Remanded

A.Vijayakumar v. Natarajan

Kerala HC16 Oct 2018MACA/1863/2018

Case brief

AI extract

What is this about?

Appellant appealed against a meagre compensation award of Rs.17,000 by the Motor Accidents Claims Tribunal under Section 163A. The High Court set aside the award, holding it arbitrary and not in line with the structured formula, and remitted the matter for fresh consideration within two months.

What did the court decide?

Impugned award set aside; matter remitted to Tribunal for fresh consideration within two months of appearance on 10.12.2018.

A.Vijayakumar Vs Natarajan — Motor Accident Claims | Kerala HC (2018)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE P.D.RAJAN

¶4

TUESDAY ,THE 16TH DAY OF OCTOBER 2018 / 24TH ASWINA, 1940

¶5

MACA.NO. 1863 OF 2018

¶6

AGAINST THE AWARD IN O.P.(M.V.) NO.1252/2012 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THIRUVANANTHAPURAM DATED 20-11-2017

¶7

APPELLANT/PETITIONER :

¶8

A.VIJAYAKUMAR, S/O KUNJULEKSHMI, LEKSHMI NIVAS, PARAVILA, PACHALLOOR, THIRUVATTOM, THIRUVANANTHAPURAM.

¶9

BY ADVS. SRI.G.SUDHEER

¶10

SMT.N.P.ASHA

¶11

RESPONDENTS/RESPONDENTS :

¶12

1 NATARAJAN, S/O SUBBAYYA PILLAI, TC.39/1855(2), GNRA(A), KURIYATHY, MANACAUD P.O, THIRUVANANTHAPURAM, PIN-695001.

¶13

2 SREEJITH BABU, S/O BABU, LAKSHMI BHAVAN, AKARATHI VILLA, THALAYAL, BALARAMAPURAM P.O., THIRUVANANTHAPURAM, PIN-695507.

¶14

3 THE NEW INDIA INSURANCE CO. LTD. PALAYAM, THIRUVANANTHAPURAM, PIN-695 506.

¶15

4 VILASINI, W/O SASIKUMAR, CHARUVILA PUTHEN VEEDU VAZHAMUTTOM, PACHALLOOR P.O., THIRUVANANTHAPURAM. -PIN 695027.

¶16

5 MANOJ, S/O SASIKUMAR, CHARUVILA PUTHEN VEEDU, VAZHAMUTTOM, PACHALLOOR P.O., THIRUVANANTHAPURAM, PIN-695027.

¶17

BY ADV. SRI.VPK.PANICKER

¶18

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶19

MACA.NO. 1863 OF 2018

¶20

¶21

JUDGMENT

¶22

This appeal is preferred against the award in O.P.(M.V.) No.1252 of 2012 of the Motor Accidents Claims Tribunal, Thiruvananthapuram by the legal heir of the deceased Kunjulekshmi, who died in a motor accident on 03.04.2008 at 3.15 p.m. Appellant preferred the above claim petition under Sec.163A of the Motor Vehicles Act, 1988 and the learned Tribunal awarded compensation of Rs.17,000/(Rupees Seventeen Thousand only) with 8% interest and cost. Being aggrieved by that, he preferred this appeal.

¶23

The accident was not disputed by the respondents in the lower court. Claimant's case in the lower court was that, on 03.04.2008 at 3.15 p.m., she was waiting on the eastern side of Thiruvallam- Pachalloor public road, at that time, a jeep KL-01/AP1663 driven in a rash and negligent manner knocked down the deceased, as a result she sustained serious injuries. Immediately she was taken to hospital, but on the way to hospital she succumbed to the injuries. The driver, owner, wife and predeceased son of

¶24

MACA.NO. 1863 OF 2018

¶25

¶26

Kunjulekshmi were ex parte in the lower court. The insurer admitted the insurance of the vehicle. Claimant did not adduce any oral evidence, but his documents were marked as Exts.A1 to A6.

¶27

Learned counsel appearing for the appellant contended that the lower court failed to consider the benevolent provisions of Sec.163A of the Motor Vehicles Act, 1988 and a meagre amount was awarded as compensation. The learned counsel appearing for the 3^rd respondent, Adv. V.P.K Panicker submitted that the matter may be remanded to the lower court for fresh consideration.

¶28

Sec.163A of the M.V. Act reads as follows:

¶29

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.

¶30

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

¶31

MACA.NO. 1863 OF 2018

¶32

¶33

1923).

¶34

(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.

¶35

(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.]

¶36

The application under Sec.163A would be limited to only the victims who had income upto Rs.40,000/- per annum and those victims who had income beyond Rs.40,000/- per annum are required to go for claim under Sec.166 of the Act. Sec.163-A is provided for a 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 compensated 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 under

¶37

MACA.NO. 1863 OF 2018

¶38

¶39

Sec.163-A, the same can be permitted.

¶40

According to proviso 163-A generally in practical

¶41

terms, it is found that discretion vested in assessment has to be on the basis of injury sustained to the victim and also on the nature of evidence in that case. In injury cases the damages are to be assessed separately as pecuniary and special damages. The object is to compensate injured so far as money can compensate and for pain, suffering and loss of amenities in life, special circumstances of the claimant have to be taken into account. The compensation for nonpecuniary loss is not easy to determine, but award must reflect that different circumstances have been taken into consideration. The assessment of compensation in permanent disability case would differ from person to person according to the nature of injury. Vast discretion is vested with the court for assessment of just compensation in injury cases. There can be no uniform standard and yardstick provided for assessing such compensation. The scope for awarding general damages and special damages are too wide for articulation. It is settled law that

¶42

MACA.NO. 1863 OF 2018

¶43

¶44

compensation for injury claims would be higher than that in death cases. The reason is that the injured has to suffer disability for the remaining period of his life. But, in calculating the amount of compensation under Sec.163A, the Court must lean to adopt the structured formula provided in the Second Schedule.

¶45

7. Apex Court in United India Insurance Co. Ltd. v.

¶46

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

¶47

“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

¶48

MACA.NO. 1863 OF 2018

¶49

¶50

with the proceeding under S.166 of the Act which would not only be self-contradictory but also defeat the very legislative intention. ”

¶51

In the circumstance, the award in O.P.(M.V.) No.1252

¶52

of 2012 of the Motor Accidents Claims Tribunal, Thiruvananthapuram is set aside and the matter is remitted to the Tribunal for fresh consideration. Both parties are directed to appear before the Tribunal on 10.12.2018. On such appearance, the Tribunal shall dispose of the matter within a period of two months from the date of appearance of the parties.

¶53

Sd/- P.D. RAJAN, JUDGE

¶54

/True Copy/ P.A. To Judge

¶55

A.Vijayakumar v. Natarajan

Case brief

What is this about?

What did the court decide?

A.Vijayakumar v. Natarajan

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

Aby Vs Mani

Mohammed Haneefa Vs Abdul Salam

Shanavas Vs K.P.Abdul Saleem

Sreenivasan Vs Midhun

National Insurance Co. Ltd. Vs Lalitha K.G.

Sundaran Vs Pratheesh