Allowed

Unitd India Insurance Co.Ltd v. Ramla

Kerala HC9 Mar 2012MACA/973/2005

Case brief

AI extract

What is this about?

The High Court, relying on the Supreme Court judgment in National Insurance Company Ltd. v. Sinitha, held that the Motor Accident Claims Tribunal erred in treating the impugned claims as Section 163A matters. Since the accident involved allegations of negligence by the P.W.D., the claims were originally filed under Section 166.

What did the court decide?

Impugned awards set aside; OP(MV) Nos. 268/1998 and 269/1998 remanded to the Tribunal for fresh enquiry under Section 166.

Unitd India Insurance Co.Ltd Vs Ramla — Motor Accident Claims | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI

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FRIDAY, THE 9TH DAY OF MARCH 2012/19TH PHALGUNA 1933

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MACA.No. 973 of 2005 ( )

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OP(MV)NO.268/1998 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR

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APPELLANT/2ND RESPONDENT:

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UNITED INDIA INSURANCE COMPANY LIMIETD, MANNARKKAD, NOW REPRESENTED BY ITS ASSISSTANT MANAGER, THIRD PARTY CLAIMS CELL, M.G. ROAD, KOCHI-16.

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BY SRI.MATHEWS JACOB (SR.) ADV.SRI.JACOB MATHEW

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RESPONDENT(S):

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1. RAMLA W/O. LATE HASSANAR, MELETHIL HOUSE, VIYYAKURISSI, KOTTIYOD P.O., MANNARKKAD TALUK, PALAKKAD DISTRICT.

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2. RAISHA (MINOR), D/O.RAMLA, DO. DO.

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3. SHAMNA (MINOR), D/O. RAMLA, DO. DO.

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4. SHAMNAD (MINOR), S/O. RAMLA, DO. DO.

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5. MOHAMMED @ BAPPU,S/O.MOHAMMED, DO. DO.

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6. PATHUMMA W/O. ABOOBACKER, ODALAMKUNDI HOUSE, KORANAKKUNNU, KANJIRAPUZHA P.O. PALAKKAD.

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7. UNNIKRISHNAN, S/O. VELLAI, VALIYAVEETTIL HOUSE, THENKARA, MANNARKKAD, PALAKKAD DISTRICT.

2/-

sts

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M.A.C.A.NO.973/2005

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8. P.W.D REPRESENTED BY THE CHIEF ENGINEER, PWD, THIRUVANANTHAPURAM.

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9. KERALA STATE REPRESENTED BY THE DISTRICT COLLECTOR, THRISSUR.

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10. MATHEW M. NETTODY, PANIKKAPILLY HOUSE, KALAMBOOR, PIRAVOM. P.O.

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11. GEORGE JOSEPH, S/O. JOHN GEORGE, ASSISTANT ENGINEER, ROAD SECTION, CHELAKKARA NOW RESIDING AT KOCHUKALIKKAL PUTHENVEETTIL, CHANDANAPALLY, ADOOR, PATHANAMTHITTA.

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(MINOR RESPONDENTS 2 TO 4 ARE REPRESENTED BY THEIR MOTHER 1ST RESPONDENT)

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R1 TO R6 BY ADV.SRI.P.V.CHANDRA MOHAN R8 & R9 BY SR GOVERNMENT PLEADER SRI.ALOYSIUS THOMAS

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R10 BY ADV.SRI.V.K.ISSAC SRI.ISAC SANJAY SRI.K.K.APPU

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ

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MACA Nos.973 and 974 of 2005

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--------------------------------------------Dated this the 9^th day of March, 2012

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JUDGMENT

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Pius C. Kuriakose, J

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Under challenge in these two appeals preferred by the United Indian Insurance Ltd., is the common award passed by the Motor Accident Claims Tribunal, Thrissur, in O.P(MV) Nos.268/1998 and 269/1998. These two O.P(MV)s were filed by the respondents in these appeals, who were the legal heirs of two young men, who lost their lives in a road traffic accident occurred on 29/04/1996, while they were riding their motorcycles.

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The claim petitions were originally filed as petitions under Section 166 of the Motor Vehicles Act. Later, on the allegation that the accident occurred due to the negligence of the P.W.D, the P.W.D and their contractor were also impleaded in the O.P., apart from the owners of the motor cycles as well as the appellant insurance company. Later, on

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M.A.C.A Nos.973 & 974 of 2005 -:2:-

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application filed by the claimants, the O.Ps were treated as petitions under Section 163A. The learned Tribunal taking view of that provision under Section 163A is based on no fault liability, awarded compensation following the structured formula under Section 163A.

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Mr. Mathews Jacob, learned senior counsel for the appellant in all these appeals, drew our attention to the judgment of the Supreme Court in National Insurance Company Ltd. v. Sinitha (2011 (2) KLT 821(SC)) , which takes the view that the Tribunal under Section 163A is also founded on the “fault liability” principle.

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According to Mr. Mathews Jacob, going by the averments in the O.P, the accident had occurred due to the negligence on the part of the P.W.D in not arranging for any light or signals to show that the bridge on which the accident occurred was under repair. The owner and insurer of the motor vehicles in question were impleaded in the O.Ps as formal parties. The allegation of negligence were directed only against the P.W.D and their contractor.

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According to the senior counsel, the accident occurred due to the negligence on the part of the P.W.D only. The applicants could have

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M.A.C.A Nos.973 & 974 of 2005 -:3:-

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lawfully maintained the application under Section 166 and could have aspired for reasonable decision. But, strangely rather they opted to have their claims considered under Section 163A. The claims could not have been considered under Section 163A. The appellant insurance company had taken a specific contention that the deceased was not covered by the policy in question. Those aspects of the matter were never considered by the Tribunal, as the Tribunal was proceeding under the assumption that the claims under Section 163A are no fault claims. The approach of the Tribunal was perse illegal.

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Shri P. V. Chandramohan, learned counsel for the claimant respondent in response to our query submitted that it was on the basis of an oral direction given by the Tribunal that the claimants applied for conversion of their claims as one under Section 163A.

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Mr. Issac V. K., learned counsel for the contractor, who was doing the construction work over the bridge, submitted that his client and the PWD were not responsible for the accident. PWD and his client had taken all precautions considering the safety of the travelling public.

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M.A.C.A Nos.973 & 974 of 2005 -:4:-

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We have given our anxious consideration to the rival submissions addressed at the Bar. We have carefully gone through the impugned awards. We feel that the Tribunal erred in allowing the applications which were originally filed under Section 166 of the Motor Vehicles Act, to be submitted as applications under Section 163A.

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In view of the judgment of the Supreme Court in National Insurance Company Ltd. v. Sinitha (cited supra), we are of the view that the matter requires reconsideration at the hands of the Motor Accident Claims Tribunal .

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We set aside the impugned award and remand O.P(MV) No.268/1998 and O.P(MV) No.269/1998 to the Motor Accident Claims Tribunal, Thrissur. The learned Tribunal is directed to enquire into these petitions afresh, considering the petitions as petitions filed under Section 166 of the Motor Vehicles Act. Opportunity shall be given to all the parties to substantiate the contentions raised by them in the O.Ps. The learned Tribunal will pass revised awards in both these appeals on the basis of the evidence which comes on record, entering specific findings on the issues regarding negligence leading to the accident. Liability

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M.A.C.A Nos.973 & 974 of 2005 -:5:-

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should be fixed on the basis of the findings entered by the learned Tribunal regarding the negligence. In the awards to be passed, the issue as to whether the insurance company is liable on the basis of the terms of

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the policy shall also be addressed.

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Parties will enter appearance before the Tribunal on 30/03/2012.

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sd/-

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PIUS C. KURIAKOSE JUDGE

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sd/- A. V. RAMAKRISHNA PILLAI JUDGE

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//TRUE COPY//

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P.A TO JUDGE

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krj

Unitd India Insurance Co.Ltd v. Ramla

Case brief

What is this about?

What did the court decide?

Unitd India Insurance Co.Ltd v. Ramla

Case brief

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