Dismissed

United India Insurance Co.Ltd. v. Naisam.P.Ashraf

Kerala HC16 Oct 2018MACA/2325/2010

Case brief

AI extract

What is this about?

The High Court dismissed two motor accident claims appeals by United India Insurance Co. Ltd. against compensation awards for deceased passengers. The court held that excess passengers and driver death did not warrant interference, applying Supreme Court precedent on claim apportionment.

What did the court decide?

Compensation awards of the Tribunal in both original petitions were upheld and appeals dismissed.

United India Insurance Co.Ltd. Vs Naisam.P.Ashraf — Insurance | Kerala HC (2018)

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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 P.R.RAMACHANDRA MENON

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TUESDAY ,THE 16TH DAY OF OCTOBER 2018 / 24TH ASWINA, 1940

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MACA.No. 2325 of 2010

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AGAINST THE AWARD IN OPMV 869/2005 of MACT PALA

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APPELLANT:

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UNITED INDIA INSURANCE CO.LTD. SITHALAKSHMI COMPLEX, TIRUNAGAR,, MADURAI.

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BY ADV. SRI.RAJAN P.KALIYATH

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RESPONDENTS:

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1 NAISAM.P.ASHRAF, PUTHENVEETTIL, ERUMELY POST.

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2 NISHA.P.ASHARAF, RABIA MANZIL, KUMANAM POST NOW RESIDING AT PUTHENVEETIL, ERUMELY POST.

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3 FOUSIA PUTHENVETTIL ERUMELY POST.

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4 FATHIMA BEEVI W/O SAINUDEEN, PUTHENVEETTIL, ERUMELY POST. [R4 is deleted from the party array at the risk of teh appellant as per order dated 16/11/2017 in I.A. 4121/2017 in MACA No. 2325/2010]

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5 SHAMSUDHEEN S/O SAINUDEEN

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VAZHAKKALAPUTHENVEEDU, NEDUMKANDOM POST.

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6 JAMEELA W/O SHEREEF PALLIVEEDU ERUMELY POST.

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7 SAIDU S/O SAINUDEEN VAZHAKKALAPUTHEN VEEDU, ERUMELY POST.

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8 RASHEED S/O SAINUDEEN VAZHAKKALAPUTHEN VEEDU, ERUMELY POST.

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9 REHYAMATH W/O HANEEFA EDASSERIL HOUSE, KARUNAPURAM POST.

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MACA Nos. 2325 & 2328 of 2010

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10 RAHMATH BEEVI W/O ISMALI VELLAPPALLIL (H), IDAYIRIKKAPPUZHA POST.

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11 ZEENATH, W/O.ISMALI, EZHUPARATHOTTIYIL (H), KANGAZHA POST.

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12 THIRUMATHY N KARUPAYEE, W/O.P.NEELAMEGAM, NO.6C, VEERAMUDIYAN MAIN ROAD, MUTHUPATTY, MADHURAI.

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13 P.NEELAMEGAM NO.6C DO.

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14 THIRUMATHI N KARUPAYEE, W/O.P.N.NEELAMEGAM, NO.6K DO.

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15 SANTHI KARMEGAM NO.6K DO.

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BY ADVS.SRI.MATHEWS RAJU, SRI.A.R.NIMOD, SRI.C.A.ANOOP SRI.JIBU P THOMAS SRI.P.S.APPU SRI.T.C.SURESH MENON

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16.10.2018, ALONG WITH MACA.2328/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA Nos. 2325 & 2328 of 2010

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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 P.R.RAMACHANDRA MENON

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TUESDAY ,THE 16TH DAY OF OCTOBER 2018 / 24TH ASWINA, 1940

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MACA.No. 2328 of 2010

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AGAINST THE AWARD IN OPMV 871/2005 of MACT PALA DATED 21-05-2010

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PPELLANT:

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UNITED INDIA INSURANCE CO.LTD. SITHALAKSHMI COMPLEX, TIRUNAGAR, MADURAI.

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BY ADV. SRI.RAJAN P.KALIYATH

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RESPONDENTS:

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1 NAISAM P.ASHRAF, PUTHENVEETTIL, ERUMELY POST,

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2 NISHA P. ASHARAF, RABIA MANZIL, KUMANAM POST NOW RESIDING AT PUTHENVEETTIL, ERUMELY POST.

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3 FOUSIA, PUTHENVEETTIL, ERUMELY POST

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4 THIRUMATHY N KARUPAYEE, W/O.P.NEELAMEGAM, NO. 6C, VEERAMUDIYAN MANI ROAD, MUTHUPATTY, MADHURAI

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5 P. NEELAMEGAM, NO.6C -DO-

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6 THIRUMATHI N KARUPAYEE, W/O. P.N.NEELAMEGAM, NO.6 K -DO-

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7 SANTHI KARMEGAM NO.6K -DO-

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BY ADVS. SRI.A.R.NIMOD, SRI.C.A.ANOOP, SRI.JIBU P THOMAS, SRI.MATHEWS RAJU,SRI.P.S.APPU & SRI.T.C.SURESH MENON

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16.10.2018, ALONG WITH MACA.2325/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA Nos. 2325 & 2328 of 2010

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JUDGMENT

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These two appeals are connected by a common cause of

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action involving an accident occurred on 08.12.2004. They arise from two claims preferred before the Tribunal in respect of death of a husband and wife. The claims were preferred by the son and daughters, joining hands with the mother of the deceased. Pursuant to the demise of the mother, other legal heirs were also brought into the party array.

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The sequence of events as described in the appeal

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shows that, on 08.12.2004, the deceased were travelling in a Mini lorry bearing No. TN 58 B 0807 insured by the appellant. While so, at about 3.30 a.m., the vehicle lost its control and overturned causing fatal injuries

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leading to the death of the persons concerned. It is also brought to the notice of this Court that the driver

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who was driving the vehicle had also lost his life;

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[besides the injuries caused to the cleaner of the

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vehicle as put forth by the learned counsel for the appellant] and the charge got abated.

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Heard the learned counsel for the appellant

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MACA Nos. 2325 & 2328 of 2010

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Insurer.

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Two contentions were mainly raised from the part of the Insurance Company; firstly, that there was no liability for them to satisfy the risk in so far as the deceased were travelling as gratuitous passengers in the vehicle at the relevant time. The other contention was that goods carriage was having only three seats and as such, there were more number of passengers than the permitted extent to be carried in the vehicle. The

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specific case of the claimant was that both the deceased were travelling in the goods carriage accompanying their goods in the vehicle. The evidence tendered before the Tribunal consists of oral testimony of PWs 1 to 3 and Exts. A1 to A14 produced from the part of the claimants. The respondents produced Exts. B1 to B3. The Tribunal

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tried both the Original Petitions jointly and passed a common award on 21.05.2010 holding that the accident was solely because of the negligence on the part of driver of the mini lorry. Based on the materials on record, the

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total compensation payable was worked out as

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Rs.2,88,500/- in O.P.(MV) No. 869 of 2005 and

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MACA Nos. 2325 & 2328 of 2010

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Rs.3,20,000/-in O.P. (MV) No. 871 of 2005. This was

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directed to be satisfied with interest @ 7.5 % from the date of petition till realization. The appellant Insurance company was required to satisfy the award amount [after repelling the contentions raised] which

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made them to feel aggrieved. Hence the appeals.

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With regard to the assertion made by the learned

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counsel for the appellant that the deceased were travelling as gratuitous passengers, it is a question of fact. No evidence was adduced from the part of the appellant Insurance Company to disprove the evidence tendered by the claimants. Based on the available materials, the Tribunal arrived at a finding to the effect that the deceased were tavelling as owners accompanying their goods, which does not warrant any interference.

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Coming to the remaining contention there were

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excess passengers in the cabin of the goods carriage and that there was violation of statutory/policy condition, this Court does not find any pith or substance in the said submission as well. This is obviously for the

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MACA Nos. 2325 & 2328 of 2010

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reason that, if a vehicle insured with the Insurance

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Company gets involved in an accident causing injuries to more persons than the permitted capacity, by virtue of the decision reported in ( 2007) 7 SCC 445 [National Insurance Company Co. Ltd. Vs. Anjana Shyam and Others],

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the total compensation has to be worked with reference to the maximum extent of claim payable and then it has to be

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apportioned among the eligible persons as specified therein.

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Coming to the instant case, when the learned

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counsel for the appellant points out that, besides the two deaths involved in these appeals, the driver of the

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vehicle had also passed away, apart from the injuries

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caused to the cleaner of the vehicle. The claims, if at

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all any in respect of the said persons are not forming

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the subject matter of this Court with reference to the common Award passed in the two O.P.(MV)s as mentioned

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above. By virtue of the law declared by the Supreme Court as above, the proper course of action was to re-fix

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the maximum liability to be covered by the Insurance company under the policy and to seek for appropriate

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MACA Nos. 2325 & 2328 of 2010

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extent of apportionment. The driver of the vehicle, even

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otherwise is having statutory coverage to the extent payable under the Workmen's Compensation Act and as such, the submission now made across the Bar does not appear to be correct or acceptable to this Court. That apart,

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on going through the documents made available, particularly, copies of the policy and permit, this Court finds that the seating capacity is three. As such, it can be reasonably presumed that out of the three seats provided, two seats were occupied by the deceased [husband and wife]; which will very much come within the purview of coverage.

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There is no much dispute with regard to the

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quantum of compensation awarded. This Court does not find any tenable ground to call for interference. The appeals fail and they stand dismissed accordingly.

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Sd/-

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P.R.RAMACHANDRA MENON

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JUDGE

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kmd

United India Insurance Co.Ltd. v. Naisam.P.Ashraf

Case brief

What is this about?

What did the court decide?

United India Insurance Co.Ltd. v. Naisam.P.Ashraf

Case brief

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What did the court decide?

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