Remanded

National Insurance Co.Ltd v. Kunjumon T M

Kerala HC13 Sept 2017MACA/1921/2009

Case brief

AI extract

What is this about?

The Kerala High Court allowed an appeal against an award by the Motor Accidents Claims Tribunal. The Court set aside the lower tribunal's finding regarding separate insurance liability and remitted the matter for fresh consideration on the issue of contributory negligence, citing the need for cogent evidence.

What did the court decide?

The finding of the Motor Accidents Claims Tribunal was set aside, and the matter was remanded for fresh consideration.

National Insurance Co.Ltd Vs Kunjumon T M — Motor Accident Claims | Kerala HC (2017)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE P.D.RAJAN

¶4

WEDNESDAY, THE 13TH DAY OF SEPTEMBER 2017/22ND BHADRA, 1939

¶5

MACA.No. 1921 of 2009 ( )

¶6

AGAINST THE AWARD IN OPMV 598/2003 of MACT,PATHANAMTHITTA DATED 06-12-2008

¶7

APPELLANT(S)/2ND RESPONDENT:

¶8

NATIONAL INSURANCE CO. LTD., PATHANAMTHITTA.

¶9

BY ADV. SRI.RAJAN P.KALIYATH

¶10

RESPONDENT(S)/CLAIMANT AND R1,3,4:

¶11

1. KUNJUMON.T.M., AGED 36, THOTTIYIL VEEDU, KOTTOOR POST, KAVIYOOR,, THIRUVALLA.

¶12

2. G.DAMODHARAN, KURUPPANPARAMBIL PALIYEKKARA, THIRUVALLA.

¶13

3. ORIENTAL INSURANCE CO. LTD., THIRUVALLA.

¶14

R,R3 BY ADV. SRI.A.R.GEORGE R,R1 BY ADV. SRI.SAJJU.S R,R1 BY ADV. SRI. K.SHAJ

¶15

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶16

acd

¶17

P.D.RAJAN, J.

¶18

M.A.C.A.No.1921 of 2009

¶19

Dated this the 13^th day of September, 2017

¶20

JUDGMENT

¶21

This appeal is preferred against the award in O.P.(MV)No.598/2003 of Motor Accidents Claims Tribunal (for short MACT), Pathanamthitta by the insurer of a bus (KRB 441) involved in the accident. The above petition was filed by the driver of an autorickshaw KL3A 1713 who met with an accident on 3.3.2003 at 3.20 p.m infront of Chilanka theatre at Thiruvalla. The learned tribunal awarded ₹47,598/- as compensation with interest and cost and also observed that insurers of both vehicles are directed to deposit 50% of the compensation amount equally to the claimant. Being aggrieved by that, the insurer of the stage carriage preferred this appeal.

¶22

The injured in this case was the driver of an autorickshaw KL3A 1713, who was proceeding through Thiruvalla-Mallapally road from east to west. When he reached in front of Chilanka theatre, another bus KRB 441

¶23

M.A.C.A.No.1921/2009 2

¶24

driven in a rash and negligent manner hit against the autorickshaw, as a result the driver of the autorickshaw sustained serious injuries. The owner and driver of both vehicles were set ex parte in the lower court. The appellant, who is the insurer of the stage carriage admitted the insurance of the bus but denied the liability. The insurer of the autorickshaw also admitted the insurance but they also denied the liability. The claimant did not adduce any oral evidence, but his documents were marked as Exts.A1 to A9. The respondents also did not adduce any evidence. With regard to the accident, Thiruvalla Police registered a crime. Ext.A1 is the FIR. Ext.A2 is the scene mahazhar. Ext.A3 is the copy of the final report. Ext.A5 is the wound certificate. Ext.A6 is the discharge card. Ext.A7 is the disability certificate. Ext.A9 is another disability certificate. Ext.A8 series are medical bills. It is pertinent to note that u/s.163A of the M.V. Act, special provision has been made for payment of compensation on structured formula basis. Apex Court in

¶25

M.A.C.A.No.1921/2009

¶26

¶27

Oriental Insurance Co. Ltd. v. Dhanbai Kanji Gadhvi and Ors .

¶28

[AIR 2011 SC 1138] held that the remedy for payment of compensation both u/s.163A and 166 is final and independent of each other as statutorily provided. In a motor accident, a claimant cannot pursue both these remedies thereunder simultaneously and he must elect to go either for a proceeding u/s.163A or under S.166 of the Act, but not under both. Section 163A reads as follows:

¶29

“163A. Special provisions as to payment of compensation on structured formula basis.- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicles, compensation, as indicated in the Second Schedule, the legal heirs of the victim as the case may be.”

¶30

Therefore, a reading of the Section shows that the owner of the motor vehicle or authorised insurer shall be liable to pay in case of death or permanent disablement due to the accident arising out of the use of motor vehicle, compensation, as indicated in the second schedule to the

¶31

M.A.C.A.No.1921/2009

¶32

¶33

legal heirs or the victim, as the case may be. Apex Court in

¶34

National Insurance Company v. Sinitha [2011 (4) KLT 821 (SC)] held that Section 163A is founded on the fault liability principle, in which in paragraph 17 reads as follows:

¶35

“A person may be “responsible” for an act, yet he may not be “negligent”. Illustratively, a child who suddenly runs onto a road may be “responsible” for an accident. But was the child negligent? The answer to this question would emerge by unraveling the factual position. A child incapable of fending for himself would certainly not be negligent, even if he suddenly runs onto a road. The person in whose care the child was, at the relevant juncture, would be negligent, in such an eventuality. The driver at the wheels at the time of the accident is responsible for the accident, just because he was driving the vehicle, which was involved in the accident. But considering the limited facts disclosed in the illustration can it be said that he was negligent? Applying the limited facts depicted in the illustration, it would emerge that he may not have been negligent. Negligence is a factual issue and can only be established through cogent evidence.”

¶36

Here, police record shows that the driver of the autorickshaw

¶37

was rash and negligent for the accident. If that be the position, learned tribunal directed the (2^nd and 4^th respondent in O.P.(M.V)) insurers to deposit 50% of the amount each, which is unsustainable in law. Apex Court in

¶38

M.A.C.A.No.1921/2009

¶39

¶40

Meeradevi and Anr. v. H.R.T.C. and Ors. [2014 ACJ 1012] held

¶41

that there must be cogent evidence necessary with regard to contributory negligence of both vehicles.

¶42

In the light of the above observation made by the Apex

¶43

Court, the finding of the motor accident claims tribunal, Pathanamthitta is set aside and the matter is remitted to the tribunal for fresh consideration as per law. Both parties are at liberty to adduce fresh evidence in this matter. They are directed to appear before the Motor Accidents Claims Tribunal, Pathanamthitta on 30.10.2017.

¶44

P.D.RAJAN, JUDGE.

¶45

acd

National Insurance Co.Ltd v. Kunjumon T M

Case brief

What is this about?

What did the court decide?

National Insurance Co.Ltd v. Kunjumon T M

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ajikumar Vs the New India Insurance Company

P.Praveen Vs Devaraj

Dolly Daison Vs the Managing Director, Ksrtc

Punjab National Bank Vs Manappuramgeneral Finance & Leasing Limited

Achamma Vs the Divisional Manager, the Oriental Insurance Co. Ltd.

Sahayam Vs Ksl Anyang