IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 28TH JUNE 2011 / 7TH ASHADHA 1933 MACA.No. 1803 of 2006() ----------------------- ( O.P.(MV)NO.1445/1998 OF PRINCIPAL MACT, KOZHIKODE) APPELLANT(S): APPELLANT/3RD RESPONDENT: --------------------------------------- NEW INDIA ASSURANCE COMPANY LTD., MGT BUILDING, KALPETTA (NORTH), WAYANAD, REPRSENTED BY ITS ADMINISTRATIVE OFFICER BY ADV. SRI.KKM.SHERIF RESPONDENTS/PETITIONERS 1 AND 2 AND RESPONDENTS 1 AND 2: ----------------------------------------------------------- 1. AYISHA M., W/O. SULAIMAN, MUNDARAYIL HOUSE, PULINKAVU, CHERUKARA POST, MALAPPURAM. 2. SHYJI, D/O. SULAIMAN, MUKNDARAYIL HOUSE, PULINKAVU, CHERUKARA POST, MALAPPURAM. 3. UMMER, S/O. BEERAN, PADAKKADU HOUSE, KAIPANCHERRY ROAD, SULHANBATHERY, WAYANAD. 4. M. SULAIMAN, MUNDARAYIL HOUSE, CHEETHAL POST, SULTHANBATHERY, WAYANAD. ADV. SRI.JACOB ABRAHAM FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/06/2011 ALONG WITH M.A.C.A.NO.1915/2006, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.Nos.1803 & 1915 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of June, 2011 JUDGMENT Basheer, J. A short, but very interesting legal question has cropped up in these two appeals filed by the insurer of a vehicle, which was involved in a road traffic accident. 2. An unfortunate father who is respondent No.4 in these two appeals was driving a jeep with his two minor sons. The jeep happened to capsize. While the unfortunate father escaped, his two sons died in the mishap. The mother and siblings of the two victims instituted two claim petitions before the Motor Accidents Claims Tribunal seeking compensation from the owner, driver and insurer of the vehicle. As has been mentioned earlier, the driver happened to be the father of the two victims. 3. The Tribunal after considering the documentary evidence available on record passed the impugned awards holding that the Insurance Company is liable to indemnify the owner of the vehicle and MACA.Nos. 1803/06 & 1915/06 2 pay compensation to the claimants. These two awards are under challenge in these appeals. 4. The legal question that has been raised by the appellant Insurance Company is rather novel. It is contended by the appellant that the father of the two victims being the tort feasor himself, and he also being one of the legal representatives of the deceased victims, the Tribunal ought to have deducted his share from the amount of compensation payable to the claimants. 5. The thrust of the argument of Sri.Ziyad Rahman, learned counsel for the appellant is that the tort feasor cannot take a share in the compensation that the estate of the deceased may be entitled to get, and walk away with impunity. Undoubtedly, respondent No.4, being a legal representative, would be entitled to get a share in the award. Learned counsel invites our attention to the provisions contained in Section 166 of the Act, particularly the proviso to Sub Section 1 which reads thus : Sec.166 - Application for compensation - (1) An application for compensation arising out of an accident of the nature specified in sub- section (1) of section 165 may be made - (a) by the person who has sustained the injury; or (b) by the owner of the property ; or MACA.Nos. 1803/06 & 1915/06 3 ( c) where death has resulted from the accident, by all or any of the legal representatives of the deceased ; or (d ) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be : Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application .(Emphasis supplied) 6. Learned counsel submits that the above proviso in unambiguous terms makes it mandatory that the application for compensation shall be made on behalf of or for the benefit of all the legal representatives of those deceased and the legal representatives who have not so joined shall be impleaded as respondents to the application. 7. Before we deal with the above contention, it is pertinent to note that the mother and the other siblings of the deceased minor victims, have claimed compensation for the loss or damage sustained by them due to the death of the two victims. In other words, they have not claimed compensation for and on behalf of or for the benefit of the MACA.Nos. 1803/06 & 1915/06 4 other legal representative, who obviously is the father. Of course, as has been mentioned earlier, the father who was unfortunately driving the vehicle was on the party array before the Tribunal as respondent No.2. It is true that he did not stake any claim for a share in the compensation which may ultimately have been awarded. The said allegation against him was that the accident occurred due to his negligence. Of course, he denied the said allegation. Nevertheless, the Tribunal found that the accident occurred because of his rash and negligent driving. Since there was a valid policy in respect of the vehicle, the Tribunal mulcted the Insurance Company with the liability to pay the compensation. 8. The contention of the learned counsel for the appellant is that the father of the two victims himself is the tort feasor. Even if he has not claimed any compensation on his own, either by filing a separate petition or in the same proceedings in which he is a party, it has to be deemed that he would also be entitled to get his share in the amount of compensation awarded by the Tribunal. Learned counsel contends that the proportionate share that the father may get under the personal law has to be necessarily deducted and the claimants ought to MACA.Nos. 1803/06 & 1915/06 5 be paid only the remaining portion of the award. We are unable to agree. 9. It is true that the proviso to Sub Section 1 of Section 166 of the Act postulates that application for compensation shall be made on behalf of or for the benefit of all the legal representatives of the deceased where death has resulted from the accident. This is obviously to avoid multiplicity of litigation. The claimants in these two cases have sought compensation for the loss sustained by them due to the death of their dear ones. Sub Clause ( C) of Sub Section (1) enables any or all of the legal representatives of the deceased to institute a claim petition. We hasten to add that we are not oblivious of the proviso to sub section (1). The said proviso of course mandates that the application for compensation shall be made on behalf of or for the benefit of all the legal representatives of the deceased and those legal representatives who have not so joined shall be impleaded as respondents to the application. 10. In the case on hand, the remaining legal representative namely the father of the deceased victims, was on the party array. As has been noticed already, he did not claim any share in the MACA.Nos. 1803/06 & 1915/06 6 compensation. If in fact, he wanted a share in the amount of compensation, nothing precluded or prevented him from making such a claim. Since he has not staked any such claim, it cannot be said that it shall be presumed or deemed that the award passed by the Tribunal includes his share as well. Such an assumption is too far fetched and wholly hypothetical, to say the least. More importantly, the appellant did not raise such a contention before the Tribunal. Even assuming the award includes the share of respondent No.4, the father of the victims, we are unable to accept the above contention in view of the scheme enunciated in Chapter XI of the Act. In any view of the matter, we do not find any merit in the contentions raised by the appellant. The appeals fail and they are accordingly dismissed. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.Nos. 1803/06 & 1915/06 7 MACA.Nos. 1803/06 & 1915/06 8