Motor Accidents Claims; Sheela O.K. Vs. New India Insurance Company [Kerala High Court, 19-10-2016]

Motor Vehicles Act, 1989 – Section 149 (2) – Distinction between a case where the insurer is merely issued with a notice under Section 149(2) of the Act; and a case where the insurer has been impleaded as a respondent in the claim petition.

When an insurer is impleaded as a party-respondent to the claim petition, as contrasted from merely being a noticee under Section 149(2) of the Act, its rights are significantly different. If the insurer is only a noticee, it can only raise such of those grounds as are permissible in law under Section 149(2). But if he is a party-respondent, it can raise, not only those grounds which are available under Section 149(2), but also all other grounds that are available to a person against whom a claim is made. If the insurer is already a respondent, having been impleaded as a party-respondent, it need not seek the permission of the Tribunal under Section 170 of the Act to raise grounds other than those mentioned in Section 149(2) of the Act.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.

R.P.No.614 of 2016 in M.A.C.A.No.850 of 2016

DATED THIS THE 19th DAY OF OCTOBER, 2016

AGAINST THE JUDGMENT IN MACA 850/2016 of HIGH COURT OF KERALA DATED 31.3.2016

REVIEW PETITIONERS/RESPONDENTS 1 TO 4

SHEELA O.K, IRUPURAM AND 3 OTHERS

BY ADV. SRI.T.K.KOSHY

RESPONDENT/APPELLANT

THE NEW INDIA INSURANCE COMPANY LIMITED. DIVISIONAL OFFICE, ALUVA, REPRESENTED BY THE ADMINISTRATIVE OFFICER, REGIONAL OFFICE, KOCHI 683 101.

BY SRI.RAJAN P.KALLIYATH

O R D E R

ANIL K. NARENDRAN, J.

The petitioners in this Review Petition are the respondents in M.A.C.A.No.850/2016, an appeal filed under Section 173 of the Motor Vehicles Act, 1989 by the New India Assurance Company Ltd., the respondent herein, challenging the award passed by the Motor Accidents Claims Tribunal, Perumbavoor dated 31.12.2015 in O.P.(MV)No.1625/2012, a claim petition filed by the respondents herein, under Section 166 of the Motor Vehicles Act, claiming a total compensation of ₹14,80,000/- for the death of one Ashokan (the husband of the 1 st claimant, father of the 2 nd and 3 rd claimants and son of the 4 th claimant), who died in a motor accident occurred on 24.8.2012 at 11.00 AM, involving a lorry bearing registration No.KL-07/G-3967 owned and driven by the 1 st and 2 nd respondents before the Tribunal and insured with the respondent herein.

2. Going by the averments in the Claim Petition, on the date of accident, the deceased who was engaged in the workshop owned by him on the side of MC road at Mannoor, was hit by a lorry bearing registration No.KL-07/G-3967, owned and driven by the 1 st and 2 nd respondents before the Tribunal and insured with the respondent herein. Due to rash and negligent driving of the lorry, it ran into the workshop, resulting in the death of the deceased, who sustained fatal injuries. The petitioners herein filed claim petition before the Tribunal claiming a total compensation of ₹14,80,000/-.

3. Before the Tribunal Exts.A1 to A7 were marked on the side of the claimants and the widow was examined as PW1. The respondents before the Tribunal have not chosen to adduce any oral or documentary evidence.

4. Based on the materials on record, the Tribunal came to the conclusion that the accident occurred was due to the rash and negligent driving of the lorry by its driver. Since the vehicle was covered by a valid insurance policy, the respondent herein was held liable to indemnify the owner of the lorry, the insured. Under various heads, the Tribunal awarded a total compensation of ₹14,13,600/- and directed the insurer to deposit the said amount together with interest at the rate of 9% per annum from the date of petition till realisation, with proportionate cost.

5. Challenging the quantum of compensation awarded by the Tribunal, the insurer filed M.A.C.A.No.850/2016 before this Court contending that, the compensation awarded by the Tribunal is highly excessive and unreasonable; 30% addition towards future prospectus while fixing the multiplicand is erroneous, since the deceased was allegedly running a workshop with no regular income; the compensation awarded under the head loss of love and affection at ₹3,50,000/- is highly excessive, which has to be scaled down to ₹1,00,000/-; and the cost granted by the Tribunal is inappropriate and illegal.

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