Kerala High Court
Abraham Varkey vs Abraham Varkey on 1 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942
MACA.No.1457 OF 2009
AGAINST THE AWARD IN OPMV 1050/2005 DATED 16-05-2008 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM
APPELLANT/1ST RESPONDENT:
ABRAHAM VARKEY
PODIPARA (H)
KATTHOTTI P.O.,
AYYAPPAN KAVIL, IDUKKI.
BY ADV. SRI.ABRAHAM GEORGE JACOB
RESPONDENTS/PETITIONERS AND 2ND RESPONDENT:
1 ALEXANDER DEVASIA
PUTHUPARAMBIL (H)
KOTTAMURI P.O.,
THRIKKODITHANAM KARA,,
THRIKKODITHANAM VILLAGE,
KOTTAYAM DISTRICT.
2 THRESIAMMA ALEXANDER -DO- -DO- -DO-
3 KUNJUMOL VARGHESE @ MARIAKUTTY
KOCHUPARAMBIL, TOTTACKADU KARA,,
THOTTACKADU VILLAGE,
KOTTAYAM DISTRICT.
4 ANTONY P.A. @ JOYCHAYAN
PUTHUPARAMBIL (H),
KOTTAMURI P.O.,,
THRIKKODITHANAM KARA,
THRIKKODITHANAM VILLAGE,,
KOTTAYAM DISTRICT.
5 ELSAMMA
CHOODAMANNIL (H)
THOTTACKADU VILLAGE,
KOTTAYAM DISTRICT.
M.A.C.A. No. 1457/2009 &
M.A.C.A. No. 2378/2008
2
6 GIJI MATHEW @LEELAMMA GIGIMOL
PULLAPPALLIYIL (H),
SOUTH PAMPADY P.O.,,
PAMPADY VILLAGE,
KOTTAYAM DISTRICT.
7 LEENA BOBAN
BOBAN VILLA
KUTTOOR P.O., THIRUVALLA,,
PATHANAMTHITTA DISTRICT.
8 THE NEW INDIA ASSURANCE COMPANY LTD.
IDUKKI.
R1 BY ADV. SRI.K.A.HASHIM
R1 BY ADV. SRI.N.S.MOHAMMED USMAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 01.03.2021, ALONG WITH MACA.2378/2008, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
M.A.C.A. No. 1457/2009 &
M.A.C.A. No. 2378/2008
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942
MACA.No.2378 OF 2008
AGAINST THE AWARD IN OPMV 1050/2005 DATED 16-05-2008 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM
APPELLANT/S:
1 ALEXANDER DEVASIA
PUTHUPARAMBIL HOUSE,
KOTTAMURI P.O.,
THRIKODITHANAM KARA VILLAGE.
2 THRESIAMMA ALEXANDER
DO
3 KUNJUMOL VARGHESE @MARIAKUTTY
KOCHUPARAMBIL,
THOTTACKADU KARA, DO VILLAGE.
4 ANTONY [email protected] PUTHUPARAMBIL
KOTTAMURI P.O.,
THRIKKODITHANAM KARA DO VILLAGE.
5 ELSAMMA
CHOONDAMANNIL HOUSE
THOTTACKODU VILLAGE.
6 GIJI MATHEW @LEELAMMA GIGIMOL
PULLAPPALLIYIL HOUSE,
SOUTH PAMPADI P.O.,,
PAMPADI VILLAGE.
7 LEENA BOBAN
BOBAN VILLA
KUTTOOR P.O.,
THIRUVALLA,PATHANAMTHITTA.
BY ADV. SRI.K.A.HASHIM
M.A.C.A. No. 1457/2009 &
M.A.C.A. No. 2378/2008
4
RESPONDENT/S:
1 ABRAHAM VARKEY
PADIPARA HOUSE,
KATTHOTTI P.O.,
AYYAPPAN KOVIL,, IDUKKI.
2 THE NEW INDIA ASSURANCE CO. LTD
IDUKKI.
R1 BY ADV. SRI.ABRAHAM GEORGE JACOB
R1 BY ADV. SRI.N.S.MOHAMMED USMAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 01.03.2021, ALONG WITH MACA.1457/2009, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
M.A.C.A. No. 1457/2009 &
M.A.C.A. No. 2378/2008
5
P.V.KUNHIKRISHNAN, J
---------------------------------------
M.A.C.A. No. 1457 of 2009
&
M.A.C.A. No. 2378 of 2008
------------------------------------------
Dated this the 1st day of March 2021
JUDGMENT
The above captioned appeals are filed challenging the
same award in O.P.(M.V).No.1050/2005 of the Motor
Accidents Claims Tribunal, Kottayam. M.A.C.A.No.
2378/2008 is filed by the claimants and M.A.C.A. No.
1457/2009 is filed by the 1st respondent, owner of the
vehicle involved in the case. Since these two appeals are
connected, I dispose these two appeals by a common
judgment. (Hereinafter the parties are mentioned in
accordance to their rank before the Tribunal)
2. The brief facts are like this:- On 07.12.2003, at
about 11.a.m, the deceased was riding a motor cycle
bearing registration No. KL.6A-2524 owned by the 1 st
respondent from Kunnumpuram to Thengana. It is the case
of the petitioner that the rider lost the balance of the
M.A.C.A. No. 1457/2009 &
M.A.C.A. No. 2378/2008
vehicle and thereby the vehicle hit on an electric post and
the rider sustained fatal injuries. Though, immediately he
was taken to hospital, he succumbed to the injuries.
Hence, the claim petition is filed under Section 163A of the
Motor Vehicle Act for granting of compensation on account
of death of the Thomas @ Gojimon, who was a painter and
getting a monthly income of Rs. 3,000/-.
3. Exhibit A1 to A5 were marked on the side of the
claimants and Exhibit B1 is the policy certificate of the
vehicle involved in this case. After going through the
documents and pleadings, the claim petition was allowed
and an award was passed directing the 1st respondent to
pay a compensation of Rs. 54,500/- with interest at the rate
of 7% p.a., from the date of petition. The 2 nd respondent
was exonerated from payment of compensation, because it
was an Act Only policy. Aggrieved by the above award, the
claimants and the 1st respondent filed these appeals.
4. The learned counsel for the 1 st respondent/appellant
in M.A.C.A. No. 1457/2009 submitted that in the light of
the judgment of the Apex Court in Ningamma and
M.A.C.A. No. 1457/2009 &
M.A.C.A. No. 2378/2008
Another v. United India Insurance Company Ltd.
[2009 KHC 5046], the claim petition itself is not
maintainable under Section 163A. The relevant portion of
the judgment is extracted herein:-
"18. In the case of Oriental
Insurance Company Ltd. v. Rajini Devi and
Others, 2008(5)SCC 736, wherein one of us,
namely, Hon'ble Justice S.B. Sinha is a
party, it has been categorically held that in
a case where third party is involved, the
liability of the insurance company would
be unlimited. It was also held in the said
decision that where, however,
compensation is claimed for the death of
the owner or another passenger of the
vehicle, the contract of insurance being
governed by the contract qua contract, the
claim of the claimant against the insurance
company would depend upon the terms
thereof. It was held in the said decision
that S. 163A of the Motor Vehicle Act
cannot be said to have any application in
respect of an accident wherein the owner
of the motor vehicle himself is involved.
The decision further held that the question
M.A.C.A. No. 1457/2009 &
M.A.C.A. No. 2378/2008
is no longer resintegra. The liability under
Section. 163A of the MVA is on the owner of
the vehicle. So a person cannot be both, a
claimant as also a recipient, with respect
to claim. Therefore, the heirs of the
deceased could not have maintained a
claim in terms of Section 163A of the MVA.
In our considered opinion, the ratio of the
aforesaid decision is clearly applicable to
the facts of the present case. In the
present case, the deceased was not the
owner of the the motorbike in question.
He borrowed the said motorbike from its
real owner. The deceased cannot be held
to be employee of the owner of the
motorbike although he was authorised to
drive the said vehicle by its owner, and
therefore, he would step into the shoes of
the owner of the motorbike.
19. We have already extracted S.163A
of the Motor Vehicle Act herein before. A
bare perusal of the said provision would
make it explicitly clear that persons like
the deceased in the present case would
step into the shoes of the owner of the
vehicle. In a case wherein the victim died
M.A.C.A. No. 1457/2009 &
M.A.C.A. No. 2378/2008
or where he was permanently disabled due
to an accident arising out of the aforesaid
motor vehicle in that event the liability to
make payment of the compensation is on
the insurance company or the owner, as
the case may be as provided under Section
163A. But if it is proved that the driver is
the owner of the motor vehicle, in that
case the owner could not himself be a
recipient of compensation as the liability
to pay the same is on him. This
proposition is absolutely clear on a reading
of S.163A of the MVA. Accordingly, the
legal representatives of the deceased who
have stepped into the shoes of the owner
of the motor vehicle could not have
claimed compensation under S. 163-A of
the MVA."
4. The admitted case is that the deceased took the
vehicle from the 1st respondent and hit the vehicle on an
electric post. In the above judgment, the Apex Court held
that the person like deceased in the present case are
persons who have to step into the shoes of the owner of the
vehicle. In a case where the victim died or he was
M.A.C.A. No. 1457/2009 &
M.A.C.A. No. 2378/2008
permanently disabled due to an accident arising out of the
aforesaid motor vehicle, in that event the liability to make
payment of the compensation is on the insurance company
or the owner as the case may be as provided under section
163A. But, if it is proved that the driver is the owner of the
motor vehicle, in that case, the owner could not himself be
a recipient of compensation as the liability to pay the same
is on him. The legal representative of the deceased, who
have stepped into the shoes of the owner of the motor
vehicle could not have claim compensation under Section
163A of the Motor Vehicle Act in the light of the above
principle laid down in the above decision. In the light of
the above decision, the claim petition under Section 163A
of Motor Vehicle is not maintainable. Therefore, the
Tribunal erred in entertaining the claim petition itself.
Therefore, the impugned award is liable to be set aside.
5. At this stage, the learned counsel for the appellants
in M.A.C.A No. 2378/2008 submitted that as per Exhibit B1
policy, an amount of Rs. 50/- is paid as premium towards
compulsory personal accident claim to the owner.
M.A.C.A. No. 1457/2009 &
M.A.C.A. No. 2378/2008
Therefore, the appellants are entitled atleast that amount.
The learned counsel also relied on the judgment of the
Apex Court in Ramkhiladi and Another v. United India
Insurance Company and Another [2020 (1) KHC SN
arguments of the learned counsel. Admittedly additional
premium is paid for personal accident as evident from
Exhibit B1 certificate. If that is the case, the appellant is
entitled an amount of Rs. 1,00,000/- towards personal
accident claim to the owner of the vehicle as per Exhibit B1
certificate. The 2nd respondent is Liable to pay the said
amount.
Therefore these appeals are disposed of in the
following manner.:-
(i) M.A.C.A No. 1457/2009 is allowed and the
impugned award is set aside.
(ii) M.A.C.A. No. 2378/2008 is allowed in part. The
2nd respondent will pay a sum of Rs. 1,00,00/- (Rupees
One Lakh Only) to the appellants towards personal
accident claim to the owner, as per Exhibit B1 policy,
for which the premium is paid.
M.A.C.A. No. 1457/2009 &
M.A.C.A. No. 2378/2008
(iii) The amount deposited by the appellants in
M.A.C.A. No. 1457/2009 will be disbursed to the
appellants.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
avs
