Babu v. P.L. Jose, Sudharsan and National Insurance Co. Ltd.

## **C.R.** ## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH MONDAY, THE 8TH DAY OF DECEMBER 2014/17TH AGRAHAYANA, 1936 MACA.No. 2144 of 2009 -------------------------- AGAINST THE AWARD IN OPMV 1348/2001 of THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR. ## APPELLANT/PETITIONER: BABU, S/O.BALAN, MUTHIRAPARAMBIL HOUSE, SANTHINAGAR, P.O.PULLAZHI, THRISSUR DISTRICT. BY ADV. SRI.P.V.CHANDRA MOHAN ## RESPONDENTS/RESPONDENTS: 1. P.L.JOSE, PALLIKUNNATH HOUSE, P.O.KIZHAKKUMURI, PERINGOTTUKARA, THRISSUR DISTRICT. 2. SUDHARSAN, S/O.SANKARANARAYANAN, PARAPARAMBIL HOUSE, PALLIPPURAM, VALAPPAD P.O. THRISSUR DISTRICT. 3. NATIONAL INSURANCE CO.LTD., TRICHUR BRANCH OFFICE, AMBIKA ARCADE, M.G.ROAD P.B.NO.89, THRISSUR. - R3 BY ADV. SMT.SARAH SALVY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.R.** ## **THOTTATHIL B. RADHAKRISHNAN** **&** # **BABU MATHEW P. JOSEPH, JJ.** **==========================** **M.A.C.A. No. 2144 of 2009 =========================== Dated this the 8[th] day of December, 2014** ## **JUDGMENT** ## **Thottathil B. Radhakrishnan, J.** This appeal is against the dismissal of an application for compensation under Section 163A of the Motor Vehicles Act, 1988, hereinafter referred to as 'the Act'.Heard the learned counsel for the appellant and the learned counsel for the Insurer. 2. The appellant was travelling in an autorickshaw belonging to him and driven by the driver engaged by him. MACA 2144/2009 2 That motor vehicle collided with another motor vehicle. The appellant filed an application for claim invoking the no fault liability provision in Section 163A of the Act. The Tribunal quantified the compensation but held that, going by the police papers, the accident was as a result of the negligence of the driver of the claimant's autorickshaw and thus refused compensation. 3. In support of the appeal, the learned counsel for the appellant argued that in an application under Section 163A of the Act, the question as to whether the driver of the offending vehicle was negligent or not, cannot be put in issue since that is not the foundation for a claim under Section 163A of the Act. It is argued that there is no principle of law on which the compensation could have been refused. It is further argued that the quantum of compensation fixed by the Tribunal is inadequate inasmuch as the Tribunal took the monthly income of the claimant MACA 2144/2009 3 as `2000/-. 4. _Per contra_ , the learned counsel for the insurer argued that by virtue of the decision of the Honourable Supreme Court of India and the Full Bench of this Court in **National Insurance company Ltd. v. Sinitha [2011(4) KLT 821(SC)]** and **Oriental Insurance Co.Ltd. v. Joseph [2012(2)KLT 132(FB)],** no fault liability doctrine cannot be invoked to fasten compensation on the insurer in cases where the driver or owner of the vehicle would be liable, either primarily or vicariously. She further argued that the court below was justified in fixing the monthly income of the claimant at `2,000/-. 5. When two vehicles are involved in an accident and the passenger or driver of one vehicle makes an application invoking Section 163A of the Act as against the driver, owner and insurer of the other vehicle, no issue relatable to the negligence at the hands of the driver of MACA 2144/2009 4 other vehicle would arise for decision. In such a situation, this is the trite legal principle that emanates out of the “no fault” doctrine enshrined in Section 163A of the Act. Even if negligence is attributed through pleadings in an application under Section 163A of the Act, that question goes into oblivion when the application for compensation is under Section 163A. This is the law. 6. The two precedents cited by the learned counsel for the insurer apply in areas where the accident is either a self accident or one where the liability has to be fixed on the basis of the negligence of the claimant. Those decisions, therefore, do not apply to the case in hand. 7. The finding of the Tribunal that the claimant is not entitled to compensation is liable to be reversed and it has to be held that the claimant is entitled to compensation in terms of Section 163A of the Act. We hold so. MACA 2144/2009 5 8. As regards the quantum of compensation, the only dispute is in relation to the loss of earnings and fixation of compensation for permanent disability on the basis of the monthly income of the injured claimant. We have read and evaluated the oral evidence of the claimant as PW1. He said that he makes sign boards and earned `3000/- to `3500/- per month at the time of accident. We think that it is only just and reasonable to take `3000/- as the monthly income of the claimant. This means that the appellant/claimant is entitled to an amount of 3000x12x10/100x18=`64,800/- as compensation for permanent disability and `3000x 2=`6,000/- as loss of earnings during the period for which he was under treatment. We affirm the amount of `4,650/- awarded by the Tribunal as treatment expenses. We also affirm the amount of `5,000/- awarded by the Tribunal towards compensation for pain and sufferings. Thus the appellant MACA 2144/2009 6 is entitled to an amount of `80,450/- as total compensation. In the result, the impugned award is set aside and the appellant is granted an award allowing the recovery of `80,450/- (Rupees eighty thousand four hundred and fifty only) with interest at the rate of 9% per annum from the date of claim petition till realisation. The insurer is directed to satisfy this appellate award within two months from today. This appeal is allowed accordingly. **Sd/THOTTATHIL B. RADHAKRISHNAN JUDGE** Sd/- **BABU MATHEW P. JOSEPH JUDGE** ks. True copy P.S. To Judge MACA 2144/2009 7 ## **RADHAKRISHNAN** **THOTTATHIL B. JUDGE** **BABU MATHEW P. JOSEPH JUDGE** ks. MACA 2144/2009 8