Remanded

Janeesh Devasia v. Jolly M.P.

Kerala HC15 Oct 2018MACA/2538/2016

Case brief

AI extract

What is this about?

Appeal against Motor Accidents Claims Tribunal's dismissal of compensation claim under Section 163A. Court followed Supreme Court guidance to remit the matter for fresh consideration after directing medical board examination for disability eligibility.

What did the court decide?

Claim dismissed by Tribunal quashed. Matter remitted to Tribunal for fresh consideration after obtaining Medical Board disability certificate. Parties to appear by 20.12.2018.

Janeesh Devasia Vs Jolly M.P. — 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

MONDAY ,THE 15TH DAY OF OCTOBER 2018 / 23RD ASWINA, 1940

¶5

M.A.C.A.No. 2538 of 2016

¶6

AGAINST THE AWARD IN OPMV 238/2013 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA DATED 29-03-2016

¶7

APPELLANT/PETITIONER:

¶8

JANEESH DEVASIA

¶9

THATTUNKAL HOUSE, AMAYANNOOR P.O.,KOTTAYAM DISTRICT.

¶10

BY ADV. SRI.DINNY THOMAS

¶11

RESPONDENTS:

¶12

1 JOLLY M.P.

¶13

MELETHUPUTHUPURAYIL HOUSE, PAZHAMATTOM P.O.,ERNAKULAM-683565.

¶14

2 JUSTIN

¶15

S/O ISSAC, KINATTUMKAL HOUSE, AMAYANNOOR P.O.,KOTTAYAM-683565.

¶16

3 NATIONAL INSURANCE CO. LTD. CHERUPUSHPAM BUILDING, MAIN ROAD, PALA-686575.

¶17

BY ADV. SMT.DEEPA GEORGE

¶18

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶19

M.A.C.A.No. 2538 of 2016 2

¶20

JUDGMENT

¶21

This appeal is preferred against the award in OP(MV) 238 of

¶22

2013 of the Motor Accidents Claims Tribunal, Pala by the injured. The appellant sustained injuries in a motor accident and the learned Tribunal assessed the compensation of Rs.3,99,500/under Section 163A of the Motor Vehicles Act, 1988, and dismissed the claim petition as not maintainable in view of the decision in National Insurance Co.Ltd v. Sinitha [in 2011 KLT 821] . Being aggrieved by that, the injured preferred this appeal.

¶23

Appellant's claim in the lower court is that on 11.1.2013, he was riding a motor cycle no.KL-05-AF-613 through Oravackal-Kooropada road, when he reached at the place of occurrence, another vehicle no.KL-40-G-2770 driven in a rash and negligent manner hit against the motor cycle and the appellant sustained serious injuries, in the circumstances he filed the above petition under Section 163A of the Motor Vehicles Act, 1988. The driver and owner were ex parte and the insurer admitted the insurance, but disputed the liability.

¶24

M.A.C.A.No. 2538 of 2016 3

¶25

3. Section 163A of the Motor Vehicle Act, 1988 reads thus:

¶26

“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 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.

¶27

(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.

¶28

(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”.

¶29

4. The application under Sec.163A would be limited to only the

¶30

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/-

¶31

M.A.C.A.No. 2538 of 2016 4

¶32

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

¶33

According to proviso 163-A generally in practical 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 non-pecuniary 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

¶34

M.A.C.A.No. 2538 of 2016 5

¶35

damages are too wide for articulation. It is settled law that 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.

¶36

6. Apex Court in United India Insurance Co. Ltd. v. Sunil Kumar [2017(4) KLT 1093 (SC)] held as follows:

¶37

“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,

¶38

M.A.C.A.No. 2538 of 2016 6

¶39

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 self-contradictory but also defeat the very legislative intention. ”

¶40

In the above decision, the Apex Court held that

¶41

grant of compensation under Section 163 A of the Act on the basis of structured formula is a final award. Adjudication thereunder is made without any proof of negligence of driver and owner of the vehicle. Hence the dismissal of the claim petition is set aside and the case is remitted to the Tribunal for fresh consideration. Both parties are directed to appear before Tribunal on 20.12.2018. On such appearance, the Tribunal shall dispose the matter within three months from thereafter. Appellant failed to produce disability certificate to prove the permanent disability in the circumstances Tribunal is directed to refer the claimant to

¶42

M.A.C.A.No. 2538 of 2016 7

¶43

Medical Board and obtain a disability certificate for the purpose of ascertaining permanent disability as stated in the

¶44

explanation of Section 163A and dispose the matter

thereafter.

Sd/-

P.D.RAJAN

ACM / 29.10.2018 JUDGE

Janeesh Devasia v. Jolly M.P.

Case brief

What is this about?

What did the court decide?

Janeesh Devasia v. Jolly M.P.

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

The Director General of Police Vs Biju

The Director General of Police Vs Sudheesh S.

Vishnu Raveendran Vs Sunil

Aby Vs Mani

Mohammed Haneefa Vs Abdul Salam

Shanavas Vs K.P.Abdul Saleem