Allowed

National Insurance Co.Ltd v. K.Krishnan

Kerala HC2 Feb 2009MACA/761/2005

Case brief

AI extract

What is this about?

Appeal against an award under Section 140 of the Motor Vehicles Act in a death case where the claimant had filed under Section 163A. The Court held that once Section 163A is invoked, the Tribunal cannot entertain Section 140. The award was set aside and the matter remitted to consider the Section 163A application.

What did the court decide?

The award u/s 140 of the M.V.Act is set aside and the matter remitted to the Tribunal for consideration of the application u/s 163A of the M.V.Act.

National Insurance Co.Ltd Vs K.Krishnan — Motor Accident Claims | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE M.N.KRISHNAN

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MONDAY, THE 2ND FEBRUARY 2009 / 13TH MAGHA 1930

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MACA.No. 761 of 2005(G)

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-------------------------------OPMV.1608/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI

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APPELLANT(S): /3RD RESPONDENT

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--------------------------------------

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NATIONAL INSURANCE COMPANY LTD., MANJERI

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BY ADV. SRI.RAJAN P.KALIYATH

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RESPONDENT(S): CLAIMANTS 1 TO 6 AND R1 AND 2,4,5

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-----------------------------------------------------------------

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1. K.KRISHNAN, S/O.KUNDU, PUTHANPURACKAL HOUSE, P.O. PAYYANAD, MANJERI, FATHER OF THE DECEASED.

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2. K.SARADA, W/O.K.KRISHNAN, MOTHER OF THE DECEASED.

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3. C.KARTHIKEYAN, S/O.CHINNAN, CHIRAKATHODI HOUSE P.O., CHUNGATHARA, HUSBAND OF THE DECEASED.

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4. C.NIDHIN, S/O.C.KARTHIKEYAN (MINOR) DO. MINORS

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5. C.JIDHIN, S/O.C.KARTHIKEYAN (MINOR) DO.DO.

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6. C.SUDHIN, S/O.C.KARTHIKEYAN(MINOR), DO.DO.

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7. P.ASHOKAN, S/O.GOVINDAN, PIKADAN HOUSE, P.O.VANIYAMBALAM, DRIVER. (MINORS REP. BY THE 3RD RESPONDENT FATHER)

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8. T.R.NARAYANAN, S/O.RAMAN, "CHITHRA", CALICUT ROAD, P.O.MANJERI, (OWNER).

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9. G.ROBBIN, S/O.GEORGE, DANIYAL, KUNNAKKATTIL HOUSE, P.O.CHUNGATHARA, OWNER CUM DRIVER.

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10. NEW INDIA ASSURANCE COMPANY LTD., MANJERI.

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ADV. SRI.M.P.PRAKASH FOR R1 TO 6 SRI.A.C.DEVY FOR R10

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 761 OF 2005 = = = = = = = = = = = = = = = Dated this the 2^nd day of February, 2009

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J U D G M E N T

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This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Manjeri in O.P.(MV)1608/00. The insurance company has come up in appeal. I am inclined to entertain this appeal mainly for the reason that there is miscarriage of justice by passing a wrong order u/s 140 of the M.V. Act. The legal representatives of deceased Latha has filed an application u/s 163-A of the M.V. Act for compensation. It appears that the Claims Tribunal passed an award u/s 140 of the M.V.Act and subsequently when the main petition came up for consideration dismissed the application on the ground that since the award u/s 140 is passed the main application may not be maintainable. I feel it is a total erroneous approach. When an application is moved u/s 163A of the M.V.Act it was the duty of the Tribunal not to entertain an application u/s 140 of the M.V.Act. It has to be understood that both u/s 163A and

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M.A.C.A. 761 OF 2005

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-:2:-

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140 the common factor is no fault liability. That is, while considering matters u/s 163A or 140 the Tribunal is not called upon to entertain or consider the question of negligence regarding the accident. But it has to be understood S.140 is an application which is normally made in an application filed u/s 166 of the M.V.Act for passing a preliminary award. The said provision was introduced as S.92A of the old M.V.Act of 1939 deviating from the common law principle of tortious liability and to hold that irrespective of the question of negligence a person is entitled to compensation when he comes within the four corners of S.142 of the M.V.Act. By virtue of the amendment to the M.V.Act 1988 a fresh provision was introduced known as S.163A. That Section deals with final disposal of the case when it is filed without looking into the question of fault. But that Section also makes very clear that it can be only done in cases where there is death or permanent disability as defined under Explanation to S.163A of the M.V.Act. So when an application is filed u/s 163A, the Tribunal is not at all

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M.A.C.A. 761 OF 2005 -:3:-

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competent to consider a petition u/s 140 of the M.V.Act and after having committed a mistake it should not fall back on the same and dismiss the claim application.

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Learned counsel for the claimant made it very clear that their claim is under Section 163A. Therefore the award passed by the Tribunal is set aside and the matter is remitted back to the Tribunal with a direction to consider the application u/s 163A of the M.V.Act. If any compensation is awarded earlier mistakenly u/s 140 of the M.V.Act, let that also be considered and appropriate direction for adjustment, reimbursement etc. may be given in the award. The question of apportionment, if any, also may be considered by the Tribunal. The parties are directed to appear before the Tribunal on 16.3.09.

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The MACA is disposed of accordingly.

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M.N. KRISHNAN, JUDGE.

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ul/-

National Insurance Co.Ltd v. K.Krishnan

Case brief

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National Insurance Co.Ltd v. K.Krishnan

Case brief

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