Kerala High Court
Leelavathy vs R.Jayaraj on 27 January, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
FRIDAY, THE 27TH DAY OF JANUARY 2023 / 7TH MAGHA, 1944
MACA NO. 2587 OF 2008
OP(MV)680/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPALAM
APPELLANTS/PETITIONERS 1 TO 4:
1 LEELAVATHY
AGED 43 YEARS,W/O.LATE KRISHNAMOORTHY,
VISHNU NIVAS, KUTHAMPULLY POST,
THALAPPILLY TALUK, THRISSUR DISTRICT,
NOW RESIDING AT MOORIKUNNATH HOUSE,
PALAPPURAM POST, OTTAPALAM TALUK,
PALAKKAD DISTRICT.
2 VISHNU PRABHU
S/O. LATE KRISHNAMOORTHY
AGED 26 YEARS, VISHNU NIVAS, KUTHAMPULLY POST,
THALAPPILLY TALUK, THRISSUR DISTRICT,
NOW RESIDING AT MOORIKUNNATH HOUSE,
PALAPPURAM POST, OTTAPALAM TALUK,
PALAKKAD DISTRICT.
3 VIJAYALAKSHMI
D/O.LATE KRISHNAMOORTHY, AGED 24 YEARS,
VISHNU NIVAS, KUTHAMPULLY POST,
THALAPPILLY TALUK, THRISSUR DISTRICT,
NOW RESIDING AT MOORIKUNNATH HOUSE,
PALAPPURAM POST, OTTAPALAM TALUK,
PALAKKAD DISTRICT.
4 REMYA
D/O.(LATE) KRISHNAMOORTHY,
AGED 23 YEARS, VISHNU NIVAS, KUTHAMPULLY POST,
THALAPPILLY TALUK, THRISSUR DISTRICT,
NOW RESIDING AT MOORIKUNNATH HOUSE,
PALAPPURAM POST, OTTAPALAM TALUK,
PALAKKAD DISTRICT.
BY ADV SRI.O.P.NANDAKUMAR
ADV V A AJAIKUMAR
RESPONDENTS/RESPONDENTS 1 & 2:
1 R.JAYARAJ,
V/449, KANIYARKODE,
THIRUVILWAMALA, THRISSUR DISTRICT.
2 THE ORIENTAL INSURANCE COMPANY LIMITED,
K.P.N. SHOPPING COMPLEX,
OPPOSITE THIRUVAMPADI TEMPLE,
SHORNUR ROAD, THRISSUR 680 001.
BY ADV GEORGE CHERIAN (SR.)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 27.01.2023, ALONG WITH MACA.12/2009, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A.Nos.2587 of 2008 & 12 of 2009
..2..
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.JAYACHANDRAN
FRIDAY, THE 27TH DAY OF JANUARY 2023 / 7TH MAGHA, 1944
MACA NO. 12 OF 2009
OP(MV)680/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPALAM
APPELLANT/2nd RESPONDENT:
THE ORIENTAL INSURANCE CO.LTD.,
THRISSUR, REPRESENTED BY ITS ASSISTANT MANAGER,
REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI -18.
BY ADV SRI.GEORGE CHERIAN (THIRUVALLA)
RESPONDENTS/CLAIMANTS:
1 LEELAVATHY,
W/O.KRISHNAMOORTHY,
VISHNU NIVAS, KUTHAMPULLY POST,
THALAPPILLY TALUK, THRISSUR DISTRICT
(NOW RESIDING AT MOORIKUNNATH HOUSE, PALAPPURAM POST,
OTTAPALAM TALUK, PALAKKAD DISTRICT).
2 VISHNU PRABHU,
S/O.KRISHNAMOORTHY,
VISHNU NIVAS, KUTHAMPULLY POST,
THALAPPILLY TALUK, THRISSUR DISTRICT
(NOW RESIDING AT MOORIKUNNATH HOUSE,
PALAPPURAM POST, OTTAPALAM TALUK, PALAKKAD DISTRICT.)
3 VIJAYALEKSHMI,
D/O.KRISHNAMOORTHY,
VISHNU NIVAS, KUTHAMPULLI POST,
THALAPPILLY TALUK, THRISSUR DISTRICT,
NOW RESIDING AT MOORIKUNNATH HOUSE,
PALAPPURAM POST, OTTAPALAM TALUK,
PALAKKAD DISTRICT.
4 REMYA,
D/O.KRISHNAMOORTHY,
VISHNU NIVAS, KUTHAMPULLY POST,
THALAPPILLY TALUK, THRISSUR DISTRICT,
NOW RESIDING AT MOORIKKUNATH HOUSE,
PALAPPURAM POST, OTTAPALAM TALUK,
PALAKKAD DISTRICT.
M.A.C.A.Nos.2587 of 2008 & 12 of 2009
..3..
5 R.JAYARAJ,
V/449, KANIYARKODE, THIRUVILWAMALA,
THRISSUR DISTRICT.
BY ADVS.
SRI.V.A.AJAIKUMAR
SRI.O.P.NANDAKUMAR
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 27.01.2023, ALONG WITH MACA.2587/2008, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A.Nos.2587 of 2008 & 12 of 2009
..4..
C.JAYACHANDRAN, J.
------------------------------------------------
M.A.C.A.Nos.2587 of 2008 & 12 of 2009
-------------------------------------------------
Dated this the 27th day of January, 2023
JUDGMENT
1. These two appeals stem from the award of the Motor
Accidents Claims Tribunal, Ottapalam in O.P.(M.V)No.680/2005.
M.A.C.A.No.12/2009 is preferred by the 2nd
respondent/insurance company, on the ground that, in a claim
under Section 163A of the Motor Vehicles Act, compensation
claimed by the legal heirs of the driver, who was a permissive
user and admittedly not employed by the owner, cannot be
sustained, going by the binding precedents of the Hon'ble
Supreme Court. M.A.C.A.No.2587/2008 is preferred by the
applicants in the O.P, who are the legal heirs of the deceased
driver, seeking enhancement of compensation granted by the
Tribunal.
2. Based on the submission made by the learned counsel for
the appellant in both the appeals that the fate of
M.A.C.A.No.2587/2008 will depend upon the fate of
M.A.C.A.No.12/2009, this Court will consider the latter first.
M.A.C.A.Nos.2587 of 2008 & 12 of 2009
..5..
3. The deceased was the driver in a Maruti Omini car, which
capsized, causing his death. The 1 st respondent before the
Tribunal was the owner. By the impugned award, the Tribunal
granted a compensation of Rs.3,21,500/-.
4. The solitary point argued by the learned counsel for the
appellant in M.A.C.A.No.12/2009 is that, since the deceased
was not employed by the 1st respondent/owner, he cannot seek
compensation under Section 163A of the Motor Vehicles Act,
for, he is, in fact, stepping into the shoes of the owner. It is
submitted that the owner could not himself be a recipient of
the compensation, since the liability to pay compensation is on
him. The deceased was only a permissive user or borrower of
the vehicle from the owner and he cannot lay a claim under
Section 163A of the M.V.Act. The learned counsel would
support the contentions of the appellant insurance company by
relying upon the judgments of the Hon'ble Supreme Court in
Ningamma and another v. United India Insurance Company
Limited [(2009) 13 SCC 710] and Ramkhiladi and another v.
United India Insurance Company and another [2020 (2) SCC
550].
M.A.C.A.Nos.2587 of 2008 & 12 of 2009
..6..
5. Per contra, the above submission was refuted by the
learned counsel for the claimants (appellants in
M.A.C.A.No.2587/2008 & respondents 1 to 4 in
M.A.C.A.No.12/2009).
6. Having gone through the records, this Court finds that the
claim of the applicants (respondents 1 to 4 in
M.A.C.A.No.12/2009) is squarely in the teeth of the judgments
of the Supreme Court in Ningamma and Ramkhiladi (supra).
Indubitably, the claim should fail going by the dictum laid down
by the Supreme Court in the two judgments above referred.
Resultantly, M.A.C.A.No.12/2009 is allowed setting aside
the impugned award. Consequently, M.A.C.A.No.2587/2008
seeking enhancement of compensation is dismissed.
Sd/-
C.JAYACHANDRAN, JUDGE
skj
