The Divisional Manager, National Insurance Company Ltd., Thiruvananthapuram vs Joise Nadar and Others

Pius C. Kuriakose, J.—Under challenge in this appeal preferred by the Insurance Company is the award of the Motor Accidents Claims Tribunal in favour of the respondent Nos.1 to 6 who were the legal heirs of one Vikraman who lost his life in a road traffic accident caused by the negligence of the driver of a vehicle which has been insured with the appellant Company. Under the impugned judgment the learned Tribunal treated the original petition filed by the respondent to be one u/s 163A and awarded to them a total amount of Rs. 1,84,500/- as compensation. Even though various grounds are raised challenging the award Sri.Rajan P. Kaliyath in his submissions before us would give thrust to the ground that the Original Petition filed by the respondents u/s 163A was not maintainable in law as even going by the averments in the OP the monthly income of the deceased Vikraman was Rs. 8,000/-. Reliance was placed by Sri.Rajan in his submission to the judgment of the Supreme Court in Girishbhai Soni v. United India Insurance Company Ltd. 2004 (2) KLT 395. Sri.Rajan requested that the impugned award be set aside as the same has been passed in an Original Petition which was not maintainable in law.

Sri.R.Raghavan appearing for the respondents submitted that though it is true that in the Original Petition, the respondents have stated that the deceased was drawing a monthly income of Rs. 8,000/- later during the course of trial they clarified that averment and took the stand that the annual income of the deceased was just Rs. 40,000/-. Sri. Raghavan further submitted that even the appellant company contended through their objections that the deceased was not deriving any income at all at the time of the death. The learned Tribunal accepted the above contention and adopted a notional income of Rs. 15,000/-. Sri. Raghavan requested that the monthly income of the deceased be taken as below Rs. 40,000/- and the impugned award be sustained.

Having given our anxious consideration to the submissions addressed at the Bar and having kept in mind the pronouncement of the Supreme Court in Girishbhai Soni v. United India Insurance Company Ltd. (cited supra) we are of the view that the Original Petition filed by the respondents could not have been maintained u/s 163A. However, as we notice that the police had laid charge sheet against the Driver of the vehicle which was insured with the appellant company prejudice is not likely to be caused to the respondents even if the Original Petition is treated as one u/s 166. We are of the view that the Original Petition should be treated and enquired into as one u/s 166 and the Tribunal should pass a revised award. The result of the above discussion therefore is as follows:-

The impugned award is set aside and OP(MV) No. 444/99 is remanded to the Motor Accidents Claims Tribunal, Neyyattinkara. The learned Tribunal will adjudicate the OP (treating the same to be filed u/s 166) giving opportunity to both sides to adduce whatever further evidence they want to for substantiating their claims/ contentions. Revised award will be passed by the learned Tribunal at the earliest as the OP is one of the year 1999.

Parties will enter appearance before the MACT, Neyyattinkara on 30/06/12.