Kerala High Court
The National Insurance Co. Ltd vs Sheeja Udayakumar on 13 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 13TH DAY OF SEPTEMBER 2021 / 22ND BHADRA, 1943
MACA NO. 3468 OF 2017
AGAINST THE ORDER/JUDGMENT IN OPMV 2355/2013 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL ,ERNAKULAM
APPELLANT/S:
THE NATIONAL INSURANCE CO. LTD.
PALA, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL
OFFICE, 2ND FLOOR, OMANA BUILDING, M.G. ROAD, KOCHI-35.
BY ADVS.
SRI.GEORGE CHERIAN (SR.)
SMT.LATHA SUSAN CHERIAN
SMT.K.S.SANTHI
RESPONDENT/S:
1 SHEEJA UDAYAKUMAR, W/O. LATE UDAYAKUMAR, KALAVATH
THUNDIYIL HOUSE, PADIVATTOM, KOCHI - 682 024.
2 HARIKRISHNAN, S/O. LATE UDAYAKUMAR, KALAVATH THUNDIYIL
HOUSE, PADIVATTOM, KOCHI - 682 024.
3 KRISHNAN UNNI, S/O. LATE UDAYAKUMAR, KALAVATH THUNDIYIL
HOUSE, PADIVATTOM, KOCHI - 682 024.
4 INDIRA. N, W/O. LATE NARAYANAN, KOKKANPADATH HOUSE,
CHENNAMANGALAM P.O., NORTH PARUR - 683 513.
BY ADVS.
SMT.CHITHRA R.SHENOY
SRI.T.R.HARI KRISHNAN
SRI.T.K.RADHAKRISHNAN
SMT.K.L.SREEDEVI
SMT.S.SREEDEVIALP
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME
UP FOR ADMISSION ON 13.09.2021, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
2
MACA No.3468 of 2017
C.S.DIAS, J.
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MACA No.3468 of 2017
======================
Dated this the 13th day of September, 2021.
JUDGMENT
The appellant- insurer was the second respondent in
OP(MV) 2355/2013 on the file of the Motor Accidents
Claims Tribunal, Ernakulam. The respondents in the
appeal were the claimants before the Tribunal. The
appellant has not impleaded the respondents 1 and 3
before the Tribunal, as parties in the appeal. Hence, the
parties are, for the sake of convenience, referred to as
per their status in the claim petition.
2. The petitioners had filed the claim petition
under Section 163A of the Motor Vehicles Act, 1988,
claiming compensation on account of the death of one
Udayakumar (deceased) - the husband of the first
petitioner, father of the petitioners 2 and 3 and son of the
fourth petitioner.
MACA No.3468 of 2017
3. The petitioners had averred in the claim petition
that on 4.7.2013, while the deceased was driving his car
bearing registration No.KL 7/BX 4968 from Palarivattom
to Perumbavoor through HMT - Kakkanad road, his car
hit on a parked and unattended tanker lorry bearing
registration No.KL 7/BG 6501 (lorry) owned by the first
respondent and insured with the second respondent. The
driver of the lorry had negligently parked the lorry on the
road. The deceased was a car driver by profession and
was earning an annual income of Rs.40,000/-. The third
respondent was the insurer of the car. Hence, the
petitioners claimed a compensation for Rs.4,98,286/-
from the respondents.
4. The first respondent did not contest the
proceeding and was set ex parte.
5. The second respondent filed a written
statement, inter alia, contending that the accident
occurred due to the negligence of the deceased, who
MACA No.3468 of 2017
drove the car in a negligent manner. It was stated that
the deceased who was driving at high speed recklessly
diverted the car on seeing a cow, but lost control of the
car and hit against the lorry. Therefore, the second
respondent was not liable to indemnify the first
respondent and pay the compensation. Nevertheless, the
second respondent admitted that the lorry had a valid
insurance coverage.
6. The third respondent - insurer of the car, filed a
written statement contending that it was only a formal
party. The offending vehicle was the lorry, which was
parked by its driver unattended on the road. Therefore, it
was the second respondent who is to indemnify the
liability of the first respondent. Hence the third
respondent may be exonerated.
7. The first petitioner was examined as PW1 and
Exts A1 to A10 were marked through her in evidence.
The second respondent produced and marked Exts B1 to
MACA No.3468 of 2017
B3 in evidence.
8. The Tribunal, after analysing the pleadings and
materials on record, allowed the claim petition by
permitting the petitioners to realise an amount of
Rs.3,75,700/- with interest at the rate of 9% per annum
from the date of petition till the date of realization and
proportionate costs. The compensation amount was
directed to be divided between the petitioners in the ratio
of 40:25:25:10.
9. Aggrieved by the impugned award, the second
respondent - insurer is in appeal.
10. Heard; Sri.George Cherian, the learned Senior
Counsel appearing for the appellant and
Sri.T.K.Radhakrishnan, the learned counsel appearing for
the respondents 1 to 4.
11. The principal ground of challenge in the appeal
is that the Tribunal failed to consider the fact that the
deceased was negligent in causing the accident, and that
MACA No.3468 of 2017
the Hon'ble Supreme Court in National Insurance
Company Ltd vs. Sinitha and others [2011 (4) KLT
821(SC) has held that the question of negligence has to
be looked into in a claim petition filed under Sec.163A of
the Motor Vehicles Act. Hence, the impugned award may
be set aside and the appeal be allowed.
12. It is fairly conceded that the Hon'ble Supreme
Court in United India Insurance Co Ltd vs. Sunil
Kumar [2017 (4) 1093 ] by a three Judge Bench, has
categorically held that in a claim under Sec.163A, there
is no requirement of any proof of negligence of the
driver/owner of the vehicle involved in the accident and
insurer is precluded from raising the defence of
negligence. Consequently, Sinitha (supra) is no longer
good law. In the above circumstances, the challenge
against the impugned award on the ground that the
Tribunal has erred in not holding the deceased negligent
cannot withstand the scrutiny of law, and the insurer is
MACA No.3468 of 2017
estopped from raising the defence of negligence.
In the result, the appeal is dismissed, upholding the
finding of the Tribunal in the impugned award. The
appellant shall forthwith deposit the compensation
amount with interest and cost before the Tribunal and
the same shall be disbursed to the respondents in
proportion and as per the conditions in the impugned
award.
Sd/-
sks/13.9.2021 C.S.DIAS, JUDGE
