Allowed

Reliance General Insurance Co.Ltd. v. Franklin

Kerala HC4 Nov 2022MACA/2647/2012

Case brief

AI extract

What is this about?

The High Court held that an insurer cannot raise a defence of contributory negligence under Section 163A of the Motor Vehicles Act, 1988. Applying the Supreme Court's decision in United India Insurance v. Sunil Kumar, the Court set aside the Tribunal's finding of 50% negligence and modified the award to direct the insurer to pay the full claimed dependency amount of Rs. 3,88,500 with interest.

What did the court decide?

Impugned award modified to direct the 3rd respondent to pay Rs. 3,88,500/- with interest within two months.

Reliance General Insurance Co.Ltd. Vs Franklin — Motor Accident Claims | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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FRIDAY, THE 4TH DAY OF NOVEMBER 2022 / 13TH KARTHIKA, 1944

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MACA NO. 2647 OF 2012

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AGAINST THE AWARD DATED 20.07.2012 IN O.P(M.V) NO.1861/2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM

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APPELLANT/3RD RESPONDENT:

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RELIANCE GENERAL INSURANCE CO.LTD.
ERNAKULAM, REPRESENTED BY ITS DEPUTY MANAGER,
REGIONAL OFFICE, ERNAKULMA.
BY ADVS.SRI.GEORGE CHERIAN (THIRUVALLA)
 SMT.RAJANI K N

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RESPONDENTS/CLAIMANTS & 1ST RESPONDENT:

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1FRANKLIN, S/O.JACOB, F/O. JOSEPH JAISON,
MALIYEKAL HOUSE, MOOLAMKUZHY, MUNDAMVELY P.O.,
PIN 682 507.
*2DALEELA,
W/O.FRANKLIN, M/O.JOSEPH JAISON, MALIYEKAL HOUSE,
MOOLAMKUZHY, MUNDAMVELY P.O., PIN 682507. * (DECEASED)
*RESPONDENTS 1 AND 3 ARE RECORDED AS THE LEGAL
REPRESENTATIVES OF THE DECEASED SECOND RESPONDENT, AS
PER ORDER DATED 19/11/2021 IN IA 1/2021 IN MACA
2647/2012.
3JOHNSON
S/O.FRANKLIN, BR/O JOSEPH JAISON, MALIYEKAL HOUSE,
MOOLAMKUZHY, MUNDAMVELY P.O., PIN 682507.
4K.P.MICHAL
KALARIKKAL HOUSE, MUNDAMVELY P.O., PIN 682507.
BY ADVS.
R1 BY SRI.KISHOR B.
 SRI.TOMS MATHEW
R3 BY SRI.M. PRAVEEN
R4 BY SRI.N.M.MOHAMMED AYUB

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 04.11.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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M.A.C.A.No.2647 of 2012

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JUDGMENT

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Dated this the 04^th day of November, 2022

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This appeal is directed against an award passed by

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Motor Accidents Claims Tribunal, Ernakulam (for short ‘the Tribunal’) on 20.07.2012 in O.P.(MV) No.1861 of 2009.

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The main challenges raised against the impugned

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award are:

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The Tribunal went wrong in holding that the motor accident was occurred due to negligence of drivers of both vehicles.

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The Tribunal ought to have found that the accident was occurred solely due to negligent riding of the Motorcycle by Sri.Joseph Jaison (deceased).

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The legal heirs of Sri.Gopalakrishna Pillai the driver of the Scooter who died in the motor accident being not made parties in the Original Petition, the claim petition is liable to be

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M.A.C.A.No.2647 of 2012

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dismissed by the Tribunal for non-joinder of necessary parties.

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The Tribunal ought to have adopted a multiplier corresponding to the age of the parents of the deceased rather than the one adopted on the basis of the age of the victim.

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The Tribunal ought to have found that the dependency of the parents on the victim would be reduced on the latter getting married.

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The petitioner had produced and marked in evidence the driving licence of Mr.Joseph Jaison and the date of birth is revealed therefrom as 12.05.1978. Therefore, he was aged 31 years at the time of his death due to the motor accident. 16 being the multiplier directed by the Apex Court in Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)], in case of a person having 31 years age, it was correctly adopted by the Tribunal. The urge to adopt a multiplier corresponding to the age of the parents of the deceased is discarded being untenable in law. The claim for compensation having been

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M.A.C.A.No.2647 of 2012

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made under Section 163A of the Motor Vehicles Act, 1988 (for short ‘the M.V.Act’) the calculation of compensation must be based on the Second Schedule. Compensation payable for dependency as per the table given under Second Schedule is Rs.5,76,000/- and the Tribunal is perfectly justified in arriving at that amount as compensation. 1/3^rd is required by the Second Schedule to be deducted in consideration of personal expenditure, the victim would have spent had he been alive after the motor accident. Therefore, the Tribunal has correctly arrived at a sum of Rs.3,84,000/- (5,76,000 x 2/3) as the compensation payable for loss of dependency. The Tribunal in accordance with the Second Schedule has correctly arrived at Rs.2,000/- and Rs.2,500/- respectively as compensation payable to the petitioners under the head funeral expenses and loss of estate. The Tribunal thus has arrived at Rs.3,88,500/- as the total compensation.

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The Tribunal found that Mr.Joseph Jaison had also

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contributed to the motor accident in question and fixed negligence on his part at 50%.

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M.A.C.A.No.2647 of 2012

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5. The Apex Court has held in United India

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Insurance Co.Ltd v. Sunil Kumar [2017 (4) KLT 1093 (SC)] 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 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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For the aforesaid reasons, we answer the question arising by holding that in a proceeding under S.163A of the Act it is not open for the insurer to raise any defence of negligence on the part of the victim”.

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6. Therefore, the position of law regarding the

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defence of the insurer in a claim under Section 163A M.V.Act

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M.A.C.A.No.2647 of 2012

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is settled by the Apex Court in the above decision by holding that permitting an insurer to raise the defence of negligence would be as if, bringing a proceeding under Section 163A of the M.V.Act at par with the proceeding under Section 166 of the M.V.Act, which would be self contradictory and defeat

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the intention of the Legislature while incorporating Section 163A in the M.V.Act. Therefore, the insurer is barred from taking a defence of contributory negligence in a claim for compensation raised by preferring an application under Section 163A of the M.V.Act.

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Therefore, none of the contentions raised by the appellant will sustain and the appeal deserves to be dismissed.

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The Jurisdiction which this Court is called upon to exercise in the Appeal being appellate jurisdiction, this Court is empowered to correct a patent illegality committed by the Tribunal while limiting the compensation payable to petitioners to 50% of the sum arrived at by it after entering into a finding of 50% contribution of negligence to the victim to cause the motor accident. Evenif the appeal on hand is

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M.A.C.A.No.2647 of 2012

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preferred by the 3^rd respondent it is legally permissible to correct a mistake in the impugned award.

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Accordingly, this Court is inclined to set aside the

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finding on contributory negligence on the part of the victim of the motor accident which is legally impermissible in a petition filed under Section 163A of the M.V.Act. The award under challenge to the extent it finds 50% contributory negligence on the victim and reduction of 50% of the compensation payable, being illegal is set aside. The impugned award is modified to the extent of issuing a direction to the 3^rd respondent to pay Rs.3,88,500/-, the sum arrived at by the Tribunal itself as the compensation to the petitioners. The interest rate fixed by the Tribunal is maintained. The 3^rd respondent shall deposit the above sum with interest within a period of two months from the date of receipt of a certified copy of this judgment.

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MACA fails and is dismissed.

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MARY JOSEPH JUDGE

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NAB

Reliance General Insurance Co.Ltd. v. Franklin

Case brief

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Reliance General Insurance Co.Ltd. v. Franklin

Case brief

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