High Court of KeralaSingle Judge2021-04-08Judgment partly allowed; liability to insurers ...

Laiju v. Sivaram S.S. and others

Case / Petition Number:MACA.No.655 OF 2013

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2021-04-08
Court Decision / Holding: Appeal allowed in part. The Tribunal’s exoneration of the insurers is set aside. The appellant is entitled to a composite compensation of Rs. 88,638 with interest at 8% per annum from the date of petition till realization, and proportionate costs. The 5th respondent is to deposit the amount with interest and costs before the Tribunal within two months from receipt of a certified copy of the judgment, and the Tribunal shall release payment to the appellant after verifying any earlier deposits. If amounts had been withdrawn by respondents 1 and 2, the balance should be paid to the appellant.
Final Disposition: Judgment partly allowed; liability to insurers recognized; quantum of compensation recalculated under II Schedule; final award Rs. 88,638 with interest; deposit and payment directions issued.

Parties to the Case

Appellants / Petitioners

Laiju

Respondents

Sivaram S.S.
Shiju M.B.
United India Insurance Co. Ltd.
K. L. Francis
United India Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. P. V. Chandra Mohan

Counsels for Respondents

• Sri P. Jacob Mathew

Case Synopsis & Summary

This is a Motor Accidents Claims Appeal under MACA No. 655 of 2013 from an award of the Motor Accidents Claims Tribunal, Thrissur in OP(MV) No.1323/2004. The appellant, Laiju (pillion rider) sustained serious injuries in a road collision on 1 February 2004 while travelling on a scooter. The incident involved two vehicles: the appellant’s scooter (insured with the 3rd respondent) and an offending scooter (driving vehicle owned by the 4th respondent and insured with the 5th respondent). The tribunal initially held the 1st and 2nd respondents liable, exonerating the insurers on the ground that the 4th respondent was not negligent and that the policy cover was of the “Act Policy” with the insurer not liable. The appellant challenged this finding before the High Court, arguing that the petition was under Section 163A of the Motor Vehicles Act, 1988, which provides no-fault compensation, and that the Tribunal should not probe negligence. Relying on Supreme Court decisions in Sunilkumar and Khenyei, the High Court held that Section 163A awards are based on no-fault liability and that liability can extend to joint tortfeasors. The court recalculated the compensation under the IInd Schedule and awarded a total of Rs. 88,638 with 8% interest, directing deposit before the Tribunal and payment to the appellant thereafter. The appeal was allowed in part, with liability placed on the insurer despite the earlier finding. The judgment reflects a shift towards no-fault adjudication with joint-liability considerations.

Provisions of Law Cited

Section 166 of the Motor Vehicles Act, 1988Section 163A of the Motor Vehicles Act, 1988Section 140 of the Motor Vehicles Act, 1988II Schedule to the Motor Vehicles Act, 1988

Legal Doctrines & Maxims

No-fault liability under Sections 140 and 163A of the Motor Vehicles Act, 1988
Composite negligence doctrine
Liability of joint tort feasors

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal erred in exonerating the insurers and failed to apply the no-fault principle under Section 163A. Since the petition was under 163A, proof of negligence is not required as per Sunilkumar and Khenyei. The insurer’s liability should be considered despite the ‘Act Policy’ clause and the appellant seeks enhancement of compensation under the II Schedule.

Contentions of Respondents

The respondents argued that there was no negligence by the 4th respondent; the 2nd respondent was negligent per the police charge sheet; the insurers are not liable due to policy type; the appellant is a joint tortfeasor and not entitled to compensation; the Tribunal’s findings were correct and compensation should be calculated according to the II Schedule.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
United India Insurance Co. Ltd. v. Sunilkumar	2017 4 KLT 1093 SC	Positive	Sunilkumar confirms no-fault nature of Sections 140 and 163A and that compensation under Section 163A is final, not dependent on proof of negligence, supporting the High Court’s no-fault approach.
Khenyei v. New India Assurance Co. Ltd. and Others	2015 (9) SCC 273	Positive	Khenyei holds that in composite negligence, a claimant may sue jointly or severally for full compensation from joint tortfeasors, justifying holding the insurers liable in a no-fault framework.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943** **MACA.No.655 OF 2013** **AGAINST THE AWARD IN OP(MV) 1323/2004 DATED 29-11-2012 ON THE FILE OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/PETITIONER:** **LAIJU, AGED 36 YEARS, S/O.BALAN, MALVEETTIL HOUSE, S.M.LANE, INDEPENDENCE NAGAR, P.O.CHETTUPUZHA, THRISSUR DISTRICT.** **BY ADV. SRI.P.V.CHANDRA MOHAN** ## **RESPONDENTS/RESPONDENTS:** - **1 SIVARAMAN.S.S., S/O.SANKARAN, SANKARATHADATHIL HOUSE, KOVIPARAMBU, MUNDOOR.P.O., THRISSUR DISTRICT. 680 541.** - **2 SHIJU.M.B., S/O.BALAN.M.K., MELVEETTIL HOUSE, S.M.LANE, 2ND STONE, PULLAZHI.P.O., THRISSUR DISTRICT. 680 012.** - **3 UNITED INDIA INSURANCE CO. LTD., PARK HOUSE, ROUND NORTH, THRISSUR. 680 001.** - **4 K.L.FRANCIS, S/O.LAZER, KOLLANUR HOUSE, VELUTHOOR.P.O., THRISSUR DISTRICT. 680 012.** - **5 UNITED INDIA INSURANCE CO. LTD., THRISSUR. 680 001. R1, R3 BY ADV. SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-04-2021, THE COURT ON 08-04-2021 DELIVERED THE FOLLOWING:** **MACA.No.655 OF 2013 2** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.1323 of 2004 on the file of the Motor Accidents Claims Tribunal, Thrissur. The respondents in the appeal were the respondents in the claim petition. 2. The facts in brief, relevant for the determination of the appeal, are: on 1.2.2004 while the appellant was travelling as a pillion rider on the scooter bearing Reg.No.KL-8/G 1421, ridden by the 2[nd] respondent, through Thrissur-Kanjany road, when the vehicle reached Ayyanthole Civil Lane Junction, a scooter bearing Reg.No.KL-8/G-7912 (offending vehicle) which attempted to overtake the scooter on which the appellant was travelling, hit on the rear portion of the scooter of the appellant. Due to the impact, the appellant fell down on the road and sustained serious injuries. He was ## **MACA.No.655 OF 2013 3** treated as an inpatient at the Medical College Hospital, Thrissur. The accident occurred solely due to the rash and negligent driving of the offending vehicle by the 4[th] respondent. The scooter on which the appellant was travelling was insured with the 3[rd] respondent and was owned by the 1[st] respondent. Whereas, the offending vehicle was owned and ridden by the 4[th] respondent and insured with the 5[th] respondent. The appellant initially filed a claim petition under Section 166 of the Motor Vehicles Act 1988, but later amended the claim petition to one under Section 163A of the Act. The appellant contended that he was aged 27 years of age, and was a jewelry worker and earning a monthly income of Rs.3,200/-. Hence, the respondents 4 and 5 were jointly and severally liable to pay compensation to the appellant, which he quantified at Rs.1,16,000/-. 3. The respondents 3 and 5 filed separate written statements. Even though notice was served on the other **MACA.No.655 OF 2013 4** respondents, they did not contest the proceedings and were set ex parte. 4. The 3rd respondent filed a written statement, inter alia, contending that the scooter on which the appellant was riding as a pillion was owned by the 1[st] respondent, but was covered only by an 'Act Policy'. Therefore, the appellant was not covered by the policy. Therefore, the 3[rd] respondent was not liable to pay any amount as compensation. 5. The 5[th] respondent filed a written statement admitting that the offending vehicle had a valid insurance policy issued by the 5[th] respondent, but it was only an 'Act Policy'. Moreover, as the Police charge sheetted the 2[nd] respondent for causing the accident, the 4[th] respondent cannot be held negligent for causing the accident. The appellant himself is a joint tort feaser, hence, he was not entitled for compensation. 6. The appellant examined the doctor who treated **MACA.No.655 OF 2013 5** him and marked Exts.A1 to A9 in evidence. The insurance companies, namely; the respondents 3 and 5 produced and marked Exts.B1 and B2 insurance policies of both the vehicles. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part by permitting the appellant to realise an amount of Rs.1,02,250/- from the respondents 1 and 2. The respondents 3 and 5 insurance companies were exonerated of their liability. 8. Aggrieved by the impugned award, exonerating the insurance companies of their liability and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard Sri.P.V.Chandra Mohan, the learned counsel appearing for the appellant/petitioner and Sri.P.Jacob Mathew, the learned counsel appearing for the respondents 3 and 5/Insurance Companies. **MACA.No.655 OF 2013 6** 10. The questions that emanate for consideration in the appeal are (i) whether the impugned award passed by the Tribunal is correct or not (ii) is the appellant entitled to enhancement of compensation. 11. The Tribunal by the impugned award found that there was no negligence on the part of the 4[th] respondent, the driver of the offending vehicle based on Ext.P2 charge sheet filed by the Police. As per Ext.A2, it was the 2[nd] respondent who was negligent in causing the accident. On the said basis, the Tribunal exonerated the respondents 3 to 5 and directed the respondents 1 and 2 to pay the compensation amount to the appellant. 12. The Tribunal lost sight of the fact that the claim petition was filed under Section 163A of the Motor Vehicles Act, 1988. 13. The Hon'ble Supreme Court in _**United India Insurance Company Ltd., v. Sunilkumar (2017 4 KLT 1093 SC)**_ has categorically held that Sections 140 ## **MACA.No.655 OF 2013 7** and 163A of the Act are based on the concept of 'no fault liable'. These provisions have been enacted as a measure of social security. Therefore, the grant of compensation under Section 163A, on the basis of the structured formula, is in the nature of final award and adjudication with no requirement of any proof of negligence on the driver/owner of the vehicle(s) involved in the accident. 14. In _**Khenyei v. New India Assurance Co. Ltd. and Others (2015 (9) SCC 273)**_ the Hon'ble Supreme Court has held that in the case of composite negligence, the claimant is entitled to sue both or anyone of the joint tort feasors and to recover the entire compensation as liability from the joint feasors either jointly or severally. 15. In light of _**Sunilkumar**_ and _**Khenyei**_ (supra), I am of the considered opinion that the findings of the Tribunal that there was no negligence on the part of the 4[th] respondent and therefore, the 5[th] respondent is not ## **MACA.No.655 OF 2013 8** liable to pay any amount as compensation because the accident was caused due to the negligence of the 1[st] respondent is erroneous and against the settled law. 16. It is reiterated that in view of _**Sunilkumar**_ (supra), the Tribunal was not supposed to have probed into the factum of negligence. Moreover, both the 3[rd] respondent and the 5[th] respondent are one and the same insurance company- United India Insurance Company Ltd. 17. In view of the law laid down in the aforecited decisions and the facts and circumstances of the case, I am of the definite opinion that the impugned award is wrong. Hence, I set aside the finding in the award that the 5[th] respondent is not liable to pay compensation as there is no negligence on the part of the 4[th] respondent. 18. As a consequence of the setting aside of the above finding, the next question that arises for consideration is what is the reasonable and just ## **MACA.No.655 OF 2013 9** compensation payable by the 5[th] respondent to the appellant. 19. The appellant was aged 27 years at the time of accident. His notional income was fixed at Rs.8,000/-. The accident took place on 1.2.2004. Therefore, the II[nd] Schedule of the Act, as on 1.2.2004, is applicable to the facts of the case. In fact, the Tribunal has in the schedule to the impugned award calculated the compensation payable by the respondents 1 and 2 to the appellant. 20. Going by the II[nd] Schedule of the Act, it is seen that the appellant is not entitled for compensation under the heads-'bystander expenses, transport expenses and loss of amenities'. Similarly, the appellant can only be given maximum compensation of Rs.5,000/- under the head 'pain and suffering'. 21. With respect to the other heads of claim, namely; loss of earnings, medical expenses, loss due to disability, I find that the Tribunal has rightly awarded **MACA.No.655 OF 2013 10** compensation as per the II[nd] Schedule of the Act. 22. On an overall reappreciation of the pleadings and materials on record, I hold that the appellant is entitled for a composite compensation of Rs.88,638/instead of 1,02,250/- as modified and recalculated above and given in the table below for easy reference. |Head of claim|Amount awarded by the Tribunal|Amounts modified and recalculated by this Court| |---|---|---| |Loss of earnings|9,000/-|9,000/-| |Medical Expenses|1,198/-|1,198/-| |Bystander expenses|6,00/-|Nil| |Transport Expenses|3,000/-|Nil| |Pain and sufferings|8,000/-|5,000/-| |Loss due to disability|73,440/-|73,440/-| |Loss ofamenities|7,000/-|Nil| |Total|1,02,238/-|88,368/-| In the result, the appeal is allowed in part, by fixing the compensation at Rs.88,638/- with interest at the rate **MACA.No.655 OF 2013 11** of Rs.8% per annum from the date of petition till the date of realisation and proportionate costs. The 5[th] respondent shall deposit the above compensation amount with interest and proportionate costs before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall release the compensation amount to the appellant only after ascertaining whether any amount has been withdrawn by the appellant on the deposit made by respondents 1 and 2. If the respondents 1 and 2 have deposited any amount, the said amount shall be refunded to them, and the appellant be paid only the balance compensation, if any, as awarded in this judgment. sd/C.S.DIAS JUDGE pm