Appukuttan vs K. Viswambharan

T.R. Ramachandran Nair, J.—The appellants are the parents of deceased Biju who died in a motor vehicle accident, which took place on 13.12.03. The application for compensation, though filed under Section 163A of the Motor Vehicles Act, was not allowed by the Tribunal and hence the appeal.

At the time of the accident the deceased was riding a motorcycle bearing Registration No. KL-01-Z-8636.

The learned counsel for the appellants submitted that the Tribunal went wrong in finding that the deceased had contributed to the cause of the accident. It is submitted that even though the 4th respondent, who is the insurer of the vehicle driven by the deceased, was impleaded, as far as the finding that the said respondent is not liable for compensation is concerned, the appellants are not challenging. But as far as the finding by the Tribunal that the 3rd respondent has also to be absolved from liability for payment of compensation on the ground that the deceased had caused the accident is concerned, the learned counsel submitted that the same cannot be supported in the light of the decision of this Court in Oriental Insurance Co. Ltd. Vs. Joseph, , that of a Division Bench of this Court in United India Insurance Co. Ltd. Vs. Vijayarajan and Others, , and that of the Apex Court in Pepsu Road Transport Corporation Vs. National Insurance Company, as well as another Division Bench decision of this Court in Oriental Insurance Co. Ltd. Vs. Nirarudeen, .

The learned counsel for the 3rd respondent Insurance Company submitted that for adducing evidence to it on this aspect the matter may be remanded to the Tribunal.

Sri R.T. Pradeep, the learned counsel for the appellants contended that since the contention of the insurance company is that the accident occurred due to negligence of the deceased Biju, the onus to prove the same is heavily on the insurance company, which has not been discharged at all. It is submitted that the Tribunal heavily relied on Ext. A1 final report in the crime registered and the learned counsel submitted that since it is a claim under Section 163A, the contention whether there is any wrongful act, negligence or default on the part of the deceased is a matter which should have been proved in evidence by the Insurance Company and since no attempt was made in this case to adduce any evidence by the Insurance Company, the application ought to have been allowed.

We find that the Full Bench in para. 7 and 8 of the decision reported in Oriental Insurance Co. Ltd. v. Joseph (supra) has discussed the difference between provisions namely Section 140 of the Motor Vehicles Act, 1939 as well as Section 163 of the Motor Vehicles Act, 1988. There the Full Bench was of the view that to avoid the liability of payment of compensation, insurer can take the defence by pleading any of the faults i.e., ''wrongful act'', neglect'' of ''default''. That was a case where the claimants had arrayed only the insurance company of the vehicle which was driven by the deceased on the fateful day. It was held that, if the plea that the deceased was negligent is established, the liability of the insurer can be absolved. Significantly the Full Bench has stated as follows in para. 8:

"8.......

........................

.... If the insured and other insurer of other vehicle were to be party to the proceedings, then automatically the deceased and his legal representatives, who are the claimants could be termed as third parties so far as the other vehicle is concerned."

This portion of the dictum was relied upon heavily by Sri R.T. Pradeep to point out that the same can apply to the facts of this case since the claimants have got a case that the motor vehicle driven by the 1st respondent hit a cyclist and both the vehicles collided and the vehicle driven by the deceased Baiju which was coming from behind it ran into it and Baiju sustained injuries and consequently he lost his life.

A reference to Ext. A1 will show that the same while describing the accident it is stated that the vehicle driven by the deceased had caused the accident. But in a matter like this, since the insurance company, in para. 5 of the written statement stated that the accident occurred due to the sole rashness, negligence and fault of the deceased Baiju, it cannot be disputed that the burden is heavily on them. The finding in para. 17 of the judgment by the Tribunal, that the 1st respondent''s vehicle had only a passive role, is entered, without any evidence on the part of insurer. No witnesses or respondent No. 1 was cited or examined.

When we refer to the pleadings of the Insurance company in para. 9 of the written statement, what they have alleged is that the accident occurred in a different manner. Going by the same the averment is that motorcycle driven by the deceased hit on the back of the motorcycle bearing Reg. No. KL-01/L-8611 which was being driven by the 1st respondent Viswambharan. In para. 4 of the written statement the accident is described as follows:

"4......the Motor Cycles KL-01/L-8611 and KL-01/Z-8636 were ridden from north to south along Nellimoodu-Kanjiramkulam public road. The Motor Cycle KL-01/Z-8636 was being ridden from behind the Motor Cycle KL-01/L-8611. First the Motor Cycle KL-01/Z-8636 ridden by Baiju, hit on the back side of the Motor Cycle KL-01/L-611 ridden by the first respondent Viswambharan. Then this Motor Cycle KL-01/L-8611 went out of control and hit a bicycle, pedaled by Shaiju from the opposite direction So it is clear that the offending Motor Cycle is KL-01/Z-8636 ridden by the deceased Baiju, against whom the police filed charge sheet first........"

As far as the said version about the accident is concerned, no evidence was adduced before the Tribunal. Therefore, the said version of the Insurance Company stands not proved. If that be so, according to us, it cannot be said that the Insurance Company has been successful to avoid liability for payment of compensation.

In this context we refer to a decision of a Division Bench of this Court in Oriental Insurance Co. Ltd. Vs. Nirarudeen, . That was a case where the Insurance Company alleged that there is absence of driving licence which is the cause of the accident. Significantly the Bench has stated thus in page 292:

"No evidence was adduced by the Insurance Company to show that absence of driving licence is the cause of accident. Except relying on the police records, there is no evidence to show that even though such a charge was made that he was convicted for the offence. Burden is on the Insurance Company to prove that there is violation of the policy of insurance."

If we consider the stand taken by the Insurance Company which is already referred to by us earlier, their case appears to be that the vehicle driven by the deceased hit against the motorcycle driven by the 1st respondent first triggering the accident which is contrary to the details of the accident contained in Ext. A1. Therefore, as far as the application under Section 163A is concerned, we find that the claimants are entitled to succeed for want of evidence on the part of the Insurance Company.

What we find from the order of the Tribunal is that the Tribunal in para. 17 was of the view that the applicants have made a clean shift as to the facts of the case. Evidently after the accident occurred initially an attempt was made to show the deceased as offender and the Police tried to put the obligation on him when the investigation was conducted. Thereafter on a complaint made by the 1st appellant, the father of the deceased, a further investigation was made and thereafter the charge was laid as per Ext. A1. The deceased was not arrayed as an accused and the 1st respondent alone was charge sheeted. The Tribunal finally concluded that the accident had not occurred due to the involvement of the motor vehicle namely the vehicle driven by the 1st respondent. In the absence of any evidence on the part of the 1st respondent or by the Insurance Company, we find that the said conclusion is really unsupportable. Therefore we reverse the finding rendered by the Tribunal on that score.

The monthly income claimed is Rs. 3,000/-. It is stated that the deceased was working as a Marble Contractor. He was aged 24 years at the time of the accident. Going by Section 163A, the maximum annual income that can be taken for consideration is only Rs. 40,000/-. Therefore in the absence of any contra evidence we fix the monthly income as Rs. 3,000/- making the annual income to Rs. 36,000/- from out of which 1/3rd will have to be deducted towards the personal expenses. If that be so, the annual income of the deceased which will be contributed to the appellant''s family will be Rs. 24,000/-. Since he was in the age group of 24, going by Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , the multiplier will be 18. Along with it going by the second schedule, an amount of Rs. 2,000/- is liable to be granted towards funeral expenses, Rs. 5,000/- towards loss of consortium and Rs. 2,500/- towards loss of estate. Even though actual bills were not produced to prove medical expenses, we fix a notional amount of Rs. 2,500/- towards medical expenses. Thus the total compensation would be Rs. 4,43,500/- (Rupees Four lakhs forty three thousand and five hundred only) which will carry interest @ 9% per annum from the date of petition till realisation. There will be a direction to the 3rd respondent to deposit the amount within three months and on such deposit, we allow the appellants to withdraw the amount also since the accident occurred in the year 2003.

The appeal is allowed to the above extent. No costs.