Kerala High Court
Rajamma vs National Insurance Company Ltd on 31 July, 2012
Author: A.V.Ramakrishna Pillai
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 17TH DAY OF JANUARY 2013/27TH POUSHA 1934
RP.No. 1038 of 2012 () IN MACA.712/2004
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AGAINST THE JUDGMENT IN MACA.712/2004 of HIGH COURT OF
KERALA DATED 31-07-2012
REVIEW PETITIONER(S)/RESPONDENTS 1 AND 2:
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1. RAJAMMA,
D/O GEEVI, MAVILA PUTHEN VEEDU, UNDAPPARA,
POOVACHAL P.O., KATTAKKADA, PERUMKULAM,
THIRUVANANTHAPURAM DISTRICT.
2. BEENA
D/O.RAJAMMA, MAVILA PUTHEN VEEDU, UNDAPPARA,
POOVACHAL P.O., KATTAKKADA, PERUMKULAM,
THIRUVANANTHAPURAM DISTRICT.
BY ADV. SRI.R.NIKHIL
RESPONDENT(S)/APPELLANT:
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NATIONAL INSURANCE COMPANY LTD.
REP.BY ITS ASSISTANT MANAGER, KOCHI REGIONAL OFFICE,
T.P.CELL, M.G.ROAD, ERNAKULAM 682035.
BY ADV. SRI.M.A.GEORGE, SC, NIC
BY ADV. SMT.RAJI T.BHASKAR
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION
ON 17-01-2013, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
DSV/-
PIUS C. KURIAKOSE &
A.V.RAMAKRISHNA PILLAI, JJ.
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R.P. No.1038 of 2012
in
M.A.C.A.No.712 of 2004
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Dated this the 17th day of January, 2013
O R D E R
Ramakrishna Pillai, J.
The review petitioners, who are respondents 1 and 2 in the MACA, are the legal representatives of one Biju, who met with his death in a road traffic accident occurred on 21.7.2001, while he was riding a motorcycle belonging to the 3rd respondent in the appeal. He lost control over the vehicle at the relevant spot and hit against an electric post standing on the road, as a result of which, he fell down and sustained head injuries to which he succumbed while undergoing treatment.
2. The claim was under Section 163A of the Motor Vehicles Act, for short, the Act. The learned Tribunal awarded a sum of `2,76,500/- as compensation together with interest.
3. The insurer of the vehicle preferred an appeal disputing the liability, mainly on the following grounds:-
RP1038/12 -:2:-
i) The policy issued by the respondent was an Act only Policy which covers the risk of third parties only.
ii) The annual income of the deceased exceeded `40,000/- and accordingly, the claim should not have been entertained under Section 163A of the Act as per the decision of the Apex Court in Deepal Girishbhai Soni v. United India Insurance Co. Ltd. [2004 (2) KLT 395 (SC)].
iii) The deceased was riding the two wheeler with the consent of the third respondent, who is the registered owner. Thus, he stepped into the shoes of the registered owner and this would dis-entitle the claimant to get compensation as per the decision of the Apex Court in Nigamma v. United Insurance Co. Ltd. [2009 (13) SCC 710).
iv) The accident was due to the negligence of the deceased himself and the claim is not sustainable under Section 163A of the Act in the light of the decision of the Apex Court in National Insurance Company Ltd. v.
Sinitha [2011(4) KLT 821 SC].
4. All these grounds were considered by this Court and found that the claim is unsustainable. Thus, we allowed the appeal setting aside the impugned award.
RP1038/12 -:3:-
5. In the present review petition, the respondent would allege that a claim under Section 163A of the Act can be defeated only by pleading and establishing negligence on the part of the deceased. It was pointed out by the learned counsel for the review petitioners that even as per police records, the accident had occurred due to a misfortune. It was pointed out that there is nothing in the police records to show that the deceased was negligent, though there are indications to the effect that he was solely responsible for the accident. Under such circumstances, the claim of the review petitioners should not have been defeated. That was the argument.
6. Admittedly, the vehicle involved in the accident was a two wheeler belonging to the third respondent in the appeal. On a specific query put by us at the time of hearing the learned counsel for the review petitioners regarding the relationship of the deceased with the vehicle, he could not give a cogent answer. His submission was that the deceased was an employee under the third respondent. But it is difficult to imagine that the deceased was employed as a driver of the two wheeler of the third respondent. The possible presumption that can be drawn in the instance case is that the deceased was riding the two wheeler with the consent of the third respondent who was the registered owner. So he stepped into the shoes of RP1038/12 -:4:- the third respondent. That means he is not a third party. So on that ground itself, the claim of the review petitioners is bound to fail.
7. As we see no demonstrable reason for reviewing the impugned judgment, the review petition fails.
In the result, the review petition is dismissed. No costs.
sd/-
PIUS C. KURIAKOSE JUDGE sd/-
A.V.RAMAKRISHNA PILLAI
JUDGE
//TRUE COPY// P.A. TO JUDGE
krj