IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 14TH DECEMBER 2009 / 23RD AGRAHAYANA 1931 MACA.No. 291 of 2007() ---------------------- OPMV.482/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT(S): APPELLANT: ----------------- THE NEW INDIA ASSURANCE COMPANY LTD., CHITTOOR NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G. ROAD, KOCHI-11. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENT(S): --------------- 1. AMMU, W/O.MAYAN, KAVUMBKULAMTHODU VEEDU, VADAVANNUR P.O., CHITTOOR TALUK. 2. MADHURAKUTTY, W/O.LATE CHANDRAN, DO. DO. 3. ANEESH, S/O.LATE CHANDRAN, DO. DO. 4. AJEESH, S/O.LATE CHANDRAN, DO. DO. 5. ANIL (MINOR), S/O.LATE CHANDRAN, REPRESENTED BY HIS MOTHER 2ND RESPONDENT. BY ADV. SRI.C.RAGHAVAN FOR R1 TO R5 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.R.RAMACHANDRA MENON, JJ. ------------------------------- M.A.C.A.No.291 of 2007 ------------------------------- Dated this the 14th December, 2009 J U D G M E N T Ramachandra Menon, J. This appeal has been preferred by the Insurer of one of the motor cycles, KL-7Z/641. The compensation was awarded by the Tribunal in respect of the death of the rider under Section 163A of the Motor Vehicles Act. The accident occurred on 8.4.2003 at about 3 p.m. The deceased Chandran (whose claim is exposed in the present appeal) was riding the motor cycle bearing No. KL-9L/175, and when he reached the spot of accident, another motor cycle bearing Registration No.KL- 7Z/641, coming from the opposite direction, dashed against the vehicle of the deceased, leading to the death of both riders, as also causing injuries to both the pillion riders, which led to separate claim petitions, which were tried jointly. But for the MACA.No.291 of 2007 2 case preferred by the legal heirs of the deceased Chandran involved in this appeal under Section 163A of the Motor Vehicles Act, all the other cases were preferred under Section 166 of the Motor Vehicles Act. In the other three cases, as mentioned above, i.e., O.P.(M.V.) Nos. 930, 933 and 941 of 2003, based on the evidence adduced, the Tribunal arrived at a finding that the accident was only because of the rash and negligent riding by the rider of the motor cycle bearing Registration No.KL-9L/175, i.e., the deceased in the present case. 2. Coming to the instant case, the Tribunal held that the total compensation payable to the legal heirs of the deceased Chandran was Rs.2,68,700/-, which was directed to be paid by the appellant insurer with interest at the rate of 6% per annum, besides the cost of Rs.5000/- awarded. The case projected by the appellant-Insurer in this appeal is that the monthly income of the deceased Chandran, as admitted by the claimants before the Tribunal was Rs.4,195/- (excluding the bonus) derived by him, as a result of his employment as a MACA.No.291 of 2007 3 Secretary in a milk society. It is contended, placing reliance on the decision of the Apex Court reported in Deepal Girishbai Soni v. United India Insurance Company Ltd. (2004 (2) KLT 395) that the admitted income of the deceased being more than Rs.40,000/-, the claim was not maintainable under Section 163A. The appellant has also got several other contentions on merits as well. 3. Heard both the sides. The basic issue involved in this appeal is whether the claim petition preferred under Section 163A could have been entertained by the Tribunal in the above circumstance. The second point is whether such a liability could have been mulcted on the shoulders of the insurer, in respect of the self-invited accident by the rider. 4. The Law is now well settled by virtue of the decision rendered by the Apex Court, cited supra, that the benefit under Section 163A is intended for the benefit of a particular class of society whose annual income never exceeds Rs.40,000/-. It has also been specifically made clear by the MACA.No.291 of 2007 4 Apex Court that the annual income could not be reduced by fixing a cap or ceiling by the Tribunal, so as to enable the parties to siphon out the benefit under Section 163A, if they do not actually come within the purview of the said provision. 5. In the instant case, admittedly, the monthly income of the deceased was Rs.4,195/-, which means the annual income was much more than Rs.40,000/-. In view of the declaration of Law by the Apex Court holding that all other cases, in respect of persons who are having annual income of Rs.40,000/- or above, are to be entertained only under Chapter XII of the Motor Vehicles Act, the Award passed by the Tribunal granting compensation in the instant case, in respect of a person who was having an admitted annual income of Rs.40,000/- runs contrary to the mandate given by the Apex Court. 6. In the above circumstances, the impugned award can no longer exist and accordingly, we set aside the same and the findings are vacated. The appellant/Insurer is permitted to get back the amount deposited before the Tribunal, MACA.No.291 of 2007 5 as a pre-condition for filing the appeal. We, however, make it clear that the appellant will not be entitled to pursue any steps to recover the amount, if the amount in deposit has already been disbursed to the claimants, pursuant to the interim order dated 20.2.2007 passed by this Court in I.A.No.389/07, while admitting the appeal. The appeal is allowed as above. No cost. P.R.RAMAN, JUDGE P.R.RAMACHANDRA MENON, JUDGE. nj.