Kerala High Court
The United India Insurance Co. Ltd vs Mariyammal @ Mariyamma on 30 May, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TH
THURSDAY, THE 30
DAY OF MAY 2024 / 9TH JYAISHTA, 1946
MACA NO. 2351 OF 2012
GAINST
A THE
COMMON
AWARD
DATED
04.06.2011
IN
OP(MV)
NO.651
OF
2009 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE
APPELLANT/2ND RESPONDENT:
HE UNITED INDIA INSURANCE CO. LTD.,
T
CALICUT, REPRESENTED BY ITS ASSISTANT MANAGER,
REGIONAL OFFICE, HOSPITAL ROAD, ERNAKULAM.
Y ADVS.
B
SRI.GEORGE CHERIAN (THIRUVALLA)
SRI.ALEXY AUGUSTINE
SMT.LATHA SUSAN CHERIAN
SMT.K.S.SANTHI
RESPONDENTS/CLAIMANTS:
1
MARIYAMMAL @ MARIYAMMA,
W/O.CHELLACHSAMY, ANNAMALAI PADHUR, MELE MARUDHAPURAM(P),
TENKASI TALUK, TIRUNELVELI DISTRICT, NOW RESIDING AT
KUNHOYI BUILDINGS, P.O.KUTTIKKATTOOR, CALICUT,
PIN-673001.
2
DASAN,
S/O.UNNIRAMAN, PRATAP NIVAS, THAZHATHE PEEDIKAYIL,
PUTHIYANGADI P.O., CALICUT, PIN-673001.
3
MOHAMMED JUNEER,
S/O.ABDULLAKOYA, 16/534, PALINTAKAM, IDIYANGARA,
P.O.PARAPPIL, CALICUT, PIN-673001.
4
JAREES, S/O.ABDULLAKOYA,
PUTHIYAPURAYIL, 'AJAS', THANIKKAD PARAMBA, P.O.ARAKKINAR,
CALICUT, PIN-673001.
MACA No.2351 & 2367 of 2012 2
5
THE NEW INDIA ASSURANCE CO. LTD.
SILVER PLAZA, I.G.ROAD, CALICUT-673001.
Y ADVS.
B
SRI.K.M.JAMALUDHEEN FOR R1
SMT.LATHA PRABHAKARAN FOR R1
SRI.AVM SALAHUDDIN FOR R4
SRI.N.S.NAJEEB FOR R5
THIS
MOTOR
ACCIDENT
CLAIMS APPEAL
HAVING
BEEN FINALLY
EARD
H ON
30.05.2024,
ALONG WITH
MACA.2367/2012, THE
COURT
ON
THE SAME DAY DELIVERED THE FOLLOWING:
MACA No.2351 & 2367 of 2012 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TH
THURSDAY, THE 30
DAY OF MAY 2024 / 9TH JYAISHTA, 1946
MACA NO. 2367 OF 2012
GAINST
A THE
COMMON
AWARD
DATED
04.06.2011
IN
OP(MV)
NO.655
OF
2009 OF PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE
APPELLANT/2ND RESPONDENT:
HE UNITED INDIA INSURANCE CO.LTD,
T
CALICUT, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL
OFFICE, HOSPITAL ROAD, ERNAKULAM.
BY ADV SRI.GEORGE CHERIAN (THIRUVALLA)
RESPONDENT/S:
1
JAYAMANI,
W/O. KODUINGU SAMY, ANNAMALAI PADHUR, MELE
MARUDHAPURAM(P), TENKASI TALUK, TIRUNELVELI DISTRICT, NOW
RESIDING AT KUNHOYI BUILDING, P.O.KUTTIKKATTOOR,
CALICUT-673 001.
2
DASAN,
S/O. UNNIRAMAN, PRATAP NIVAS, THAZHATHE PEEDIKAYIL,
PUTHIYANGADI, CALICUT-673 001.
3
MOHAMMED JUNEER,
S/O. ABDULLAKOYA, 16/534, PALINTAKAM, IDIYANGARA,
P.O.PARAPPIL, CALICUT-673 001.
4
JAREES,
S/O. ABDULLAKOYA, PUTHIYAPURAYIL, 'AJAS', THANIKKAD
PARAMBA, P.O.ARAKKINAR, CALICUT-673 001.
MACA No.2351 & 2367 of 2012 4
5
THE NEW INDIA ASSURANCE CO. LTD.,
SILVER PLAZA, I.G.ROAD, CALICUT, PIN-673 001.
Y ADVS.
B
SRI.K.M.JAMALUDHEEN FOR R1
SMT.LATHA PRABHAKARAN FOR R1
SRI.REJI T.BHASKAR FOR R5
THIS
MOTOR
ACCIDENT
CLAIMS APPEAL
HAVING
BEEN FINALLY
EARD
H ON
30.05.2024,
ALONG WITH
MACA.2351/2012, THE
COURT
ON
THE SAME DAY DELIVERED THE FOLLOWING:
MACA No.2351 & 2367 of 2012 5
J U D G M E N T
The 2nd respondent/insurer-United India Insurance
CompanyLimitedhascomeupwiththeseappealsagainstthe
common awardinOP(MV) Nos.651of2009 and655 of2009
on the file of Principal Motor Accidents Claims Tribunal,
Kozhikode,disputingtheirliabilitytocompensatetheclaimant
in the respective claim petitions.
2. On 31.01.2008 at about 7.40 p.m., while the
claimants in OP(MV) Nos.651of 2009and 655of2009were
travelling in a goods autorickshaw bearing registration
No.KL-11/U-5334, a motorcycle bearing Registration
No.KL-11/W-7709 driven by one Mr.Jarees, in a rash and
negligent manner, hit against the autorickshaw, causing
serious injuriesto the claimants. They weretaken toMedical
College Hospital, Kozhikode, and were treated there. The
claimant in OP(MV) No.655 of 2009 suffered permanent
disabilityalso,duetotheinjuriessufferedintheaccident.The
MACA No.2351 & 2367 of 2012 6
claimantinOP(MV)No.651of2009preferredherclaimunder
Section 166of the Motor VehiclesAct;whereas,theclaimant
in OP(MV) No.655 of2009 preferredher claim underSection
163A of the Motor Vehicles Act before the Tribunal, and in
bothclaims,awardwaspassedbytheTribunalintheirfavour,
finding that the 2nd respondent-Insurer of the autorickshaw
was liable to compensate them.
3.The1strespondentwastheowner-cum-driverofthe
autorickshawandthe2ndrespondentwasitsInsurer.The3rd
respondent was the owner of the motorcycle. The 4th
respondent was its rider and the 5th respondent was its
Insurer.
4.Learnedcounselfortheappellantswouldsubmitthat
the autorickshaw involved in the accident was a goods
autorickshaw and the claimants were only gratuitous
passengers in that autorickshaw, and so much so, the
Insurance Company was not liable to indemnify theinsured.
MACA No.2351 & 2367 of 2012 7
So, according to them, the award passed by the Tribunal,
making them liable to compensate the claimants is liable to
be set aside.
5. Now this Court is called upon to answer whether
there is any illegality, irregularity or impropriety in the
impugned common award, warranting interference by this
Court.
6. Heard learned counsel for the appellant, learned
counselforrespondents1,2,4and5.TheInsurancePolicyof
the autorickshaw as well as the motorcycle involved in the
accident on the relevant date is not under dispute.
7.Learnedcounselfor theappellantwouldsubmitthat
the autorickshaw was having a package Policy covering one
employee, for which premium was collected. According to
them, the claimants were only passengers in the goods
autorickshaw, and so they cannot claim any benefit under
that Policy.Butthe testimonyof PWs 1and2istotheeffect
MACA No.2351 & 2367 of 2012 8
that theywere travelling intheautorickshawalongwiththeir
goods and so, one person will get coverage under Section
147(1)(b)(i) of the Motor Vehicles Act. So the claim under
Section 166 of the Motor Vehicles Act made by the
claimant-Mariyammal in OP(MV)No.651 of 2009 will be
covered under Ext.B2 Policy and so, the appeal against the
awardinOP(MV)No.651of2009 isliabletobedismissed, as
the claimant in that Original Petition can be treated as the
employeecoveredunderthatPolicy,whowastravellingalong
with the goods carried in that autorickshaw. So MACA
No.2351 of 2012 is dismissed.
8. As far as MACA No.2367 of 2012 is concerned itis
against the award passed in OP(MV) No.655 of 2009, which
was a claim under Section 163A of the Motor Vehicles Act.
Learned counsel for the appellant would submit that two
ladies were travelling inside the driver's cabin of the
autorickshaw,sittingoneithersideofthedriver.Ext.B2Policy
MACA No.2351 & 2367 of 2012 9
will coveronlyoneofthemifatallitwasfoundthatshewas
an employee covered under Ext.B2 Policy, as the owner or
representativeofthegoodscarriedinit.Thatclaimhastobe
treated as a claim under Section 166 of the Motor Vehicles
Act, as the accident occurred due to the rash and negligent
driving of the autorickshaw by the 1st respondent, asfound
bythe Tribunal,basedonExt.B1finalreport. Forthesecond
lady, they had no liability under Ext.B2 Policy and so, the
finding of the Tribunal that theCompanyhastocompensate
the claimant in OP(MV)No.655 of 2009 is liable to be set
aside. On going through the facts and evidence, it could be
seenthatExt.B2Policywascoveringonlyoneemployeeapart
from the driver and it will not cover any other person
travelling in the autorickshaw. So, as far as the claimant in
OP(MV)No.655of 2009isconcerned,herclaimunderSection
163AoftheMotorVehiclesActisnotliabletobehonouredby
the appellant.
MACA No.2351 & 2367 of 2012 10
9. Learned counsel for the 1st respondent/claimant
wouldsubmit that asper Section163A oftheMotor Vehicles
Act,theclaimantcanmakeherclaimagainsttheownerofthe
motor vehicle or the authorised Insurer in case of death or
permanentdisablementduetoaccidentarisingoutoftheuse
ofthemotorvehicle.Section163AoftheMotorVehiclesActis
extracted below for easy reference:
"1
63A.Specialprovisionsastopaymentof
compensation on structured formula
basis.--(1) Notwithstanding anything contained in
this Act or in any other law for the time being in
force or instrument having the force of law, the
owner of the motor vehicle or the authorised
insurershallbeliabletopayinthecaseofdeathor
permanent disablement due to theaccidentarising
out of the use of motor vehicle, compensation, as
indicatedintheSecondSchedule,tothelegalheirs
or the victim, as the case may be.
Explanation.--For the purposes of this
sub-section, "permanent disability" shall have the
same meaning and extent as in the Workmen's
Compensation Act, 1923 (8 of 1923).
MACA No.2351 & 2367 of 2012 11
(2) In any claim for compensation under
sub-section (1), the claimant shall not be required
to plead or establish that the death or permanent
disablementinrespectofwhichtheclaimhasbeen
made was due to any wrongful act or neglect or
default of the owner of the vehicle or vehicles
concerned or of any other person.
(3) The Central Government may, keeping in
view the cost of living bynotificationintheOfficial
Gazette, from time to time amend the Second
Schedule."
10. Section 163A(2) says that 'in any claim for
compensationundersub-section(1),theclaimantshallnotbe
required to plead or establish that the death or permanent
disablementinrespectofwhichtheclaimhasbeenmadewas
duetoanywrongfulact or neglectordefaultoftheownerof
thevehicle or vehiclesconcerned or ofanyotherperson'.As
per Ext.B1 final report, the driver of the autorickshaw was
rash and negligentindriving, andduetohis negligence,the
autorickshaw collided with the motorcycle. Learned counsel
MACA No.2351 & 2367 of 2012 12
for the 1st respondent would submit that irrespective of the
fact that the rider of the motorcycle was negligent or not,
since that vehicle was also involved in theaccident,and the
accident arose out of use of that motor vehicle also, she is
entitled to claim compensation from the owner or Insurerof
that vehicle.The5th respondent-Insurerofthemotorcycleis
admittingthePolicyduringthe relevantperiod. They arenot
disputingthefactthatthemotorcyclewasalsoinvolvedinthe
accident, as it occurred due to collision between the
autorickshawandthemotorcycle.Sogoingbysub-section(2)
ofSection163A,irrespectiveofthefactumofnegligencefrom
the part of the rider of the motorcycle, the claim under
Section 163Apreferred by theclaimantin OP(MV)No.655 of
2009 is to be treated as maintainable, as the claimant
suffered permanent disablement due to the accident arising
out ofthe useof that motorcycle also.So,thecompensation
awardedby theTribunalinOP(MV)No.655of2009isliableto
MACA No.2351 & 2367 of 2012 13
be paid by the 5th respondent-Insurer, by indemnifying the
3rd respondent-owner of the motorcycle.So, MACA No.2367
of 2012 filed by the appellant is liable to be allowed,
exonerating them from compensating the 1st respondent,
whois theclaimantinOP(MV)No.655 of2009.Theawardis
modified making the 5th respondent-New India Assurance
Company Ltd. liable to compensate the claimant.
11. The 5th respondent is directed to deposit the
compensation amount asawardedbythe Tribunal inOP(MV)
No.655of2009withintwomonthsfromthedateofreceiptof
a copy of this judgment if not deposited so far.
Withthesedirectionsandmodifications,MACANo.2351
of2012isdismissedandMACANo.2367of2012isallowedto
the extent as above. No order as to costs.
Sd/-
SOPHY THOMAS
JUDGE
DSV/-
