IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 16TH AUGUST 2010 / 25TH SRAVANA 1932 MACA.No. 1853 of 2005() ----------------------- OPMV.421/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT/FOURTH RESPONDENT ----------------------------------------- NATIONAL INSURANCE CO. LTD., CALICUT, DO-II, P.B.NO.811, NOOR COMPLEX, MAVOOR ROAD, NEAR ARAYIDATHPALAM, CALICUT- 673004. BY ADV. SRI.RAJAN P.KALIYATH & SMT.P.K.PRATHIBHA RESPONDENT(S): CLAIMANTS 1 TO 6 AND R1, R2 & R3 ------------------------ 1. MOHAMMED ALI, AGED 31 YEARS, RESIDING AT ALAYAN HOUSE, VATTAPARAMBA, P.O.THANKARA, 678 761. 2. MOHAMMED TAHA, AGED 26 YEARS, RESIDING AT ALAYAN HOUSE, VATTAPARAMBA, P.O.THANKARA, 678 761. 3. ABDUL SALEEM, AGED 22 YEARS, ALAYAN HOUSE, VATTAPARAMBA, P.O.THENKARA,678761. 4. SAFIYA, AGED 20 YEARS, ALAYAN HOUSE, VATTAPARAMBA, P.O.THENKARA,678761. 5. SHEREENA, AGED 18 YEARS, CHILDREN OF LATE MOOSA, RESIDING AT ALAYAN HOUSE, VATTAPARAMBA, P.O.THENKARA, 678761. 6. PATHUMAKUTTY, W/O.LATE MOOSA, AGED 48 YEARS, RESIDING AT ALAYAN HOUSE, VATTAPARAMBA, P.O.THENKARA, 678 761. 7. VIJAYAKUMAR, S/O.APPU NAIR, KALATHIL HOUSE, IRINGALLUR, VENGARA.P.O, MALAPPURAM DISTRICT. 8. K.SAIDALAVI, S/O.IBRAHIM, KIZHAKKETHIL HOUSE, CHENGALLUR.P.O, KOTTAKKAL, MALAPPURAM DISTRICT. 9. UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, HOSPITAL JUNCTION, MANARKAD. ADV. SRI.P.N.PURUSHOTHAMA KAIMAL FOR R1 TO 6 SRI.ABLE ABRAHAM FOR R1 TO 6 SRI.A.KRISHNAN FOR R8 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16/08/2010 ALONG WITH MACA NO. 608 OF 2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 1853 of 2005 & 608 of 2007 ------------------------------------------------------ Dated: AUGUST 16, 2010 JUDGMENT Basheer, J. These two appeals filed by the Insurance Company are being disposed of by this common judgment since they are in relation to the same motor accident which occurred on October 6, 2001. 2. Two claim petitions were laid; one by the legal heirs of the deceased victim, and the other by the injured. The appellant Insurance Company admitted the policy coverage in respect of the offending vehicle; but denied the allegation of negligence attributed against the driver of the vehicle. The Tribunal after considering the evidence adduced by the claimants found that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle. 3. In the claim petition filed by the legal heirs of the deceased victim, the Tribunal found that they were entitled to get a sum of Rs.2 lakhs as compensation from the appellant with 6% interest thereon. M.A.C.A.1853/2005 is directed against the above award. 4. In the other claim petition filed by the injured, the Tribunal held that the claimant would be entitled to get Rs.15718/- as M.A.C.A. 1853 of 2005 & 608 of 2007 2 compensation. MACA 608/2007 is filed by the appellant challenging the above award. 5. It is not in dispute that the two victims were knocked down by the offending vehicle while they were walking along the road margin. One of the victims succumbed to the injuries, while the other got away with some injuries. 6. It is contended by the learned counsel for the common appellant/Insurance Company that the alleged accident was not, in fact, an accident pure and simple as contended by the owner and driver of the vehicle. According to the appellant it was a deliberate attempt to commit murder and not an accident at all. But it is significant to note that such a contention was never raised by the appellant before the Tribunal. 7. It may be true that the police had registered a crime against the driver of the vehicle for offences punishable under sections 324, 304, 201 and 109 read with Section 34 of IPC, but that does not mean that the contention now raised by the appellant at this belated stage should be accepted by this Court, especially in a claim made under Section 166 of the Motor Vehicles Act. Even assuming it was a deliberate attempt on the part of the driver of the offending vehicle to commit the crime as now alleged by the appellant, the remedy of the M.A.C.A. 1853 of 2005 & 608 of 2007 3 Insurance Company lies elsewhere. The scheme of the Act envisaged under Chapter 12 of the Motor Vehicles Act will be defeated if such a contention is accepted, especially in a claim petition filed by the victims/third parties of the accident. If, in fact, the Insurance Company has a case that it is not liable to indemnify the insured, it will be open to the Insurance Company to pursue its remedy in accordance with law. In any view of the matter, based on the facts available in this case, we are not persuaded to accept the plea now raised by the appellant that it was not a road traffic accident, but a deliberate attempt to commit culpable homicide. It is brought to our notice that the driver of the offending vehicle and four others who were tried in the criminal case for the offences referred to above, have been acquitted by the Assistant Sessions Court, Ottappalm in S.C.No.150/2003. Therefore the contentions now raised by the appellant are repelled. The appeals are dismissed. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-