Dismissed

The Divisional Manager v. Surendran Alias Surendran Nair (Died)

Kerala HC20 Dec 2018MACA/2490/2018

Case brief

AI extract

What is this about?

The Kerala High Court dismissed the insurer's appeal against the Motor Accidents Claims Tribunal's award of compensation under Section 163A of the MV Act, 1988. The Court held that negligence is not a requirement for compensation under this Section and the insurer cannot raise negligence or title arguments to defeat the claim.

What did the court decide?

The appeal was dismissed; the award of Rs.4,12,500/- and interest of 8% by the Tribunal was upheld.

The Divisional Manager Vs Surendran Alias Surendran… — 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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THURSDAY ,THE 20TH DAY OF DECEMBER 2018 / 29TH AGRAHAYANA, 1940

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M.A.C.A.No. 2490 of 2018

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AGAINST THE AWARD IN OPMV 533/2012 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, TRIVANDRUM DATED 25-08-2017

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APPELLANT/2ND RESPONDENT:

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THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE CO.LTD., 2ND FLOOR, REMA PLAZA, NEAR AYYAPPAN COIL, SS COIL ROAD, THAMPANOOR, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G.ROAD, ERNAKULAM, KOCHI - 682 011.

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BY ADV. GANAPPAN P.G.

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RESPONDENTS/CLAIMANTS & RESPONDENT:

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1 SURENDRAN ALIAS SURENDRAN NAIR (DIED) F/O.DECEASED JAYAKUMAR, 651, CHEMMANNUVILA VEEDU, 9, PAPPANAMCODE, NEMOM, THIRUVANANTHAPURAM, NOW RESIDING AT THAKIDIYIL THAZHE PUTHEN VEEDU, T.C.NO.51/444, PAPPANAMCODE P.O., THIRUVANANTHAPURAM - 695 018.

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2 VIJAYAM ALIS VIJAYAMMA W/O.SURENDRAN, 651, CHEMMANNUVILA VEEDU, 9, PAPPANAMCODE, NEMOM, THIRUVANANTHAPURAM, NOW RESIDING AT THAKIDIYIL THAZHE PUTHEN VEEDU, TC NO.51/444, PAPPANAMCODE P.O., THIRUVANANTHAPURAM - 695 018.

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3 JAYALEKSHMI W/O.VINODKUMAR, 279 (65/770),

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M.A.C.A.No. 2490 of 2018

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ADITHYAN NIVAS, 12 NELLIYODE, THIRUVANANTHAPURAM - 695 027.

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4 JAYACHANDRAN @ JAYACHANDRAN CHETTIYAR S/O.KUTTAPPAN CHETTIYAR, 48/630, THENGUVILA VEEDU, AMBALATHAARA, POONTHURA P.O., THIRUVANANTHAPURAM - 695 026.

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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M.A.C.A.No. 2490 of 2018

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JUDGMENT

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This appeal is preferred against the award in OP(MV)No.533 of 2012 of Motor Accidents Claims Tribunal, Thiruvananthapuram by the insurer. On 11-08-2011 at 12.10am, the deceased was riding a motor cycle KL-01AM-3700 through Estate-Pappanamcode road, when he reached at the RPM Kalyananmandapam, the vehicle skidded and hit against the slab on the side of the road. As a result, he sustained serious injuries. While undergoing treatment, he succumbed to the injuries. The legal heirs of the deceased preferred the claim petition under Section 163(A) of the Motor Vehicles Act 1988.

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The insurer admitted the insurance of the vehicle. The first respondent who is the owner of the vehicle was set ex-parte. The insurer contented that deceased was riding the motor cycle with knowledge of the owner which means he deemed to have stepped into the shoes of the owner which is not covered as per the policy. Claimants did not adduce any oral evidence, but their documents were marked as Ext.A1 to A6. The

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M.A.C.A.No. 2490 of 2018

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learned Tribunal awarded Rs.4,12,500/- (Rupees Four Lakhs Twelve Thousand Five Hundred only) with 8% interest and proportionate cost. Hence this appeal.

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3 . The deceased was aged 25 years at the time of death and was getting Rs.3,000/- per month. The annual income was Rs.36,000/- and the multiplier as per the second schedule is 17. One third amount was deducted towards personal expenses. In addition to that funeral expenses and loss of estate were also awarded.

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4. Apex court in United India Insurance Co.

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

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“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.”

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Though the Section 163 A of the Act does not specifically exclude a possible defence of the insurer based on the negligence of the claimant as contemplated by Section 140(4), to permit such defence to be introduced by the insurer and/or to understand the provisions of Section 163A of the Act to be contemplating any such situation would go

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M.A.C.A.No. 2490 of 2018

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contrary to the very legislative object behind introduction of Section 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 Section 163A of the Act to permit the insurer to raise the defence of negligence would be to bring a proceeding under Section 163A of the Act at par with the proceeding under Section 166 of the Act which would not only be self-contradictory but also defeat the very legislative intention. For the aforesaid reason, we answer the question arising by holding that in a proceeding under Section 163A of the Act is not open for the insurer to raise any defence of negligence on the part of the victim.

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5 . Since the negligence is not a criterion for awarding compensation under Section 163(A), the reason stated for admitting the appeal is unsustainable in law. Since in a proceeding under section 163(A), it is not open to the insurer to raise any defence of negligence on the part of the victim, he cannot argue the question of negligence. No documents were produced in the lower court to show that there is violation of policy condition. Hence, he cannot raise defence that the deceased

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M.A.C.A.No. 2490 of 2018

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stepped into the shoes of the owner and he is not entitled to get compensation.

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There is no merit in this appeal and it is dismissed accordingly.

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Sd/- P.D.RAJAN, nak JUDGE

The Divisional Manager v. Surendran Alias Surendran Nair (Died)

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The Divisional Manager v. Surendran Alias Surendran Nair (Died)

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