Kerala High Court
Thomas P. Zacharia vs Suraj Biju on 12 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942
MACA.No.2251 OF 2015(D)
AGAINST THE AWARD IN OPMV NO.1295/2013 DATED 21-01-2015 ON THE
FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM
APPELLANTS/CLAIMANTS:
1 THOMAS P. ZACHARIA
AGED 57 YEARS
PADINARAEKUTTU HOUSE, ERAMALLOOR KARA, PUTHUPALLY,
KOTTAYAM.
2 MOLLY VARGHESE
AGED 50 YEARS
W/O. THOMAS P. ZACHARIA, PADINARAEKUTTU HOUSE,
ERAMALLOOR KARA, PUTHUPALLY, KOTTAYAM.
BY ADVS.
SRI.PRAFIN JOSEPH ZACHARIA
SMT.PRASEENA ELIZABETH JOSEPH
RESPONDENTS/RESPONDENTS:
1 SURAJ BIJU
KULATHUNKAL, PALLIYADIL HOUSE, PATHAMUTTOM P.O.,
KOTTYAM.
2 THE ORIENTAL INSURANCE CO. LTD
BAKER HILLS, KOTTAYAM - 686 001.
R1 BY ADV. SRI.C.S.MANILAL
R1 BY ADV. SRI.S.NIDHEESH
R2 BY ADV. SRI.N.S.NAJEEB
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
12.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A. No.2251 of 2015 2
JUDGMENT
Dated this the 12th day of March 2021 ...
The Appellants are claimants in O.P.(MV) No.1295 of 2013 on the file of the Motor Accidents Claims Tribunal, Kottayam. The claim petition was filed by them under Section 163A of the Motor Vehicles Act (for short 'the Act') seeking compensation for the death of one Tito P.Thomas who is the son of the appellants. The accident occurred on 11.4.2013 when the motor cycle ridden by the deceased hit on a compound wall.
2. The 2nd respondent-Insurance Company resisted the claim raising a contention that, in the facts and circumstances of this case, the claim under Section 163A is not maintainable. It is their case that, it is an M.A.C.A. No.2251 of 2015 3 accident occurred due to the negligence of the deceased himself. It was also pointed out by them that, as the deceased has taken the motor cycle involved in the accident from the 1st respondent, who is the owner thereof, the deceased has stepped into the shoes of the actual owner and, therefore, a petition under Section 163A of the Act is not maintainable.
3. The evidence in this case consists of Exts.A1 to A13 from the side of the appellants/ petitioners. Exhibit B1 was marked from the side of the respondents.
4. After the trial, the Tribunal dismissed the claim petition on the ground that, the petitioners are not entitled to get compensation since the same is not maintainable under Section 163A of the Act. Challenging the said finding, this appeal is filed.
5. It is true that, it is a petition filed M.A.C.A. No.2251 of 2015 4 under Section 163A of the Act and going by the principles laid down by the Hon'ble Supreme Court in Ningamma v. United India Insurance Co.Ltd [(2009)13 SCC 710] and New India Assurance Co.Ltd. v. Sadanand Mukhi [(2009)2 SCC 417], an application at the instance of a person who had ridden the vehicle borrowing the same from the actual owner, is not maintainable. At this point of time, the learned counsel for the appellants pointed out that, by virtue of the judgment rendered by the Hon'ble Supreme Court in Ramkhiladi v. The United India Insurance Company & Another [2020(2)SCC 550], he is entitled for personal accident coverage as contemplated in the terms and conditions of the policy. In the said judgment, the Hon'ble Supreme Court, after making specific reference to the judgment above, held that even in such cases, the M.A.C.A. No.2251 of 2015 5 claimants shall be entitled for the benefit of a clause in the policy relating to the personal accident coverage. The learned counsel for the Insurance Company resisted this contention by pointing out that, no such contentions were raised before the Tribunal and the appellants have also not produced any evidence to substantiate their claim. The learned counsel for the Insurance Company, by making available a copy of the terms and conditions of the policy, brought the attention of this Court to clause(3) of the terms and conditions of the policy. According to the learned counsel for the Insurance Company, the coverage provided in clause (3) can be made applicable only to the owner-cum-driver. As the terms and conditions of the policy is not part of the records of this case so far, this Court is of the view that, this is a matter to be considered afresh. M.A.C.A. No.2251 of 2015 6 As the said documents were not part of the records, the Tribunal was also not in a position to adjudicate upon the same. Since it is a matter affecting the rights of the appellants who have sustained unmeasurable personal loss due to the accident, this Court is of the opinion that, an opportunity can be granted to the appellants to raise their claim in this regard and to substantiate the same by adducing evidence on the strength of the personal accident coverage, and also in the light of the observations made by the Hon'ble Supreme Court in the judgment mentioned above.
In the above circumstances, the award passed by the Tribunal in O.P.(MV)No.1295 of 2013 is set aside and the matter is remanded back to the Tribunal for fresh consideration as to the question of entitlement of appellants to claim the benefits of personal accident M.A.C.A. No.2251 of 2015 7 coverage as per the policy. Both parties shall be at liberty to incorporate necessary pleadings and adduce evidence in respect of their claims. It is further directed that, the Tribunal shall dispose of the matter within a period of six months from the date of receipt of a copy of this judgment.
The appeal is disposed of with the above directions.
Sd/-
ZIYAD RAHMAN A.A. JUDGE pkk