NATIONAL INSURANCE CO. LTD Vs. KOMALAVALLY AMMA

JUDGEMENT

(1.) This appeal is preferred by the insurance Company, third respondent in O. P. (M. V.) No. 498 of 1997 of the M. A. C. Tribunal, Alappuzha. Respondents 1 to 3 are the legal heirs of Vijayakumaran Nair who died in an accident which occurred on 11-03-1997. Deceased was driving a scooter bearing registration number KL-6/567 through Alappuzha - Ernakulam National Highway. When he reached at Maithara a cyclist tried to cross the road without any signal and the deceased tried to avoid the accident. By doing so he fell down and was taken to K. V. M. Hospital where he succumbed to the injuries on 15-3-1997. Claim petition was preferred by the wife and children under S.163A of the Motor Vehicles Act claiming a total compensation of Rs. 4 lakhs. The Tribunal after considering the entire matter awarded a total compensation of Rs. 2,39,000/-. It was also noticed that the accident had occurred during the course of the employment of the deceased with the fourth respondent herein and the fourth respondent was vicariously liable for the act of the employee, the deceased. Additional third respondent, appellant herein had admitted the policy and it was held that the third respondent is liable to indemnify the owner of the vehicle. Insurance Company aggrieved by the order of the Tribunal has filed this appeal.

(2.) Sri Lal George, counsel for the Insurance Company submitted that the Tribunal was not justified in passing the award under S.163A of the Motor Vehicles Act since the deceased died due to his own negligence and without the intervention of any other vehicle. Counsel submitted that since deceased himself was negligent Insurance Company is not liable to indemnify the owner. Counsel further submitted that no other vehicle was involved in the accident and the accident was occurred due to the negligent driving of the scooter by the deceased and that the claimants had failed to plead and establish that the death was occurred not due to any wrongful act or negligence on the part of the deceased. In support of his contention, counsel placed considerable reliance on the decision of a Division Bench of the Karnataka High Court in Appaji v. M. Krishna and another (2004 ACJ 1289). Counsel also referred to S.163A amended as per Act 54 of 1994 and pointed out that when the driver himself is negligent the owner of the vehicle is not liable to compensate him and the Insurance Company cannot be called upon to indemnify the owner.

(3.) Counsel appearing for the respondents - claimants submitted that the point has already been covered by the Full Bench decision of this Court in National Insurance Company Ltd. v. Malathi C. Salian ( 2003 (3) KLT 460 ). Reference was also made to the Division Bench decision of this court in New India Assurance Co. Ltd. v. Parameswaran ( 2005 (4) KLT 343 ). The Full Bench in Malathi C. Salian's case, supra considered the scope of S.163A and held as follows: