The New India Assurance Co.Ltd vs The New India Assurance Co.Ltd
2021 Latest Caselaw 9035 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

           THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

    THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942

                        MACA.No.737 OF 2012

    AGAINST THE AWARD IN OPMV 947/2010 OF IST ADDITIONAL MOTOR
               ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE


APPELLANT/3RD RESPONDENT:

             THE NEW INDIA ASSURANCE CO.LTD.
             KOZHIKODE NOW REPRESENTED BY ITS MANAGER,REGIONAL
             OFFICE, M.G.ROAD, KOCHI - 11.

             BY ADVS.
             SRI.MATHEWS JACOB (SR.)
             SRI.P.JACOB MATHEW

RESPONDENTS/PETITIONERS:

      1      GEETHA
             W/O.LATE JAGAJEEVAN, GEETHAM VALIYA KARIPPAL
             NILAM,KARUVISSERY P.O., KOZHIKODE. PIN - 673 315.

      2      RESHMA
             D/O.LATE JAGAJEEVAN, GEETHAM VALIYA KARIPPAL
             NILAM,KARUVISSERY P.O., KOZHIKODE, PIN - 673 315.

      3      INDU
             D/O.LATE JAGAJEEVAN, GEETHAM VALIYA KARIPPAL
             NILAM,KARUVISSERY P.O., KOZHIKODE. PIN - 673 315.

      4      LAKSHMI
             W/O.SAMI, GEETHAM VALIYA KARIPPAL NILAM,KARUVISSERY
             P.O., KOZHIKODE. PIN - 673 315.

             R1 BY ADV. SMT.K.V.RESHMI

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
18.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA.No.737 OF 2012



                                       2




                        P.V.KUNHIKRISHNAN, J
                     --------------------------------
                        M.A.C.A.No.737 of 2012
                      -------------------------------
                Dated this the 18th day of March, 2021


                               JUDGMENT

This appeal is filed by the third respondent in O.P.(MV) No.

947/2010 on the file of the I Additional Motor Accidents Claims

Tribunal/I Additional District Judge, Kozhikode. The claim

petition was filed originally under Section 166 of the Motor

Vehicles Act 1988. Subsequently, it was converted to a claim

under Section 163-A of the Motor Vehicles Act, 1988.

(Hereinafter, the parties are referred to their rank before the

Tribunal).

2. The short facts of the case are like this :While the

deceased was riding a motor cycle bearing registration No. KL-

11/D 4498 from Karuvissery to Kozhikode and when it reached

near Eranhippalam, it was hit by a KSRTC Bus bearing

registration No.KL-15/7113 came from Wayanad side in an MACA.No.737 OF 2012

exorbitant speed and in that accident, Jagajeevan sustained

serious injuries and he was taken to the hospital but

subsequently, he succumbed to the injuries. Hence the claim

petition was filed.

3. To substantiate the case, Exts.A1 to A6 were marked

on the side of the petitioners. PW1 is also examined on the side

of the claimants. One witness was examined on the side of the

respondents as RW1. Exts.B1 to B5 are the documents marked

on the side of the respondents. After going through the evidence

and documents, the Tribunal found that the claimants are entitled

an amount of Rs.2,00,170/- with interest at the rate of 8% per

annum from the date of filing the petition till realisation.

Aggrieved by the above award, this appeal is filed.

4. Heard the standing counsel for the appellant/third

respondent and counsel for the petitioners/claimants.

5. The short point raised by the appellant/third

respondent Insurance company is that even though in the claim

petition, the annual income of the deceased was amended as MACA.No.737 OF 2012

Rs.36,000/-, the witness RW1, the employer of the deceased

deposed before the Court that the income of the deceased is

Rs.4,000/- per month. According to the counsel, the above

amount is above the statutory limit mentioned in Section 163-A

of the Motor Vehicles Act. Therefore, the claim petitions is not

maintainable. It is an admitted fact that the claim petition was

amended and the monthly income of the deceased was changed

to Rs.3,000/-. The Tribunal also accepted the same as the

monthly income of the deceased. Simply because RW1, a witness

deposed that the deceased was getting an amount more than

Rs.40,000/- per annum that cannot be accepted to reject an

application under Section 163-A of the Motor Vehicles Act. The

claimants has no case that the deceased was getting an annual

income more than Rs.40,000/-. In such circumstances, according

to me, the contention of the appellant based on the income limit

cannot be accepted.

6. Then the counsel submitted that there is

negligence on the part of the deceased which resulted in the

accident. In the light of the judgment of the Apex Court in MACA.No.737 OF 2012

United India Insurance Co.Ltd. V. Sunil Kumar (2017 (4) KLT

1093 (SC)) such a contention is irrelevant in a claim petition

filed under Section 163-A of the Motor Vehicles Act. Therefore,

such a contention cannot be accepted at this stage in the light of

the above decision. No other contentions are raised.

Hence this appeal is dismissed.

Sd/-

P.V.KUNHIKRISHNAN

JUDGE

Al/-