Allowed

Sivadas Alias Sivadasan v. Radhakrishnan

Kerala HC11 Dec 2018MACA/1812/2015

Case brief

AI extract

What is this about?

The Kerala High Court dismissed the Motor Accident Claims Appeal. Upholding the Tribunal's award under Section 163A for 5% permanent disability, the Court affirmed the liability of the Insurance Company over the vehicle owner and ordered payment of Rs. 59,600 with 9% interest.

What did the court decide?

Award of Rs. 59,600 by R5 with 9% interest set aside of direction to R1; appeal disposed of with costs to claimant.

Sivadas Alias Sivadasan Vs Radhakrishnan — Motor Accident Claims | Kerala HC (2018)

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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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TUESDAY ,THE 11TH DAY OF DECEMBER 2018 / 20TH AGRAHAYANA, 1940

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MACA.No. 1812 of 2015

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AGAINST THE AWARD IN OPMV 967/2005 of M.A.C.T OTTAPPALAM DATED 2303-2015

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APPELLANT/PETITIONER:

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SIVADAS ALIAS SIVADASAN, AGED 34 YEARS, S/O PONNUCHAMI, KIZHAKKEMURI, KANJIKKODE, PALAKKAD

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BY ADV. SRI.P.K.MOHANAN(PALAKKAD)

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RESPONDENTS/RESPONDENTS:

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1 RADHAKRISHNAN

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S/O KUNJUKUTTY, 12/603, ADUPPUKALAM, PO MENON PARA, PALAKKAD, PIN-678 621

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2 SURESHKUMAR S/O DANDAPANI, K .PUDUR, KANJIKODE POST, PALAKKAD,PIN-678 621

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3 NATIONAL INSURANCE CO.LTD, EAST FORT BUILDING CHITTOOR ROAD, PALAKKAD PIN-678 001

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4 GIROY THOMAS S/O THOMAS, MADASSERY VEEDU, ANGAMALI, MOOPPENNUR VILLAGE, PIN -683 572

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5 NATIONAL INSURANCE CO.LTD PALAKKAD PIN 678 001

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BY ADVS. SRI. ELDHO CHERIAN SRI.E.M.JOSEPH SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA.No. 1812 of 2015

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JUDGMENT

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This appeal is preferred against the award in O.P. (MV)No.967/2005 of the Motor Accidents Claims Tribunal, Ottapalam by the injured. On 13.02.2005 at 6 pm, appellant sustained injuries in a motor accident and the Tribunal awarded compensation of Rs.59,600/- under Section 163A of the Motor Vehicles Act, 1988. Being aggrieved by that, the injured preferred this appeal.

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The claimant's case in the lower court was that on 13.02.2005 at 6 pm, he was travelling in a motor cycle KL01T 7856, when he reached at Walayar out post on the Palakkad - Coimbatore NH road, the rider turned the motor cycle to the right side and hit behind another motor cycle HR 26J 0548 which was proceeding in the same direction. As a result, he sustained serious injuries. Immediately, he was removed to hospital. The accident was due to the rash and negligent driving of KL 01T 7856 by its rider. R1 is the owner and R3 is the insurer. R4 is the owner cum rider and R5 is the insurer of the other vehicle.

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The first respondent, owner denied the

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MACA.No. 1812 of 2015

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negligence of the offending vehicle. The second respondent was set ex-parte. The third respondent admitted the insurance of the vehicle, but contended that they have issued only act only policy and the pillion rider is not covered as per the policy. The fourth respondent was set ex-parte. The fifth respondent denied the insurance of the other vehicle. As per order dated 20.10.2009, the learned Tribunal dismissed the claim petition. Against that the appellant preferred MACA No.553/2010 before this court and the award of the Tribunal was set aside and remanded to lower court for fresh consideration. Thereafter, the injured was examined as PW1 and his documents were marked as Exts.A1 to A19. Respondents did not adduce any oral evidence.

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Sec.163A of the Motor Vehicles Act, 1988 (for short, 'MV Act' ) reads as follows:

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163A. Special provision 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 inforce or instrument having the force of law, the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.

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MACA.No. 1812 of 2015

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Explanation.- For the purposes of this sub-section, “ permanent disability” shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).

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(2) In any claim for compensation under Sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.

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(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.]

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The application under Sec.163A would be

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limited to only victims who had income upto Rs.40,000/- per annum and those victims who had income beyond Rs.40,000/per annum have to claim under Sec.166 of the Act. Sec.163-A is provided for the person having fixed income with an instant relief with low income upto Rs.40,000/- per annum. Persons with high income may also be equally needy, if they lose the bread-winner on calculating Rs.40,000/- per annum. Application under Sec.163-A is not tenable, if made by a person whose income exceeds Rs.40,000/- per annum. But, in case the person with the higher income notionally brings down his income to Rs.40,000/-, in order to present his claim

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MACA.No. 1812 of 2015

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under Sec. 163-A, the same can be permitted. In calculating the amount of compensation, the Court must lean to adopt the structured formula provided in the Second Schedule.

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6. Apex Court in United India Insurance Co. Ltd.

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v. Sunil Kumar [2017 (4) KLT 1093 (SC)] held as follows:

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“ 8. From the above discussion, it is clear that grant of compensation under S.163A of the Act on the basis of the structured formula is in the nature of a final award and the adjudication thereunder is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle(s) involved in the accident. This is made explicit by S.163A(2). Though the aforesaid section of the Act does not specifically exclude a possible defence of the Insurer based on the negligence of the claimant as contemplated by S.140(4), to permit such defence to be introduced by the Insurer and/or to understand the provisions of S.163A of the Act to be contemplating any such situation would go contrary to the very legislative object behind introduction of S.163A of the Act, namely, final compensation within a limited time frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability was taking an unduly long time. In fact, to understand S.163A of the Act to permit the Insurer to raise the defence of negligence would be to bring a proceeding under S.163A of the Act at par with the proceeding under S.166 of the Act which would not only be selfcontradictory but also defeat the very legislative intention. ”

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MACA.No. 1812 of 2015

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In Sunil Kumar's case (Supra) it was held that

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to permit a defence of negligence of the victim by the insurer under Sec.163A would be inconsistent with the legislative object behind introduction of this provision. If such permission is granted to take such defence of negligence under Sec.163A of the MV Act, it would be a proceeding equal to that of under Section 166 of the MV Act which would be self contradictory. Hence insurer cannot raise any defence of negligence on that part of victim under Sec.163A of the MV Act to counter the claim of compensation. Apex court in Shivaji and another v. the Divisional Manager, United India Insurance Co. Ltd., (2018 ACJ 2161) reiterated that the negligence is not a criterion for awarding compensation under Section 163A. Therefore, the claimant is entitled to get just compensation without considering the negligence.

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The learned Tribunal awarded the following amount as compensation.

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1.	Loss of earning (Total)	Rs.9,000/-
2.	Loss of earning (Partial)	----
3.	Medical and miscellaneous
	expenses	Rs.15,000/-
4.	Future treatment	Nil

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MACA.No. 1812 of 2015

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Bystander expense --6. Transportation expenses ---7. Extra nourishment ---8. Damage to clothing etc ---9. Pain and suffering Rs.5,000/10. Loss of disfiguration ----11. Loss of other expenses ----12. Loss of love and affection ----13. Loss of future prospects ---14. Loss of earning power ---15. Loss of enjoyment and amenities of life -----

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Compensation for continuing partial or permanent disability Rs.30,600/- Total Rs.59,600/-

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The appellant in this case sustained 5% permanent disability. The compensation indicated in the schedule was specifically followed by the Tribunal, therefore, no further interference in the award is warranted. Even though, the third respondent contended that the insurer had issued only liability policy, Ext.A7 shows that both vehicles are insured with the same company. Therefore, fifth respondent is liable to pay compensation of Rs.59,600/- (Rupees Fifty Nine Thousand Six Hundred only) with 9% interest from the date of petition till realisation with proportionate cost to the claimant.

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MACA.No. 1812 of 2015

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The direction to pay compensation by the first respondent

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with 9% is hereby set aside.

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This appeal is disposed of, as above.

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Sd/-

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