Kerala High Court
K.G.Divakaran & Others vs Thankachan P.I. & Another on 6 October, 2021
MACA NO. 1526 OF 2011
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 6TH DAY OF OCTOBER 2021 / 14TH ASWINA, 1943
MACA NO. 1526 OF 2011
AGAINST THE ORDER/JUDGMENT IN OPMV 810/2006 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM, PALAKKAD
APPELLANT/S:
1 K.G.DIVAKARAN, AGED 64 YEARS, S/O.GOVINDAN,
KURUVIKUNNEL HOUSE, PULAKKODE P.O.,,
CHELAKKARA(VIA), THRISSUR DISTRICT.
2 DEVAKY DIVAKARAN AGED 58 YEARS, W/O. DIVAKARAN,
KURUVIKUNNEL HOUSE,, PULAKKODE P.O.,
CHELAKKARA(VIA),THRISSUR DISTRICT.
3 DEEPA RAVI AGED 36 YEARS W/O. RAVI, KURUVIKUNNEL
HOUSE, PULAKKODE P.O.,, CHELAKKARA(VIA),THRISSUR
DISTRICT.
4 SHEEBA AGED 31 YEARS D/O. DIVAKARAN
KURUVIKUNNEL HOUSE, PULAKKODE P.O.,,
CHELAKKARA(VIA),THRISSUR DISTRICT.
BY ADV SRI.SHEJI P.ABRAHAM
RESPONDENT/S:
1 THANKACHAN P.I., PISHARATH HOUSE, KATTILAPOOVAM
P.O.,, THRISSUR-680 028.
2 ORIENTAL INSURANCE COMPANY LIMITED
DIVISIONAL OFFICE, 3RD FLOOR, MAHESWARI BUILDING,,
M.G.ROAD, THRISSUR-680 603., (POLICY NO.4554/2006
VALID FROM 27.10.2005 TO, 26.10.2006).
BY ADVS.
SRI.P.JACOB MATHEW
SRI.MATHEWS JACOB SR.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 06.10.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
MACA NO. 1526 OF 2011
2
JUDGMENT
The appellants were the petitioners in OP(MV)
No.810/2006 on the file of the Motor Accidents Claims
Tribunal, Ottapalam. The respondents in the appeal were
the respondents before the Tribunal.
2. The appellants had filed the claim petition under
Section 163 A of the Motor Vehicles Act, 1988 (in short 'Act')
claiming compensation on account of the death of Dileep
(deceased), son of the appellants 1 and 2, husband of the 3 rd
appellant and brother of the 4th appellant. It was their case
in the claim petition that, on 30.06.2006, while the deceased
was riding a motor cycle bearing registration No.KL-8/S-
3642 through Adakkode - Pulakkode, the vehicle skidded on
the road and the deceased sustained serious injuries. The
deceased rushed to the Chelakkara Government Hospital,
but he lost his life. The deceased was the sole bread-winner
of the family. The deceased was a rubber tapper by
profession earning a monthly income of Rs.3,250/-. The 1 st
respondent was the owner and the 2 nd respondent was the
insurer of the motor cycle. Hence, the appellants claimed a
MACA NO. 1526 OF 2011
compensation of Rs.4,75,500/- from the respondents, which
was limited to Rs.4,00,000/-
3. The 1st respondent did not contest the proceedings.
4. The 2nd respondent had fled a written statement,
interalia, contending that the insurance policy would not
cover the liability of the deceased-who was the rider of the
motor cycle. The 2nd respondent had not collected any
additional premium to cover the rider of the motor cycle. It
was also contended that the insurance policy was only an
'Act Policy'. Therefore, the 2nd respondent was not liable to
pay any amount as compensation.
5. The appellants produced and marked Exts.A1 to A7
in evidence. The 2nd respondent produced Ext.B1 insurance
policy and Ext.B2 kaicheet and marked it in evidence.
6. The Tribunal, after analysing the pleadings and
materials on record, dismissed the claim petition following
the decision of this Court in United India Insurance Co.
Ltd vs. Vijayarajan [2009 (3) KLT 269], wherein it was held
that the legal representatives of the deceased step into the
shoes of the owner of the motor cycle and, therefore, were
MACA NO. 1526 OF 2011
not entitled to compensation under Section 163 A of the Act.
7. Aggrieved by the impugned award, the petitioners
are in appeal.
8. Heard; Sri.Sheji P. Abraham, the learned counsel
appearing for the appellants and Sri. P. Jacob Mathew, the
learned counsel appearing for the 2nd respondent/insurer.
9. The question that arises for consideration in this
appeal is whether the dismissal of the claim petition by the
Tribunal is sustainable in law or not.
10. The fact that the deceased lost his life in an
accident on 30.06.2006 is evident from Ext.A5 charge sheet.
11. Undisputedly, the accident was a self accident due
to the skidding of the motor cycle. It is trite law that in a
claim under Section 163 A, the owner/rider of the two-
wheeler is not entitled for compensation from the insurer, if
the policy is an 'Act Policy'.
12. Nevertheless, in Ramkhiladi and another vs.
United India Insurance Company Ltd. and
MACA NO. 1526 OF 2011
another[(2020) 2 SCC 550], the Honourable Supreme Court
has in paragraph 9.8 held that, in the case of a personal
accident the owner/driver is entitled to a sum of
Rs.1,00,000/- (Rupees One lakh only) as the rider would step
into shoes of the owner, provided the same is stipulated in
the insurance policy.
13. On a perusal of Ext.B1 insurance policy, it is seen
that the insurer has issued the policy with a personal
accident cover under Section 3, for the owner-driver to the
tune of Rs.1,00,000/-(Rupees One Lakh only).
14. In view of the above policy conditions in Ext.B1
insurance policy read with the ratio in paragraph 9.8 in
Ramkhiladi (supra), I hold that the appellants are entitled
for an amount of Rs.1,00,000/- (Rupess One Lakh only) as
personal accident cover as provided under Ext.B1 policy.
In the result, the appeal is allowed in part by setting
aside the impugned award of the Tribunal, and by
permitting the appellants to realise an amount of
Rs.1,00,000/- (Rupees One lakh only) from the 2nd
respondent with interest at the rate of 7% per annum, from
MACA NO. 1526 OF 2011
the date of petition till the date of realisation, after
deducting interest for a period of 571 days as ordered by by
this Court on 30.05.2019 in C.M.Appln. No.2333/2011, and a
cost of Rs.3,000/-. The 2nd respondent is directed to deposit
the above amount of Rs.1,00,000/- with interest and cost
before the Tribunal within a period of 60 days from the date
of receipt of a certified copy of the judgment. The Tribunal
shall disburse the compensation amount to to the appellants
2 and 3 in equal shares and in accordance with law.
Sd/-
C.S.DIAS
JUDGE
rkc
