the appeal. The said amendment took place while the application was pending consideration before the Tribunal, and thereafter, an award was passed in the year 2008. Therefore, raising such a contention at this stage, even without any corresponding grounds in the appeal, cannot be permitted. 9. The next contention raised by the learned counsel for the appellant is with regard to the amount fixed as compensation. It was pointed out that since it is a case of death, the amount as specified in the second schedule of the Motor Vehicles Act as such should have been taken, and after deducting the 1/3 of thereof, the amount to be paid under the head of loss of dependency could have been determined. In this 8 ## M.A.C.A No. 1405 of 2008 case, instead of adopting the said method, the multiplier method has been adopted, which is erroneous. I find some force in the contention put forward by the learned counsel for the appellant in this regard. The deceased was a person aged 52 years and, therefore, comes under the age group of 50-55. The monthly income is Rs.3,000/-. Therefore, he would come under the category of annual income of Rs.36,000/- and the amount fixed as per the second schedule is Rs.3,60,000/-. After deducting 1/3 of the same, the amount for loss of dependency would come to Rs.2,40,000/-. In this case, it is discernible from the award that the amount awarded under this head is Rs. 2,64,000/-. Therefore, it is revised accordingly. The compensation awarded under the other heads is as per the specifications in the second schedule, and therefore, no interference is warranted. In the light of the above, the amount of compensation is revised as Rs.2,49,500/- instead of Rs.2,73,500/- as determined by the Tribunal. 10. Another contention put forward by the learned counsel for the appellant is with regard to the right for recovery from the owner and driver of the truck involved in the accident. 9 ## M.A.C.A No. 1405 of 2008 It was pointed out that, as per the final report submitted by the Police, the driver of the truck was held responsible for the accident. Since the question of negligence is not a matter to be considered in a proceeding under Section 163(A) of the Motor Vehicles Act, they are entitled to get the amount ought to have been apportioned between the owner of the vehicle and the appellant in equal proportions. However, It is seen from the records that no such challenge has been raised in this regard with respect to the same. Therefore, I am of the view that the same also cannot be considered in this case. However, it is clarified that it shall be open for the Insurance Company to initiate appropriate proceedings against the said respondent after satisfying the award. 11. Another ground raised by the learned counsel for the appellant is with regard to the rate of interest. It was pointed out that the Tribunal has awarded 9% interest, which is on the higher side. After considering all the relevant aspects, I deem it appropriate to fix the same as 8% per annum. In the result, this appeal is allowed in part, by revising the quantum of compensation as Rs.2,49,500/- (Rupees two lakhs, 10 M.A.C.A No. 1405 of 2008 forty nine thousand and five hundred only) and the appellant/Insurance Company is directed to deposit the said amount along with interest at the rate of 8% per annum from the date of petition till realisation within a period of three months from the date of receipt of a copy of this judgment after adjusting the amounts already deposited by the appellant. Sd/- **ZIYAD RAHMAN A.A JUDGE** rpk