The National Insurance Company Ltd. vs Annie Margarat. P. and Others

S. Siri Jagan, J.—The Insurance Company in O.P.(MV) No. 435/2004 before the Motor Accidents Claims Tribunal, Kottayam, is the appellant herein. Respondents 1 to 4 in this appeal filed the O.P. seeking compensation for the death of T.K. Lukose, the husband of the 1st respondent and father of respondents 2 to 4. They filed the O.P. u/s 163-A of the Motor Vehicles Act. But, in the claim petition, they stated that the income of the deceased was Rs. 25,000/- per mensum. The Tribunal found negligence on the part of the driver of the vehicle insured with the appellant and awarded a total compensation of Rs. 2,01,500/-. The Insurance Company is challenging the said award. The appellant raises two contentions. The first is that since the claimants themselves claimed the monthly income of the deceased as Rs. 25,000/- and they did not choose to amend the same appropriately, the consideration of the claim u/s 163-A is clearly illegal insofar as a claim u/s 163A is maintainable for up to an annual income of only Rs. 40,000/-. The second is that the accident happened because of the negligent driving of a vehicle driven by the deceased himself when the car driven by him hit against a stationary lorry, insured with the appellant, from behind, which shows that the accident happened because of the negligence of the deceased himself. This is proved by Ext. A1 charge sheet, which is also Ext. B1, in Crime No. 310/2003 of Gandhinagar police station, in which, the deceased himself was the accused. But, further proceedings in the crime was closed as abated on account of the death of the deceased.

In answer to the same, the learned counsel for respondents 1 to 4 would contend that although in the claim petition the appellant claimed the monthly income of Rs. 25,000/-, the Tribunal found that the income is only Rs. 3,000/- and therefore the claim u/s 163-A of the Motor Vehicles Act is maintainable. As far as the second contention is concerned, respondents 1 to 4 would contend that u/s 163-A, the question of negligence is irrelevant and if a motor accident happened resulting in the death or permanent disablement, the compensation payable as per Schedule II of the Motor Vehicles Act is liable to be paid to the claimant/s by the owner of the vehicle, who is liable to be indemnified by the Insurance Company for the compensation payable to the claimant.

We have considered the rival contentions in detail. It is not disputed before us that in the claim petition, the monthly income of the deceased was shown as Rs. 25,000/- by the claimants themselves. No evidence was adduced whatsoever before the Tribunal to prove the income of the deceased. The Tribunal merely fixed the income of the deceased as Rs. 3,000/-. We are of opinion that when the claim is filed with the specific contention that the income of the deceased was Rs. 25,000/-, the Tribunal could not have considered the claim u/s 163-A. In the above circumstances, we are inclined to allow the appeal and remand the O.P.(MV) for re-consideration by the Tribunal. Insofar as on the first contention itself we are inclined to remand the matter to the Tribunal, we leave the second contention open to be considered by the Tribunal in accordance with law.

Accordingly, the impugned award in O.P.(MV) No. 435/2004 is set aside and the O.P. is remanded to the Motor Accidents Claims Tribunal, Kottayam, for fresh consideration in accordance with law and the findings in this judgment. The parties shall appear before the Tribunal for fresh proceedings in the O.P. on 5.8.2013.