Dismissed

United India Insurance Co. Ltd. v. Reena Hari

Kerala HC3 Oct 2018MACA/2811/2012

Case brief

AI extract

What is this about?

The High Court dismissed an insurer's appeal against a Motor Accidents Claims Tribunal award. The court applied the structured formula compensation under Section 163-A of the Motor Vehicles Act, 1988 and rejected the insurer's argument that it could deny liability based on the deceased driver's alleged negligence.

What did the court decide?

The appeal filed by the insurer was dismissed, and the award of the Motor Accidents Claims Tribunal was upheld.

United India Insurance Co. Ltd. Vs Reena Hari — 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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WEDNESDAY,THE 03RD DAY OF OCTOBER 2018 / 11TH ASWINA, 1940

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MACA.No. 2811 of 2012

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AGAINST THE AWARD IN OPMV 645/2008 of M.A.C.T.,KOLLAM DATED 10-112011

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APPELLANT/THIRD RESPONDENT:

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UNITED INDIA INSURANCE CO. LTD. ATTINGAL, REP. BY THE DU. MANAGER,REGIONAL OFFICE, KOCHI.

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BY ADV. SRI.RAJAN P.KALIYATH

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RESPONDENTS/RESPONDENTS:

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1 REENA HARI AGED 27/08, W/O.LATE HARIPRIYAN,ARAYANTAYYATHU VEEDU, ALAPPADU VILLAGE, KARUNAGAPPALLY, KOLLAM - 691001

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2 HARIDEV, AGED 1 YEAR/2008 S/O.LATE HARIPRIYAN MINOR,REP. BY THE FIRST RESPONDENT MOTHER AND NATURAL GUARDIAN REENA HARI -DO- 691001

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3 SARASWATHY, AGED 60 YEARS W/O.CHANDRA DAS OF -DO-

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4 K.CHANDRA DAS, F/O. LATE HARIPRIYAN OF -DO-

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5 SAJEEV

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S/O.SADASIVAN, KALATHINKARA HOUSE,VANCHIYOOR VILLAGE, ALAMCODU P.O.,ATTINGAL - 695101

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6 J.GOPINATHAN S/O.JANARDHANAN,VETTAVILA VEEDU, VELAKUDY, ATTINGAL - 695101

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BY ADVS. SRI.V.MADHUSUDHANAN SMT.DAYA K. PANICKER SRI.P.R.SHAJI

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA.No. 2811 of 2012

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JUDGMENT

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This appeal is preferred against the award in O.P. (MV)No.645/2008 of the Motor Accidents Claims Tribunal, Kollam by the insurer. On 31.10.2006, one Haripriyan died in a motor accident, while he was driving a goods autorickshaw KL2/P6346 and the legal heirs of the deceased preferred the above claim petition before the Motor Accidents Claims Tribunal, Kollam under Section 163(A) of the Motor Vehicles Act, 1988. The learned Tribunal awarded compensation of Rs.4,63,000/- with 7.5% interest and cost. Being aggrieved by that, the insurer preferred this appeal.

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It would be now relevant and useful to mention the facts leading to the accident. In the lower court, claimants case was that, the deceased was driving an autorickshaw KL2/P 6346 along the Alappuzha - Kollam national highway, when he reached at the place of occurrence, another lorry KL13/1389 overtook the autorickshaw and the driver of the lorry applied sudden brake, as a result the autorickshaw hit on the back side of the lorry and the deceased sustained serious injuries. The driver and owner of the offending vehicle were

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MACA.No. 2811 of 2012

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set ex-parte in the lower court. The insurer admitted the insurance of the vehicle.

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The deceased left behind wife Reena Hari, son Haridev aged 1 year, mother Saraswathy aged 60 years and father K.Chandradas, who were the dependents of the deceased. They contended that the deceased was getting Rs.40,000/- per year and 1/3^rd was deducted from that amount. The learned Tribunal awarded funeral expense, loss of consortium and loss of estate in addition to the above compensation amount.

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Section 163(A) of the Motor Vehicles Act read as

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follows:

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“S.163-A. 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 of the authorised 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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(2) In any claim for compensation under subsection (1), the claimant shall not be required to plead or establish that the death or permanent disablement

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MACA.No. 2811 of 2012

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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 learned counsel for the insurer contended

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that the accident was due to the negligence of the deceased and the dependents are not entitled to get any amount as compensation. The point in debate involves the fact that the legal heirs are entitled to claim compensation under Section 163A of the Motor Vehicles Act, 1988 when deceased was the tortfeasor. Apex Court in United India Insurance Co. Ltd. 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

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MACA.No. 2811 of 2012

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

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The application under Sec.163A would be 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. 2811 of 2012

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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. 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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In view of the decision of apex court, there is no merit in this appeal and it is dismissed accordingly.

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Sd/-

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P.D.RAJAN JUDGE

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bng/09.10.18

United India Insurance Co. Ltd. v. Reena Hari

Case brief

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United India Insurance Co. Ltd. v. Reena Hari

Case brief

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