Dismissed

Rukkiya and Others v. P.Loganathan and Others

Kerala HC17 Sept 2021MACA/299/2009

Case brief

AI extract

What is this about?

The High Court dismissed the appeal filed by the deceased's dependents against the Motor Accidents Claims Tribunal. The Tribunal had rejected the claim under Section 163A because the deceased's annual income exceeded Rs.40,000. The Court held that since the claimants did not elect to convert the petition to Section 166, the dismissal was correct.

What did the court decide?

The appeal filed by the appellants is dismissed as the claim under Section 163A was correctly dismissed due to excess income.

Rukkiya and Others Vs P.Loganathan and Others — Motor Accident Claims | Kerala HC (2021)

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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 C.S.DIAS

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FRIDAY, THE 17^TH DAY OF SEPTEMBER 2021 / 26TH BHADRA, 1943

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MACA NO. 299 OF 2009

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AGAINST THE JUDGMENT IN OPMV 692/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM, PALAKKAD

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APPELLANTS/PETITIONERS:

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1 RUKKIYA, W/O.LATE MUHAMMED, RESIDING AT KUNNATH HOUSE, KULIKKILIYAD, KOTTAPURAM PO, OTTAPALAM TALUK, PALAKKAD DISTRICT.

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2 SHEEJA, W/O.ABDUL SATHAR RESIDING AT KUNNATH HOUSE, KULIKKILIYAD, KOTTAPURAM PO, OTTAPALAM TALUK, PALAKKAD DISTRICT.

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3 JAMSHAD, S/O.LATE MOHAMMAD, RESIDING AT KUNNATH HOUSE, KULIKKILIYAD, KOTTAPURAM PO, OTTAPALAM TALUK, PALAKKAD DISTRICT.

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4 AYISHA UMMA, W/O.LATE MOIDEEN RESIDING AT KUNNATH HOUSE, KULIKKILIYAD, KOTTAPURAM PO, OTTAPALAM TALUK, PALAKKAD DISTRICT.

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BY ADV SRI.P.V.CHANDRA MOHAN

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RESPONDENTS/RESPONDENTS:

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1 P.LOGANATHAN, S/O.SUBRAMANI, RESIDING AT SADUKKARAMANDAN, IIIRD STREET, SALAVANPET, VELLORE, TAMILNADU.

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2 N.GOVINDARAJ, S/O.NAGAPPA GOUNDER RESIDING AT 9, IIND DECARAJ NAGAR, SALAVANPET, VELLORE, TAMILANADU.

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3 THE UNITED INDIA INSURANCE CO.LTD BRANCH OFFICE, FAISAL BUILDING, OTTAPALAM.

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BY ADV SRI.P.K.MANOJKUMAR

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

MACA NO. 299 OF 2009

JUDGMENT

The appellants were the petitioners in O.P(MV) No.692/2004 on the file of the Motor Accidents Claims Tribunal, Ottapalam. The respondents in the appeal were the respondents before the Tribunal.

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The appellants had filed a claim petition under Section 163A of the Motor Vehicles Act, 1988, (for short 'the Act') claiming compensation on account of the death of Mohammed (deceased), the husband of the 1^st appellant, the father of appellants 2 and 3 and son of the 4^th appellant. It was their case that, on 10.6.2004, while the deceased along with appellants 1 and 2 and his grand daughter were travelling in a Car bearing registration No.KL5C/2594 (car) driven by one Nazar, from Sreekrishnapuram to Mannarkkad, when the car reached the place of accident it hit against a lorry bearing registration No.TN-23E/0750 (lorry), driven by the 1^st respondent. In the collision, the deceased sustained fatal injuries and he lost his life on the same day. The deceased was the sole breadwinner of the family. He was working as the Assistant Secretary in the Kulikkiliyad Service Co-operative Bank and was drawing a monthly salary of Rs.14,607/-. The appellants were the

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MACA NO. 299 OF 2009

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dependents of the deceased. After the death of the deceased, the appellants have been pushed to penury and wants. Hence the appellants claimed a compensation of Rs.11,88,500/- from the respondents.

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The respondents 1 and 2 did not contest the proceedings and were set exparte.

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The 3^rd respondent filed a written statement contending that the accident occurred due to the negligence of the driver of the car. It was also contended that a claim under Section 163A and Section 140 of the Act will not lie together. The 3^rd respondent also disputed the age, income and occupation of the deceased.

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The 1^st appellant and a witness were examined as PWs1 and 2 and Exts.A1 to A9 were marked through them in evidence. The 3^rd respondent produced the copy of the final report which was marked as Ext.B1 in evidence.

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The Tribunal, after analysing the pleadings and materials on record, dismissed the claim petition for the reason that as the income of the deceased was more than Rs.40,000/- per annum, a claim under Section 163A of the Act is not maintainable, as held by the Hon'ble Supreme Court in Oriental Insurance Co.

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MACA NO. 299 OF 2009

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Ltd. v. Hansrajbhai V. Kodala and Ors. [2001(2) KLT 235(SC)].

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Aggrieved by the dismissal of the claim petition, the petitioners are in appeal.

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Heard Sri.P.V.Chandra Mohan, the learned counsel appearing for the appellants/petitioners and Sri.P.K.Manojkumar, the learned counsel appearing for the 3^rd respondent insurer.

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Sri.P.V.Chandra Mohan argued that the course adopted by the Tribunal is perverse and wrong. If the Tribunal felt that the claim petition was not maintainable under Section 163A of the Act, it ought to have suo motu converted the claim under Section 166 of the Act and awarded a compensation under the latter provision. The course adopted by the Tribunal is purely hyper technical and, therefore, the impugned award may be set aside. He placed reliance on the decision of this Court in Sumathy Amma and others v. Babu & Others [ 2018 KHC 7529] to drive home his contention.

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Sri.P.K.Manojkumar, on the other hand contended that it is for the appellants to choose/elect under which provision the claim petition had to be filed and prosecuted? Once the claim is

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MACA NO. 299 OF 2009

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prosecuted under Section 163A of the Act, then the Tribunal has to consider whether the claim is sustainable under the said provision. The legal position is categorically laid down by the Hon'ble Supreme Court in Deepal Girishbhai Soni v. United India Insurance Co.Ltd. [2004(2) KLT 395(SC)] that the option to elect the provision is on the claimants. Admittedly, as per Ext.A18 employment certificate, the deceased was drawing a salary of Rs.14,607/- per month, which crosses the pecuniary cap/barrier under Section 163A of the Act. Therefore, the Tribunal rightly dismissed the claim as not sustainable under Section 163A of the Act.

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The question that emerges for consideration in the appeal is whether the dismissal of the claim petition by the Tribunal is legally sustainable or not?

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Section 163A of the Motor Vehicles Act, 1988 reads as

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follows:

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“163A. Special provisions as to payment of compensation on structured formula basis.—

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(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 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

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MACA NO. 299 OF 2009

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indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.

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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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In the second schedule of the Act, the maximum annual income of a person sustaining a fatal injury is fixed as Rs.40,000/-.

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Interpreting Section 163A and the Second Schedule of the Act, the Hon'ble Supreme Court in Hansrajbhai V.Kodala (supra) has held that in a claim petition filed under Section 163A of the Act, the maximum income of the deceased shall not exceed Rs.40,000/-. The said position has been reiterated in Deepal Girishbhai Soni's case (supra), by a three Judge bench. It is also stated that the option to elect under which provision the claim has to be proceeded with, is vested on claimants.

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In the instant case, it is admitted by Ext.A8 that the deceased was drawing a monthly income of Rs.14,607/- ie. an annual income of Rs.1,75,284/-. Hence the claim under Section

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MACA NO. 299 OF 2009

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163A of the Act is applicable to the facts of the case. The appellants, being the masters of the claim petition, ought to have elected to convert the claim under Section 163A to Section 166 of the Act, before commencement of trial. For the reasons best known to them, they have not chosen to convert the petition to one under Section 166 of the Act. In the light of the admitted income of the deceased, the claim petition is hit by the statutory income cap fixed under the Act and the precedents referred to above. Therefore, the impugned award passed by the Tribunal dismissing the claim petition as not maintainable under Section 163A of the Act is correct and proper. I do not find any error in the finding arrived at by the Tribunal.

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In the result, the appeal fails and is hence dismissed.

Sd/-

C.S.DIAS

JUDGE

Rukkiya and Others v. P.Loganathan and Others

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Rukkiya and Others v. P.Loganathan and Others

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