United India Insurance Company Limited v. Fr. Joseph Pulinthanam, Provincial Superior (CST), St. Thomas Bhavan, Chelavoor; The New India Assurance Company Limited; The Manager, Little Flower Boys Home (MACA No.1064 of 2012)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 8TH DAY OF NOVEMBER 2017 / 17TH KARTHIKA, 1939** **MACA.NO. 1064 OF 2012** **-------------------** **AGAINST THE AWARD IN O.P.(M.V.) NO.607/2005 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPPALAM DATED 08-11-2010** **----------------------------** **APPELLANT(S)/4[TH] RESPONDENT :** **---------------------------** **UNITED INDIA INSURANCE COMPANY LIMITED, MANNARKKAD, NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE,”SHARANYA”, HOSPITAL ROAD, KOCHI-11.** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT(S)/PETITIONER & RESPONDENTS 1 TO 3 :** **---------------------------------------------** **1. FR.JOSEPH PULINTHANAM, PROVINCIAL SUPERIOR (CST), ST. THOMAS BHAVAN, CHELAVOOR P.O., CALICUT, PIN-673315.** **2. ABDUL KAREEM, S/O IBRAHIM, KOTTAPARAMBIL HOUSE, KOLATHOOR P.O.,PERUNTHALMANNA, MALAPPURAM DISTRICT,PIN-682511.** **3. THE NEW INDIA ASSURANCE COMPANY LIMITED, PERINCHERRY BUILDING, ROUND NORTH, THRISSUR, PIN-680603.** **4. THE MANAGER, LITTLE FLOWER BOYS HOME, JELLIPARA P.O., AGALI, MANNARKKAD, PIN-679328.** **R1 BY ADV. SRI.RAJAN P.KALIYATH** **R2 BY ADVS. SRI.K.C.ELDHO** **SRI.JIJO THOMAS SRI.ANESH PAUL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **C.R.** ## **P.D. RAJAN, J.** **-----------------------M.A.C.A. No.1064 of 2012 ---------------------------------Dated this the 8[th] day of November, 2017** ## **J U D G M E N T** The question raised in this appeal is whether the legal representative of the deceased Fr.Sibi Embrayil, is entitled to get any compensation under Sec.163A of the Motor Vehicles Act, 1988? The Provincial Superior (CST) who is the legal representative of the deceased Fr.Sibi Embrayil preferred O.P.(M.V.) No.607 of 2005 before the Motor Accidents Claims Tribunal (for short, MACT), Ottappalam under Sec.163A of the Motor Vehicles Act 1988 ( for short, M.V. Act 1988) and the learned tribunal awarded compensation of Rs.1,17,000/- with interest and cost and directed the insurer of both vehicles to satisfy the award. Being aggrieved by that, the insurer of the motorcycle preferred this appeal. 2. Brief facts of the case in the lower court was that on 30.12.2004 at 9.50 a.m., Fr. Sibi Embrayil was riding a motorcycle along Palakkad-Kozhikode public road and when he reached at Nottamala, a bus, M.A.C.A. No.1064 of 2012 2 KL-1/U-2898 driven in a rash and negligent manner, hit against the motorcycle, as a result, the deceased succumbed to the injuries on the spot itself. The accident was due to the rash and negligent driving of the bus by its driver. The owner and the insurer of the motorcycle contested the matter. The pillion rider of the motorcycle also sustained serious injuries in the accident and he died at the spot itself. The legal representative of the pillion rider preferred O.P.(M.V.) No.602/2005 before the M.A.C.T. Ottapalam and both cases were tried separately. The claimant in O.P.(M.V.) No.607 of 2005 was examined as PW1 and his documents were marked as Exts.A1 to A7. Respondent's documents were marked as Exts.B1 and B2. 3. Heard Adv. Mathew Jacob, the learned Counsel appearing for the appellant and Adv. Rajan P.Kaliath, the learned Counsel appearing for the 3[rd] respondent insurance company. 4. The strict liability for claims due to accidents arising out of the use of motor vehicles is provided under structured formula under Section 163A of Motor Vehicles ## M.A.C.A. No.1064 of 2012 3 Act to the legal heirs of the deceased and to the injured. The ready reckoner table introduced for arriving at the compensation based on income upto forty thousand and for non earning victims, for expeditious award without considering the proof of negligence, which is the fundamental principle in law of torts. It also ensure medical expenses, loss of estate and other pecuniary losses. But the provision under Sec.166 of the Motor Vehicles Act, 1988 is an exclusive provision for just compensation to the legal representatives, legal heirs and injured on the basis of fault liability. 5. **Sec.163(A) (B) & 166** of the Motor Vehicles Act reads as follows: **163A. Special provision as to payment of compensation on structured formula basis.** -(1) Notwithstanding anything contained in this Act or in any other law for the time being inforce or instrument having the force of law, the owner of the motor vehicle or the authorized 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. Explanation.- For the purposes of this sub-section, M.A.C.A. No.1064 of 2012 4 “ permanent disability” shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923). (2) In any claim for compensation under Sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.] **163B. Option to file claim in certain cases.-** Where a person is entitled to claim compensation under section 140 and section 163A, he shall file the claim under either of the said sections and not under both. **166. Application for compensation.** -(1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made- (a) by the person who has sustained the injury; or - (b) by the owner of the property; or - (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorized by the person injured or all or any of the legal representatives of the deceased, as the case may be: Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so M.A.C.A. No.1064 of 2012 5 joined, shall be impleaded as respondents to the application. (2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed: Provided that where no claim for compensation under section 140 is made in such application, the application contain a separate statement to that effect immediately before the signature of the applicant. 3[***] 4. The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act. 6. A reading of Section 163A shows that the legal heirs or the victim can claim compensation in case of death and for permanent disability as indicated in the 2[nd] Schedule due to the accident arising out of the use of a motor vehicle. The explanation shows that permanent disability shall have the same meaning and extent as in the Workmen's Compensation Act, 1923. According to Sec.163(b) when a person is entitled to claim ## M.A.C.A. No.1064 of 2012 6 compensation under Sec.140 and under Sec.163A, he shall file claim under either of the sub-section and not under both. The bar provided under Section 163(b) shows that there cannot be simultaneous claim under Section 140 and Section 163A or under Section 166 and under Sec.163A of the M.V. Act, 1988. Under Sec.166 of the M.V. Act, the application for compensation arising out of an accident of the nature specified in Sub-section 1 of Section 166 of the M.V. Act, may be preferred by the person, who sustained injuries or by the owner of the property or where the death has resulted from the accident, all or any of the legal representative of the deceased or by any agent duly authorized by the person injured, all or any of the legal representative of the deceased as the case may be. 7. Now the question is whether the 1[st] respondent in this appeal is the legal heir or legal representative of the deceased Fr. Sibi Embrayil. This Court in **Oriental Insurance Co. Ltd.** v. **Mother Superior S.H. Convent 1994 (1) KLT 868** held that M.A.C.A. No.1064 of 2012 7 ' the Mother Superior of a Holy Order of Catholic Nuns is the legal representative of the deceased nun, of that congregation- Mother Superior being the head of the convent is entitled to claim compensation on account of the death of a nun'. Paragraph 7 and 9 read as follows: 7. The deceased joined the Holy Order of the Sacred Heart Congregation after renouncing her natural family. As soon as she professed the perpectual vow she ceased to be a member of her natural family and became a member of The Holy Order she had embraced a life of poverty, chastity and obedience. The convent became her family and the Mother Superior became the head of the family as well as her legal representative. All her income by way of her salary and other benefits will devolve on the convent, of which the Mother Superior is the Administrator. Therefore, the Mother Superior being the head of the convent is entitled to claim compensation on account of the death of the deceased. 8.xxx 9. Therefore, even though the deceased continued to be an Indian Christian as defined under S.2(d) of the Succession Act, because of her civil death by becoming a member of the Holy Order the natural heirs mentioned in Ss.41 to 48 of the Succession Act will not be her legal heirs. If she had made a will it was to take effect at once as though she were naturally dead. So also if one of her kinsman dies leaving properties which according to-ordinary rules of inheritance would descend to her, she will be M.A.C.A. No.1064 of 2012 8 overlooked as though she were no longer alive. Entering religious orders resulted in the eyes of the Church in death to the world. From the time of her entrance into the Holy Order she could not acquire anything and she acted only as a means of receiving for the benefit of the Holy Order. By becoming a member of the Holy Order she becomes a member of the family consisting of the Mother Superior and other members of that Holy Order. Therefore, the contention of the learned counsel for the appellant that in view of S.29(2) of the Indian Succession Act, Ss.41 to 48 of the said Act should apply in this case also, cannot be accepted. The 1[st] respondent in this appeal is the Provincial Superior (CST), St. Thomas Bhavan, Chelavoor who is claimed as the legal representative of the deceased Fr.Sibi Embrayil. 8. A Division Bench of this Court in **Kadeeja and Others Vs. Managing Director, KSRTC, TVM and Another 2014 ACJ 1492** held that; There is wide difference in the words used in Sections 163A and 166 regarding the persons entitled to apply for compensation in the case of death of a person who died in a Motor Vehicle Accident. Under Section 163A, the persons entitled to claim compensation are the legal heirs of the deceased and under Section 166, the persons entitled to claim ## M.A.C.A. No.1064 of 2012 9 compensation are the legal representatives of the deceased-- Legal representatives include legal heirs as well and not vice versa. 9. A Full Bench of this Court in **Rajan v. Biju and others 2017 ACJ 1897** held that under section 163A the legal heirs are entitled to file a claim petition for the death of a person and not his legal representatives. The learned tribunal failed to consider that point and awarded compensation. Hence, the award of the Motor Accidents Claims Tribunal, Ottappalam in O.P.(M.V.) No.607 of 2005 is set aside and the matter is remitted to the trial court for fresh consideration. The learned tribunal is directed to ascertain whether Fr. Joseph Pulinthanam, Provincial Superior (CST), St. Thomas Bhavan, Chelavoor is the legal heir of the deceased and dispose of the case as per law. Both parties are directed to appear before the Motor Accidents Claims Tribunal, Ottappalam on 14.03.2018. This M.A.C.A. is disposed of as above. Sd/- **P.D. RAJAN, JUDGE** NS