Allowed

Nandakumar v. Sakeer

Kerala HC15 Sept 2017MACA/739/2016

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the motor accident appeal filed by an injured party. The court upheld the Tribunal's dismissal of the claim, ruling that fault-based Section 163A offers no compensation for self-inflicted negligence. However, it set aside the Tribunal's cost award against the insurance company.

What did the court decide?

The appeal is allowed; the dismissal of the claim before the Tribunal is upheld; the cost order against the insurance company is set aside.

Nandakumar Vs Sakeer — Motor Accident Claims | Kerala HC (2017)

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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 P.D.RAJAN

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FRIDAY, THE 15TH DAY OF SEPTEMBER 2017/24TH BHADRA, 1939

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MACA.NO. 739 OF 2016 ()

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AGAINST THE AWARD IN O.P.(M.V.) NO.291/2014 OF THE PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE DATED 13-10-2015

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APPELLANT(S)/PETITIONER:

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NANDAKUMAR, AGED 38 YEARS, S/O.NARAYANAN (LATE), RESIDING AT KOOTTAYI PARAMBA HOUSE, KACHERIKKUNNU P.O., POKKUNNU, KOZHIKODE.

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BY ADV. SRI.A.V.M.SALAHUDIN

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RESPONDENT(S)/RESPONDENTS:

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1. SAKEER, AGED 26 YEARS, S/O.MUHAMMED, RESIDING AT MELAYIL HOUSE, 1/651, G.A.COLLEGE, P.O.IRINGALLOOR, KOZHIKODE.

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2. NATIONAL INSURANCE CO.LTD., 2ND FLOOR, NOOR COMPLEX, NEAR SBT, ARAYADATHUPALAM, MAVOOR ROAD, KOZHIKODE-673 001, REPRESENTED BY BRANCH MANAGER.

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R1 BY ADVS. SRI.T.MADHU

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SRI.M.RAGHUKUMAR BY SRI.M.A.GEORGE R2 BY ADVS.SRI.P.JACOB MATHEW SMT.PREETHY R. NAIR

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.D. RAJAN, J.

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

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M.A.C.A. No.739 of 2016

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Dated this the 15^th day of September , 2017

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J U D G M E N T

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This appeal is preferred by the injured against

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the dismissal of O.P.(M.V.) No.291 of 2014 of the Principal Motor Accidents Claims Tribunal, Kozhikode. The appellant's case is that on 24.11.2012 at 3.15 p.m., while he was riding a motorcycle bearing Registration No.KL-11-AG-6027 along the Palazhi-Kovoor MLA road and when he reached at Ummalathoor, a mini lorry bearing Registration No.KL-10-AB-3537 driven by the 1^st respondent in a rash and negligent manner hit against his motor cycle and he sustained serious injuries. Immediately he was removed to hospital. In the trial court, the appellant contended that the accident was due to the negligence of R1, the driver of the mini lorry.

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The 1^st respondent filed a written statement denying the negligence attributed against him and contended that the petitioner himself was riding the motorcycle in a rash and negligent manner and the

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M.A.C.A. No.739 of 2016 2

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accident occurred. The insurance company also denied the negligence of the 1^st respondent. To substantiate the above contention, the petitioner produced Exts.A1 to A3 in the trial court. Ext.B1 was marked from the side of the insurance company. Ext.C1, disability certificate is the court exhibit and Ext.X1 Medical report is marked as witness exhibits. Both parties did not adduce any oral evidence in the trial court. After perusing the documentary evidence, the learned tribunal found that the accident was occurred due to the negligence of the appellant himself. Moreover, it was observed that the appellant failed to prove the involvement of the mini lorry in the accident. Therefore, the tribunal held that the claimant is not entitled to get any compensation and dismissed the application with cost of Rs.10,000/- to the 2^nd respondent for falsely implicating him as a party in the above proceedings.

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It is true that the injured in a motor accidents claim petition is entitled to get just amount as compensation provided he has to prove that he sustained injuries in that motor accident. Apex Court in National

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M.A.C.A. No.739 of 2016 3

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Insurance Co. Ltd. v. Sinitha 2011 (4) KLT 821 it was held that the injured who is rash and negligent is not entitled to get compensation under Section 163A of the Motor Vehicles Act. Sec.163A is founded on the fault liability. It is open to an owner or insurer to defeat a claim raised under Sec.163A by pleading and establishing any one of three “faults” namely “wrongful act”, “neglect” or “default”. Since the appellant sustained injury for the negligent act of himself while driving the vehicle, he is not entitled to get any compensation under Sec.163A as no insurance policy was issued to such coverage. Therefore, the dismissal of O.P.(M.V.) No.291 of 2014 of the Principal Motor Accidents Claims Tribunal, Kozhikode is upheld, but considering the facts and circumstances, the direction of the tribunal to pay cost of Rs.10,000/(Rupees ten thousand only) to the 2^nd respondent is hereby set aside.

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This appeal is disposed of as above.

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Sd/- P.D. RAJAN, JUDGE / True Copy /

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P.A. To Judge

Nandakumar v. Sakeer

Case brief

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Nandakumar v. Sakeer

Case brief

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