Appellant challenged Tribunal dismissal of Section 163A claim for permanent disability. Court held a parked vehicle involved in collision counts as 'use of motor vehicle,' but dismissed claim as appellant's income exceeded the statutory ₹40,000 annual limit.
Appeal dismissed; impugned award upheld except to correct finding on 'user of vehicle' scope.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT
THEHONOURABLEMRS.JUSTICESOPHYTHOMAS
FRIDAY,THE24THDAYOFMARCH2023/3RDCHAITHRA,1945
MACA NO. 2438 OF 2009
OP(MV)NO.1400/2004 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA
APPELLANT/PETITIONER IN OP(MV):
SUKUMARAN, S/O.VELAPPAN, THATTEPARAMBIL HOUSE, POTTA DESOM AND POST, CHALAKUDY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.
BYADVS.
SRI.P.V.BABY
SRI.A.N.SANTHOSH
RESPONDENTS/RESPONDENTS IN OP(MV):
1 R.C. IBRAHIM, S/O.PATHUMMA, RAROTH CHALIL HOUSE, MANIPURAM P.O., KODUVALLY, KOZHIKODE DISTRICT.2 ELIAS K.M., C/O. R.C.IBRAHIM, RAROTH CHALIL HOUSE, MANIPURAM P.O., KODUVALLY, KOZHIKODE DISTRICT.3 THE NEW INDIA ASSURANCE CO. LTD., TRIPURI BUILDINGS, EAST NADAKKAVU-673001.4 P.J.JOY, S/O. JOHNY, POTTAKARAN HOUSE, POTTA P.O.,5 THE NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE, THRISSUR.BYADVS.
SRI.A.C.DEVY
SMT.RAJIT.BHASKAR
THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLYHEARDON
10.03.2023,THECOURTON24.03.2023DELIVEREDTHEFOLLOWING:
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“CR”
J U D G M E N T
The claimant in OP(MV)No.1400 of 2004 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, is the appellant herein, challenging the award of the Tribunal, by which his claim for compensation was dismissed.
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maintainable, and he was not eligible to get any compensation even under Section 166 of the MV Act. Aggrieved by the dismissal of his claim for compensation, he has come up with this appeal.
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learned counsel Smt.Raji T. Bhaskar appearing for the 5th respondent.
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negligence from the part of respondent No.2, in parking the lorry by the roadside, the 3rd respondent-Insurer has no liability to compensate the appellant, though that vehicle was covered with a valid policy.
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traumatic amputation of his right hand. So according to him, KL-10/L-8460 lorry was also involved in the accident and so the accident arose out of the use of that motor vehicle also.
“[ 163A. 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 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.
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).
(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.
(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.]”
13. In Soundarajan @ Johnson D v. Ebenezer Marcus Kinder
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Garden School and Another [2019 KHC 4969 Madras High Court] in paragraph 12 it is held as follows:
“S.163 A of the M.V.Act was introduced in the Act by way of a social security scheme. It is a Code by itself. It appears from the objects and reasons of the Motor Vehicles (Amendment) Act, 1994 that after enactment of the 1988 Act, several representations and suggestions were made from the State Governments, transport operators and members of public in relation to certain provisions thereof. Taking note of the observations by various Courts and the difficulties experienced in implementing the various provisions of the Motor Vehicles Act, the Government of India appointed a Review Committee. The Review Committee in its report made the following recommendations:
“The 1988 Act provides for enhanced compensation for hit and run cases as well as for no fault liability cases. It also provides for payment of compensation on proof of fault basis to the extent of actual liability incurred which ultimately means an unlimited liability in accident cases. It is found that the determination of compensation takes a long time. According to information available, in Delhi alone there are 11214 claims pending before the Motor Vehicle Accidents Tribunals, as on 31.03.1990. Proposals have been made from time to time that the finalisation of compensation claims would be greatly facilitated to the advantage of the claimant, the vehicle owner as well as the Insurance Company if a system of structured compensation can be introduced. Under such a system of structured compensation that is payable for different clauses of cases depending upon the age of the deceased, the monthly income at the time of death, the earning potential in the case
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of the minor, loss of income on account of loss of limb etc., can be notified. The affected party can then have the option of either accepting the lump sum compensation as is notified in that scheme of structured compensation or of pursuing this claim through the normal channels.””
14. In United India Insurance Co.Ltd. v. Sunil Kumar and
another reported in [2013 (2) TN MAC 737 (SC)], the Apex Court held that ‘the liability to make compensation under S.163A is on the principal of no fault and, therefore, the question as to who is at fault is immaterial and foreign to an enquiry under S.163A. S.163A does not make any provision for apportionment of the liability. If the owner of the vehicle or the Insurance Company is permitted to prove contributory negligence or default or wrongful act on the part of the victim or Claimant, naturally it would defeat the very object and purpose of S.163A of the Act. Legislature never wanted the Claimant to plead or establish negligence on the part of the owner or the driver. Once it is established that death or permanent disablement occurred during the course of the user of the vehicle and the vehicle is insured, the Insurance Company or the owner, as the case may be, shall be liable to pay the Compensation, which is a statutory obligation.’
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claim compensation under Section 163A of the MV Act, from the owner and Insurer of the other vehicle, which was involved in the accident, as the accident occurred out of the user of that motor vehicle also, though it was stationary at the time of accident. The expression used in Section 163A of the Motor Vehicles Act, is ‘an accident arising out of the use of the motor vehicle’, and not ‘an accident caused by the motor vehicle’. The adoption of the expression ‘accident arising out of the use of the motor vehicle’ in preference to accident caused by the motor vehicle is therefore important and clearly indicates that, such a wider meaning was intended by adoption of that expression. Such a beneficial construction was adopted by courts to hold that the expression ‘arising out of the use of the vehicle’ is to be given a liberal and wide interpretation.
Others reported in [2013 KHC 5146 = 2013 ACJ 919], the Delhi High Court held that driver of a parked tanker coming into contact with overhead electric wire and dying on the spot, on climbing over the tanker to check the condition of the tanker inside, his legal heirs were eligible to get compensation as the accident arose out of the use of motor vehicle.
ACJ 777], a petrol tanker went off the road and fell at a distance of about 20 feet away from the highway leading to leakage of petrol and an explosion took place in the tanker resulting in fire. Persons who had
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assembled near the patrol tanker sustained burn injuries and few of them succumbed to injuries. The Apex Court held that the explosion and fire resulting in injuries and death was due to the accident arising out of the use of the motor vehicle, and it cannot be said that the petrol tanker was not in use at the time when it was lying on its side, after the collision with the truck. The Apex Court further observed that the casual relationship between the use of the motor vehicle and the accident resulting in death or permanent disablement, is not required to be direct and proximate, and it can be less immediate also. This would imply that the accident should be connected with the use of the motor vehicle, but the said connection need not be direct and immediate. The construction of the expression ‘arising out of the use of a motor vehicle’ in Section 163 A of the MV Act, enlarges the field of protection made available to the victims of an accident, and is in consonance with the beneficial object underlying the enactment.
18. In MACA No.1802 of 2007 Siju v. M.K.Radha and others
decided by this Court on 12.08.2008, paragraph 8 reads as follows:
“8. The next question to be considered is when two vehicles are involved in an accident and the rider of one of the vehicles sustains injury whether he can get compensation from the owner, insurer and the driver of the other vehicle or whether he has to get it from both. When two vehicles collided and when the third party is concerned, the question of negligence u/s 166 would be in the characteristic of composite negligence. U/s 166
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when it is considered between the two riders it may come to contributory negligence. But in a proceeding u/s 163A neither the question of composite negligence nor the question of contributory negligence arise for determination in view of the specific provision contained u/s 163A(2), that no enquiry is contemplated regarding the question of negligence. What is contemplated u/s 163A is the sustainment of an injury arising out of the use of a motor vehicle. It is true that the claimant was also using the motor vehicle but the accident took place on account of the impact between his vehicle and another vehicle. So far as the another vehicle is concerned there is a collision between the two, and so it is to be held that it had arisen out of the use of the motor vehicle, which takes in, that vehicle also. Further with respect to that vehicle, the claimant is a third party.”
19. Learned counsel for the 3rd respondent contended that though
the lorry owned by the appellant dashed against the lorry parked on the roadside, it is as good as the lorry of the appellant hitting against a tree or a post, standing by the side of the road and so we cannot say that the parked lorry was in any way involved in the accident. Ext.A9 scene mahazar clearly shows the damages on the left side of the lorry of the appellant, and the damages on the right side of the lorry which was parked on the western side of the road. According to the appellant, if that lorry was not parked there, at the most, his lorry might have fell into the drainage on the western side of the road, and that be so, he would not
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have suffered any serious injuries including amputation of his right hand, which is a scheduled injury of permanent disability as per the Employee’s Compensation Act, 1923. So according to him, the lorry, which was parked on the side of the road, was also involved in the accident, though it was kept stationary at the roadside.
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for the motor vehicle, irrespective of the fact whether it was stationary or not.
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accident.
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Act or any other law for the time being in force. Thus, S.163 A of the M.V.Act covers cases where even negligence is on the part of the victim.’
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park lights, and without any other precautionary indications, and in a place not suitable to park vehicles, and so the 2nd respondent is liable to pay the amount of compensation claimed by the petitioner. It is true that as the MV Act is a beneficial legislation even if a claim petition is made under Section 163 A of the MV Act, an injured/legal representatives of the deceased, should not be deprived from getting a just compensation irrespective of the fact, whether there was any pleading or not with reference to Section 166 of the MV Act, and that is the duty of the Tribunal/Court to consider the claim. As we know, a claim under Section 166 of the MV Act, is based on fault liability principle unlike in a claim under Section 163 A of the MV Act. In a claim under Section 166 of the MV Act, we will have to find out who was at fault. Here, in the case on hand, there is clear evidence to show that the accident occurred due to the rash and negligent driving of the lorry owned by the appellant by the 4th respondent-driver, and that is fortified by the fact that the 4th respondent pleaded guilty to the charge and remitted the fine amount. PW1-the appellant also admitted that fact. If the accident occurred due to the rash and negligent driving of KL-10/L-8460 lorry by the 4th respondent, the appellant, who is the owner of that lorry, himself is vicariously liable, which the 5th respondent is liable to indemnify, on the basis of the contract of indemnity. The appellant, who is vicariously liable for the fault of his driver, cannot claim compensation from himself, as if
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he is a third party. Moreover, as he is a party to Ext. B1 Insurance Policy, he is governed by the terms and conditions of that policy. We have already found that no premium was paid for personal accident coverage of the owner as per Ext.B1 Policy and so, the appellant was not entitled to get any compensation from the 5th respondent-Insurer. The appellant himself admitted in court that he is not making any claim against the 5th respondent. So, the scope for treating his claim under Section 166 of the MV Act is foreclosed.
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products and he was getting monthly income of Rs.13,000 from BPCL. But he would say that since he lost his right hand in the accident, he sold his lorry to some other person, and so he lost his income from BPCL. He produced Ext. A6 Sale Agreement dated 17.04.2004, by which he sold his lorry. But the person who purchased the lorry was not examined and admittedly the Registration Certificate of that lorry is still in the name of the appellant. Moreover, Ext. A6 will show that the said contract with the BPCL was not terminated and it was still continuing. Though the lorry was said to be transferred in the name of one Mr.Ajithan, it was not seen mentioned that, from the date of Ext.A6 Agreement, Sri.Ajithan will be receiving the amount from BPCL. During cross-examination, PW1 admitted that he entered into the contract with the BPCL, only after the accident. So there was no chance to lose that income because of the accident. He categorically admitted before court that still the contract amount from BPCL is disbursed in his name every month. Learned Tribunal found that the income stated as Rs.3,300/- was apart from the monthly income of Rs.13,000/- received from BPCL. If the appellant entered into a contract with the BPCL, after the accident, for a monthly income of Rs.13,000/-, in all probability, Ext.A6 Agreement was executed as a ruse to show that, he lost his income by selling away the lorry. Still the Registration Certificate of that lorry is in the name of the appellant, and still he is receiving the monthly income of Rs.13,000/- from BPCL, as
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borne out from his own admissions. So learned Tribunal rightly found that the appellant was not entitled to make a claim for compensation under Section 163 A of the MV Act as his monthly income was more than Rs.15,000/-. There was no evidence to show that the amount disbursed in his name from BPCL was being paid to somebody else. Since the appellant was not coming within the low income group with maximum annual income up to Rs.40,000/-, his claim under Section 163 A of the MV Act was liable to be dismissed. So I find no illegality or impropriety in the impugned award, warranting interference by this Court, except to the extent of setting aside the finding of the Tribunal that the expression ‘user of vehicle’ can be applied only as against the petitioner’s lorry No. KL-8/Y-9909.
In the result, the appeal fails and hence dismissed.
Sd/-
SOPHY THOMAS JUDGE
DSV/23.03.2023.
2 issues framed by the court
Whether a parked motor vehicle is considered involved in an accident arising out of the use of a motor vehicle for the purpose of a claim under Section 163A.
Whether a claimant alleging negligence against a parked vehicle is liable for their own driver's contributory negligence under Section 163A.
Colour shows how this judgement treated each authority
Soundarajan @ Johnson D v. Ebenezer Marcus Kinder Garden School and AnotherReferred¶48
[2019 KHC 4969 Madras High Court]
United India Insurance Co. Ltd. v. Sunil Kumar and anotherFollowed¶57
[2013 (2) TN MAC 737 (SC)]
National Insurance Co. Ltd. v. Munesh Devi and OthersReferred¶63
[2013 KHC 5146 = 2013 ACJ 919]
Shivaji Dayanu Patil v. Vatschala Uttam MoreFollowed¶65
[1991 ACJ 777]
Siju v. M.K. Radha and othersFollowed¶70
MACA No.1802 of 2007 Siju v. M.K.Radha and others
Pushpa Rani Chopra v. Anokha SinghFollowed¶81
[1975 ACJ 396 (Delhi)]
Mangilal Kale v. M.P. State Road Transport CorporationFollowed¶85
[1988 ACJ 460 (MP)]
Oriental Fire and General Insurance Co. Ltd. v. GangabaiFollowed¶85
[1992 ACJ 106 (MP)]
National Insurance Co. Ltd (M/s.) v. P. AlagesanFollowed¶86
[2014 KHC 5744 = 2014 ACJ 2195]
Deepal Girishbhai Soni and others v. United India Insurance Co. Ltd.Followed¶97
[2004 (1) TN MAC (SC) 193]
2 provisions across 1 enactments
SUKUMARAN
R.C. IBRAHIM
ELIAS K.M.
THE NEW INDIA ASSURANCE CO. LTD.
P.J. JOY
THE NATIONAL INSURANCE CO. LTD.
SOPHY THOMAS
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court