Kerala High Court
National Insurance Company Ltd vs Radhamani on 15 March, 2012
Bench: Pius C.Kuriakose, A.V.Ramakrishna Pillai
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE
&
THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
THURSDAY, THE 15TH DAY OF MARCH 2012/25TH PHALGUNA 1933
MACA.No. 1444 of 2008 (A)
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(O.P. (MV) NO.1328/2002 of MACT ALAPPUZHA)
APPELLANT/2ND RESPONDENT:
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NATIONAL INSURANCE COMPANY LTD.,
ALAPPUZHA REPRESENTED BY ITS BRANCH MANAGER.
BY ADVS.SRI.RAJAN P.KALIYATH
SMT.ANUSHA RAMACHANDRAN
RESPONDENTS/PETITIONERS 1 TO 4 & R1:
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1. RADHAMANI, W/O. HARIDAS,
MANACKAL VEEDU, WARD NO.8 OF PUNNPRA NORTH
PANCHAYATH, ALAPUZHA.
2. RAJESH, S/O. HARIDAS
DO..DO..
3. RAMYA,D/O. HARIDAS
DO....DO..
4. RAJAMMA,D/O.
DO..DO...
5. T.D.SADASIVAN, S/O. T.N.DAMODARAN
ANANDALAYAM, PRAKKULAM POST, KOLLAM.
R1 TO R4 BY ADV. SRI.R.AZAD BABU
R5 BY ADV. SRI.PRATHEESH.P
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
15-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DST
PIUS C.KURIAKOSE &
A.V.RAMAKRISHNA PILLAI, JJ
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MACA No.1444 of 2008
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Dated this the 15th day of March 2012
JUDGMENT
Ramakrishna Pillai, J The Insurance Company has come up in appeal.
2. Respondents 1 to 4 being the legal heirs of one Haridas who died due to the injuries sustained by him in a road traffic accident occurred on 19.5.2002, made a claim under Section 163A of the Motor Vehicles Act before the Tribunal for a compensation of Rs.5 lakhs under different heads.
3. Allegedly, while the deceased was riding a motor cycle owned by the fifth respondent, the vehicle capsized as it fell into a gutter. The deceased was thrown down and sustained fatal injuries to which he succumbed on the next day while undergoing treatment at Medical College Hospital, Alappuzha.
4. The fifth respondent who is the owner of the vehicle involved in the accident remained ex parte through out the proceedings.
MACA No.1444 of 2008 2
5. The appellant Insurance Company while admitting the policy contended that the accident occurred due to the negligence of the deceased and the claimants are not entitled to get any compensation from them.
6. The learned Tribunal, after considering the evidence, awarded a sum of Rs.2,98,000/- under various heads, the claim being one under Section 163 of the Motor Vehicles Act (herein after referred to as the 'Act' for short) for the death which arose out of the use of the vehicle insured with the appellant. The said finding is under challenge in this appeal.
7. We have heard the learned counsel for the Insurance Company and the learned counsel for the respondents. We have also perused the impugned award.
8. It is not in dispute that the accident occurred while the deceased was riding a motor cycle owned by the fifth respondent. It is also not in dispute that no other vehicle was involved in the accident. That means, it was a self created accident. There was no employer-employee relationship between the fifth respondent and the deceased. Evidently, the deceased was a borrower of the MACA No.1444 of 2008 3 vehicle involved in the accident. It is here we are reminded of the decision of the Apex Court in Nigamma and another v United India Insurance Co.Ltd. (2009 ACJ 2020) where the maintainability of a claim petition filed by the dependents of a deceased under Section 163A of the Act was considered. In that case, the deceased was riding a motor cycle which dashed against a bullock cart proceeding ahead, resulting in the death of the motor cyclist. It was in evidence that the deceased had borrowed the motor cycle from its owner. Allowing the claim petition filed by the representatives under Section 163A of the Act, the Tribunal awarded compensation and directed to pay the amount.
9. When the matter was taken in appeal before the High Court, the High Court held that the claim petition was not maintainable as there was no tortfeasor involved. The said decision was upheld by the Apex Court holding that the deceased who was the borrower stepped into the shoes of the owner and he could not himself be a recipient of compensation as liability to pay the same was on him.
10. Viewed in that profile, the impugned award MACA No.1444 of 2008 4 has to be interfered with and it has to be set aside.
11. In the result, we allow the appeal and set aside the impugned award. No costs.
Sd/- PIUS C.KURIAKOSE,
JUDGE
sd/- A.V.RAMAKRISHNA PILLAI,
JUDGE
css/ true copy
P.S.TO JUDGE