IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 9^TH DAY OF MARCH 2022 / 18TH PHALGUNA, 1943 MACA NO. 2815 OF 2012 AGAINST THE ORDER/JUDGMENT IN OPMV 2086/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,TRIVANDRUM APPELLANT/S:

1 NALINAKSHAN, S/O. NARAYANAN, CHARIVILAKATHU VEEDU, T.C. 14/1229, PADINJATTIL LANE, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM.

2 SANTHA S., W/O. NALINAKSHAN, CHARIVILAKATHU VEEDU, T.C. 14/1229, PADINJATTIL LANE, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM.

3 SHIJU, S/O. NALINAKSHAN, CHARIVILAKATHU VEEDU, T.C.

14/1229, PADINJATTIL LANE, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM.

BY ADVS.

SRI.GRASHIOUS KURIAKOSE (SR.)

SRI.GEORGE MATHEWS RESPONDENT/S:

1 VISHNU BALACHANDRAN, S/O. BALACHANDRAN, T.C.

1/2135, GOPALAM, NEAR C.G.HOSPITAL, PATTOM, THIRUVANANTHAPURAM, PIN-695004.

2 THE UNITED INDIA ASSURANCE COMPANY LTD.

DIVISIONAL OFFICE, MALANKARA BUILDING, PALAYAM, THIRUVANANTHAPURAM, PIN-695001.

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

The appellants were the petitioners in OP(MV)

No.2086/2003 on the file of the Motor Accidents Claims Tribunal, Thiruvananthapuram. The respondents in the appeal were the respondents before the Tribunal.

2. The appellants had filed the claim petition under Section 163 A of the Motor Vehicles Act, 1988 (in short, “Act”), claiming compensation on account of the death of Shibu (deceased) - son of the appellants 1 and 2 and brother of the 3^rd appellant. It was their case that, on 01.12.2003, while the deceased was riding a motor cycle bearing registration No.KL 01 AC 6026 along with his friend Baiju on the pillion through the Palayam – Kesavadasapuram road, when they reached Plamoodu junction, the motor cycle hit against a wall. Both the deceased and the pillion rider sustained serious injuries. Even though the deceased was treated at the Medical College Hospital, Thiruvananthapuram, he lost his life on

01.12.2003. The deceased was a tourist guide and he was earning a monthly income of Rs.3,000/-. The motor cycle was owned by the 1^st respondent and was insured with the 2^nd respondent. The appellants were the dependents and the legal heirs of the deceased. Hence, they claimed a compensation of Rs.6,00,500/- from the respondents, which claim was limited to Rs.5,00,000/-.

3. The 1^st respondent did not contest the proceeding and was set ex-parte.

4. The 2^nd respondent had filed a written statement, inter-alia, denying the allegations in the claim petition. It was stated that the accident was caused by a car, which hit the motorcycle from behind. Therefore, it was the driver, owner and insurer of the car, who were liable to pay the compensation amount. It was also stated that the compensation claimed was highly excessive.

5. The appellants produced and marked Exts.A1 to A7 in evidence. The 2^nd respondent produced the insurance policy which was marked as Ext.B1.

6. The Tribunal after interpreting Section 163 A of the Act, arrived at a conclusion that, as the deceased had stepped into the shoes of the owner of the motor cycle, the appellants were not entitled to compensation under Section 163 A. The Tribunal also considered the question whether the appellants were entitled to the personal accident cover under the insurance policy, but answered the question also in the negative on the ground that the deceased was neither the registered owner nor the insured named in the policy. Therefore, the appellants were also not entitled to the personal accident cover. 7. Aggrieved by the dismissal of the claim petition, the petitioners are in appeal.

8. Heard; Sri. George Mathews, the learned counsel appearing for the appellant/petitioner and Sri.P.K. Manojkumar, the learned counsel appearing for the 2^nd respondent/insurer.

9. The learned counsel appearing for the appellants placed strong reliance on paragraph 9.8 of the decision of the Honourable Supre