IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 6TH AUGUST 2008 / 15TH SRAVANA 1930 MFA.No. 241 of 2003(F) -------------------------------------- OPMV.1527/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI .................... APPELLANTS/CLAIMANTS: 1. AYSHA ALANGADAN, W/O. LATE P.S.ABDULLA, PERIVANTHADATHIL HOUSE, MANKADA P.O., MALAPPURAM DISTRICT. 2. JASMIN SHAREEFA, D/O. LATE P.S.ABDULLA, DO. DO. 3. SELMAN SUFIBIN ABDULLA, S/O. LATE P.S.ABDULLA, DO. DO. 4. FATHIMATHUL SUHARA, D/O.LATE P.S.ABDULLA DO. DO. 5. UMMU HABEEBA P., DO. DO. 6. ABOOBACKER SIDDIQUE P., (MINOR), AGED 14, S/O. LATE P.S. ABDULLA, DO. DO. 7. HAMZA P (MINOR), AGED 13, DO. DO. 8. MUHAMMED FUVAD (MINOR), AGED 10, DO. DO. (APPELLENTS 6 TO 8 ARE REP. BY THEIR MOTHER 1ST APPELLANT). BY ADV. SRI.P.VIJAYAKUMAR RESPONDENTS/RESPONDENTS: 1. N.SADANANDAN, S/O. GOPALAN, MELLANGOTTIL HOUSE, MANKADA P.O., MALAPPURAM DIST. 2. THE NEW INDIA ASSURANCE CO. LTD., MALAPPURAM. BY ADV. SRI.M.JACOB MURICKAN FOR R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 06/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & K.P.Balachandran, JJ. --------------------------------- M.F.A.No.241 of 2003 --------------------------------- JUDGMENT Koshy, J. The appellants/claimants, who are the wife and children of deceased Abdulla, filed a claim petition, claiming an amount of Rs.5,50,000/-. Abdulla died in a motor accident while he was travelling in a taxi car. According to the claimants, brother of deceased Abdulla was hospitalised and he was going in a car to the hospital. His relatives were returning from the hospital in a jeep owned by Abdulla and the accident occurred. As a result of the injuries sustained in the accident Abdulla died. Other claimants, travelling in the car, including the driver of the car, filed applications for compensation alleging negligence on the part of the driver of the jeep. In those cases, the Tribunal found that the accident occurred due to the MFA 241/03 2 negligence of the driver of the jeep owned by deceased Abdulla. The Insurance company of the jeep was directed to pay compensation. Since deceased Abdulla was the owner of the jeep, when the legal representatives filed claim petition, it was urged that accident occurred due to the negligence of the driver of the taxi car in which Abdulla was travelling. The Tribunal held that already there is a finding that driver of the jeep was negligent and owner of the jeep was deceased Abdulla and the Insurance Company of the jeep was held liable to pay compensation, as the driver of the jeep was negligent. In such circumstances, the Tribunal held that legal representatives of the insured cannot claim amount from the Insurance Company of the jeep owned by the deceased. The jeep driver and the insurance company of the jeep were also not impleaded. The claim petition against the car driver, owner and Insurance Company was dismissed, as the driver of the car was not MFA 241/03 3 negligent for the accident as already found by the Tribunal. In those cases, Abdulla was a party. It is submitted that the legal representatives of deceased Abdulla was not impleaded as parties there. Therefore, the above finding is not applicable to the facts of this case. The principles of Res judicata will not be strictly applicable. But, in a group of cases, the Tribunal awarded compensation for the passengers in the taxi car involved in the same accident holding that driver of the jeep was negligent and the driver of the taxi was not negligent after considering the evidence. In any event, the evidence adduced in this case will not show that car driver was negligent. Exhibit A5 produced by the claimants itself shows that the jeep driver alone was charge sheeted and not the car driver. So, there is no evidence to show that the car driver was negligent. Therefore, under Section 166 of the Motor Vehicles Act, car driver, owner or the Insurance Company MFA 241/03 4 cannot be made liable. 2. It is argued that the application may be converted into an application under Section 163(A) of the Act, so that compensation can be claimed for no fault liability. We are of the opinion that such a course cannot be adopted. The claimants can file applications either under Section 166 or 163 (A) of the Act. But, after perusing Section 166 application and after getting it dismissed, it cannot be converted into an application under Section 163(A) of the Act. Further, at the time of the accident, Section 163(A) was not applicable also. But, we are of the opinion that claim is maintainable under Section 140 of the Act for no fault liability. The accident occurred while the deceased was travelling in a taxi car (as can be seen from FIR) insured by the second respondent. While granting compensation under Section 140, there is no necessity to look into negligence, as it is a no fault liability. At the time of MFA 241/03 5 accident, Rs.25,000/- was the amount for no fault liability fixed for death. Therefore, the second respondent Insurance Company is directed to pay Rs.25,000/- as no fault liability to the dependents of the deceased Abdulla. The second respondent Insurance Company is directed to deposit Rs.25,000/- with interest at 7.5% from the date of application till its deposit. On deposit of the amount, the first appellant, widow of the deceased Abdulla, is allowed to withdraw the same. The appeal is, thus, partly allowed. (J.B.Koshy, Judge) 6th August, 2008 (K.P.Balachandran, Judge) tkv MFA 241/03 6 J.B.Koshy & K.P.Balachandran, JJ. --------------------------------- M.F.A.No.241 of 2003 --------------------------------- JUDGMENT 6th August, 2008