Allowed

The Divisional Manager v. Rinju K. Raju

Kerala HC10 Nov 2023MACA/729/2020

Case brief

AI extract

What is this about?

The Kerala High Court allowed an appeal against an MACT award. It held that negligence is irrelevant under Section 163A, faulted the Tribunal for considering it, and set aside the award remanding it while maintaining the calculated compensation figure.

What did the court decide?

Impugned award set aside to the extent of liability fixation; original petition remanded for fresh award on correct legal principles.

The Divisional Manager Vs Rinju K. Raju — Motor Accident Claims | Kerala HC (2023)

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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 10TH DAY OF NOVEMBER 2023 / 19TH KARTHIKA, 1945

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MACA NO. 729 OF 2020

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AGAINST THE AWARD DATED 07.01.2020 IN O.P(M.V) NO.458/2014 OF

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MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA

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APPELLANT/ ADDITIONAL 4TH RESPONDENT:

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THE DIVISIONAL MANAGER
THE NEW INDIA ASSURANCE COMPANY T. O. HUB,
KHAISE BUILDING, BEACH ROAD, OPP. BENZIGAR HOSPITAL,
KOLLAM, PIN - 691 001,
REPRESENTED BY ITS ASSISTANT MANAGER.
BY ADVS.
SRI.LAL K.JOSEPH

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RESPONDENTS/PETITIONERS/1ST AND 2ND RESPONDENTS AND ADDITIONAL 3RD

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RESPONDENT:

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1RINJU K. RAJU, AGED 30 YEARS
D/O. RAJU KOCHUKUNJU, OTTALILPADINJAREPURAYIDOM,
KUDASSANADU P. O., NOORANADU, NOW RESIDING AT
KONNANILKUNNATHIL @ KUZHIPARAMBIL, PRAKKANAM P. O.,
ELANTHOOR (DAUGHTER OF DECEASED), PIN - 689 643.
2SHARU K. RAJU, AGED 23 YEARS
D/O. RAJU KOCHUKUNJU, OTTALILPADINJAREPURAYIDOM,
KUDASSANADU P. O., NOORANADU, NOW RESIDING AT
KONNANILKUNNATHIL @ KUZHIPARAMBIL, PRAKKANAM P. O.,
ELANTHOOR (DAUGHTER OF DECEASED), PIN - 689 643.
3KOSHY T. JOSE, S/O. THANKACHAN K., PAPPADIKOICKAL
PADEETTATHIL, KUDASSANADU P. O,MAVELIKKARA, PIN-689512.
4THE DIVISIONAL MANAGER
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., TC 28/2222(5)
'ANUGRAHA', 2ND FLOOR, M. G. ROAD, PAZHAVANGADI P. O.,
THIRUVANANTHAPURAM - 23.
5B. SREEKUMAR
S/O. BALAKRISHNAN NAIR, GEETHA MANDIRAM, MADATHILKUNNU,
KILIMANOOR, PIN - 695 601.

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 10.11.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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M.A.C.A.No.729 of 2020

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JUDGMENT

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Dated this the 10^th day of November, 2023

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The appeal on hand is originated from an award passed by Motor Accidents Claims Tribunal, Pathanamthitta (for short ‘the Tribunal’) on 07.01.2020 in O.P (M.V) No.458/2014. The appellant is the 4^th respondent who is the insurer of a Bus bearing Registration No.KL-26A-3033, which was allegedly parked on the side of the road.

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The passenger in a Car bearing Registration No.KL-31C-2345, which hit against the stationary Bus, died in the motor accident in question. Her legal representatives have filed the Original Petition seeking a sum of ₹5,12,500/- as compensation. The Original Petition was filed under Section 163A of the Motor Vehicles Act, 1988 (for short ‘the MV Act’).

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M.A.C.A.No.729 of 2020

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The Tribunal raised points as follows for

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consideration:

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“1. Whether the accident was occurred due to the rash and negligent driving of the car bearing registration No.KL.31.C.2345 or by the driver of the bus bearing registration No.KL.26.A.3033?

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Whether the petitioner is entitled to get any compensation U/s.163A of MV Act? If so, what is the quantum and by whom it is payable?”

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It is found from the 1^st point raised itself that the Tribunal

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is totally unaware of the true legal position envisaged under Section 163 A MV Act. Under Section 163 A MV Act, negligence of the driver of a vehicle involved in the accident is not a matter relevant to be pleaded and proved by the petitioner. In the Original Petition seeking compensation, petitioners have raised a plea that drivers of both vehicles involved in the motor accident were responsible for causing it by their rash and negligent driving. But negligence of the drivers is not a matter to

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M.A.C.A.No.729 of 2020

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be pleaded and proved in an Original Petition seeking compensation filed under Section 163 A MV Act. The petitioners ought not to have raised such a plea in the Original Petition and the Tribunal ought not to have raised point No.1 for it's consideration. The Tribunal in the view of this Court was carried away from the pleadings in the Original Petition that negligence of the drivers of the vehicles involved in the motor accident is also a matter to be determined and accordingly raised it as the first point. The Tribunal has also answered Point No.1 as if both the drivers of the Bus and the Car were negligent at the relevant time of the motor accident. The Tribunal is undoubtedly erred and unjustified in raising the point as above for consideration in the Original Petition on hand and answering it affirmatively.

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The learned counsel has also pointed out that the Tribunal found rash and negligent driving of the 1^st respondent who was driving the Car bearing Registration

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M.A.C.A.No.729 of 2020

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No. KL 31 C 2345 as well as the negligent parking of the Bus bearing Registration No. KL 26 A 3033 by its driver, at the relevant time, as the cause of the motor accident. The Tribunal also found both of them primarily liable to pay compensation with interest and costs to the petitioners jointly and severally. The insurer of the Bus involved in the motor accident arrayed as the 4^th respondent had filed a petition seeking for production of the driving licence and fitness certificate of the Bus. But the owner and the driver of the Bus failed to produce those despite direction issued. The Tribunal disallowed the claim of the 4^th respondent for recovery of the compensation amount from the owner and driver of the Bus involved in the motor accident for the reason that it was only the insurer of a stationary Bus. Thereafter, the Tribunal had directed the 4^th respondent, the insurer of the Bus to remit the compensation amount before the Tribunal within 30 days from the date of the award in the manner stated by it in the award. The

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M.A.C.A.No.729 of 2020

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learned counsel for the 4^th respondent, the appellant in the appeal on hand has pointed out that the Tribunal is erred in fixing the entire liability on the 4^th respondent to remit the compensation amount before the Tribunal after finding that the drivers of both vehicles were negligent and responsible for causing the motor accident. In the view of this Court also the Tribunal is totally erred in doing so.

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It is also found from the impugned award that ₹3,47,700/- was arrived at as the compensation payable. This Court finds nothing wrong in the calculation of compensation adopted by the Tribunal, as it was done in the manner as envisaged under the IInd Schedule of the MV Act. But the compensation arrived at as ₹3,47,700/was rounded off and shown in the impugned award as ₹5,00,000/-. The Tribunal is unjustified in rounding off ₹3,47,700/- as ₹5,00,000/-. In view of above infirmities, there is every reason to allow the appeal and to set aside the impugned award, to the extent point No.1 is answered

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M.A.C.A.No.729 of 2020

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by the Tribunal and entire liability is fastened on the 4^th respondent, the insurer of the Bus. The method of calculation of compensation adopted by the Tribunal and the amount arrived at as compensation being correct, are maintained.

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In the result, the appeal is allowed and the impugned award is set aside only to the extent it answered point No.1 and fixed the entire liability on the 4^th respondent. Original Petition No.458/2014 is remanded to Motor Accidents Claims Tribunal, Pathanamthitta for consideration afresh of the infirmities referred to above and passing of a fresh award, duly taking into account of the legal position envisaged under Section 163 A of the MV Act.

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Sd/- MARY JOSEPH JUDGE

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NAB

The Divisional Manager v. Rinju K. Raju

Case brief

What is this about?

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The Divisional Manager v. Rinju K. Raju

Case brief

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