MACA No. 1374 of 2010

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942** ## **MACA.No.1374 OF 2010** **AGAINST THE AWARD IN OPMV 372/2003 DATED 29-01-2010 OF SPECIAL COURT FOR EC ACT CASES & MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR** ## **APPELLANTS/PETITIONERS:** |**1**|**SUJA**| |---|---| ||**AGED 27 YEARS,**| ||**W/O LATE BABY,**| ||**CHERIYAMPARAMBIL HOUSE,**| ||**KOTTAMKODE,P.O.KUNDUKAD,**| ||**THRISSUR DISTRICT.**| |**2**|**MINOR STEFFY**| ||**AGED 6 YEARS**| ||**D/O.PETITIONER NO.1,**| ||**-DO-.**| |**3**|**MINOR STENNY**| ||**AGED 3 YEARS**| ||**D/O.PETITIONER NO.1,**| ||**-DO-.**| |**4**|**ELIAMMA AGED 73 YEARS**| ||**W/O.LATE ULAHANNAN,**| ||**CHERIYAMPARAMBIL HOUSE,,**| ||**KOTTAMKODE, P.O.KUNDUKAD,**| ||**THRISSUR DISTRICT.,**| ||**(MINOR PETITIONERS 2 AND 3 REP.BY THEIR GUARDIAN,**| ||**AS NEXT FRIEND AND MOTHER SUJA,**| ||**AGED 27,W/O.LATE BABY,,**| ||**CHERIYAMPARAMBIL HOUSE,**| ||**KOOTAMKODE PO, KUNDUKAD,**| ||**THRISSUR DISTRICT)**| ## **BY ADV. SRI.P.V.CHANDRA MOHAN** MACA.No.1374 OF 2010 2 ## **RESPONDENTS:** - **1 P.K.ABBAS S/O P K MAMU PARAKKATTIL HOUSE, VADANAKURISSI-678001.** - **2 THE NEW INDIA ASSURANCE CO. LTD. M.A.LANE, G.B.ROAD, PALAKKAD 678001.** - **3 P.V.JAISON S/O.P.I.VAREED PUTHIRI HOUSE, MULLOORKARA 680583.** - **4 UNITED INDIA INSURANCE CO.LTD. DIVISIONAL OFFICE, THRISSUR, PIN-680001. R1 BY ADV. SRI.M.RAJAGOPALAN R1 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-03-2021, THE COURT ON 10-03-2021 DELIVERED THE FOLLOWING:** MACA.No.1374 OF 2010 3 ## **`P.V.KUNHIKRISHNAN, J`** ``` --------------------------------------- M.A.C.A. No. 1374 of 2010 ------------------------------------------ Dated this the 10[th] day of March 2021 ``` ## **`JUDGMENT`** ``` This appeal is filed against the award in O.P(M.V) No. 372/2003 on the files of the Motor Accidents Claims Tribunal, Thrissur. The appellants are the claimants in the above claim petition. It was a claim petition filed under Section 163A of the Motor Vehicles Act. (Hereinafter the parties are mentioned in accordance to their rank before the Tribunal) ``` `2. The short facts are like this:- On` ``` 08.02.1998, the deceased Baby was driving a lorry bearing Registration No. KER 3093 through Shoranur-Thrissur Public road, from South to ``` MACA.No.1374 OF 2010 4 ``` North with proper care and caution along the extreme left side of the road and when he reached near Vettikattiri, a Mauthi car bearing Registration No. KL-9E-2001 was proceeding in a same direction in front of the lorry and when the Maruthi Car driver gave signal to overtake and accordingly while the lorry was overtaking the Maruthi Car, it hit on a motor cycle bearing Registration No. KL-10E-5281 came from the opposite side. Thereafter, the lorry hit on the Maruthi car and he has lost his control of the vehicle and then it hit on an electric post and as a result of that it overturned and the deceased Baby sustained fatal injuries. Soon after the accident, he was taken to Medical College Hospital and he succumbed to his injuries on the very same day. The car was owned and driven by the 1[st] ``` MACA.No.1374 OF 2010 5 ``` respondent and the same was insured with the 2[nd] respondent. The motor cycle was driven by the 3[rd] respondent and the same was insured with the 4[th] respondent. Therefore, the claimants submitted that all the respondent are jointly and severally liable to compensate the petitioners. The petitioners claimed an amount of Rs.5,00,000/- (Rupees Five Lakhs Only) as compensation against the respondents jointly and severally. ``` ``` 3. To substantiate the case, Exhibit A1 to A7 were marked. After going through the evidence and documents, the Tribunal found that Section 163 A of the Motor Vehicles Act will not apply to an accident, wherein, owner of the vehicle himself is involved. The Tribunal found that liability under 163 A is on owner of vehicle and he cannot be both a claimant and also a recipient. Therefore, relying ``` MACA.No.1374 OF 2010 6 ``` the judgment of the Apex Court in Oriental Insurance Co. Ltd v. Rajanidevi [2008(4) KLT 145 SC], the Tribunal dismissed the claim petition. Aggrieved by the above award, this appeal is filed. ``` `4. Heard the learned counsel for the` `appellants and the learned counsel for the respondents.` ``` 5. The learned counsel for the appellants submitted that the finding of the Tribunal is unsustainable in the light of the settled position on this point. The counsel relied on the judgment of this Court inUnited India Insurance Co. Ltd. V. Mohanan[2011 (3) KLT 669] and the decision inUnited India Insurance Co. v. Madhavan ``` ``` [2011 (3) KLT 452]. ``` `6. The learned counsel for the respondents` `submitted that the Tribunal perfectly justified in` MACA.No.1374 OF 2010 7 ``` rejecting the claim petition in the light of the judgment in Rajanidevi (supra). He contended that the claim petition is not maintainable ``` ``` 7. After hearing both sides, according to me, there is some force in the arguments of the learned counsel for the appellants. Admittedly the claim petition is filed under Section 163 A of the Motor Vehicles Act. In the claim petition the 4[th] respondent is United India Insurance Co. Ltd. 4[th] respondent is the insurer of the motor cycle. Admittedly, the deceased was the driver of the lorry. This Court in Mohanan’s case (supra) held that, if two vehicles are involved in an accident and driver/rider of one vehicle suffers injury on account of his own alleged negligence, he is entitled to sustain a claim under Section 163A against owner and insurer of other vehicle. The relevant portion ``` MACA.No.1374 OF 2010 8 ## `of the above judgment is extracted herein: -` ``` “7. We must in this context assert that we find no reason to doubt the dictum in Malathi. The express language of S.163A makes it crystal clear that negligence is irrelevant in a claim under S.163A, if negligenceisirrelevant, contributory negligence must also definitely be held to be Irrelevant. A plain reading of S.163A must make it clear that the liability under S.163A does not at all depend on negligence or fault. The doubt expressed in Suresh v. Vasantha Shetty not withstanding, we are of opinion that we are bound by Malathi and will have to follow that decision. ``` ``` 8. The learned counsel for the appellant then contends that another Division Bench of this Court in (2009 (3) KLT 269) that is United ``` MACA.No.1374 OF 2010 9 ``` India Insurance v. Company Vijayarajan has already chosen to take the view that the dictum in Malathi is no more valid law in the light of the subsequent pronouncement of the Supreme Court in Ningamma v. United India Insurance Company, (2009 (3) KLT Suppl. 338 (SC) [2009 KHC 5046 : AIR 2009 SC 3056 : 2009 (13) SCC 710 : 2009 (8) SCALE 244). We have been taken through the decision in Ningamma and decision in Vijayarajan supra. Ningamma as well as Vijayarajan were cases in which claim was made by a rider / passenger in a vehicle / his legal heirs against the owner / authorised Insurer of that very vehicle. It was in that situation that Ningamma took the view that the deceased was not a third party and he steps into ``` MACA.No.1374 OF 2010 10 ``` the shoes of the owner. The owner himself cannot claim against any relief under S.163A and, therefore, the one who has stepped into the shoes of the owner cannot also claim against the owner of Insurance Company. This alone is the dictum in Ningamma. The Division Bench in Vljayarajan has not specifically adverted to the question as to what dictum in Malathi is opposed to the dictum In Ningamma. In Vijayarajan also it was a case of a Person who was riding his motorcycle which hit accidentally on a concrete electric post resulting in injuries to the rider to which injury he succumbed. The legal heirs of such rider had claimed compensation against the owner / authorised Insurer of the vehicle which the deceased was riding. It ``` MACA.No.1374 OF 2010 11 ``` was in that context that the dictum in Vijayarajan was rendered that such a claimant cannot claim under S.163A against the authorised Insurer of the vehicle which he was riding. According to us neither Ningamma nor Vljayarajan can have any application to the facts of the case. This is a case where the deceased was one riding motorcycle; It was Involved In an accident with another motor cycle and the legal heirs of the deceased have staked claims against the owner / authorised Insurer of the other vehicle Involved in the accident. The claim was not against the owner and / or the authorised Insurer of the vehicle which the deceased was riding. That makes the crucial distinction and because of that crucial distinction the dictum ``` MACA.No.1374 OF 2010 12 ``` in Ningamma or Vljayarajan can have no application to the facts of the case. ``` ``` 9. It is important to ascertain the rationale and the logic underlying S.163A of the Motor Vehicles Act. Groomed in the tradition of Law of Torts it may be difficult to understand the foundation of liability. The foundation of liability is certainly not fault. The liability under S.163A is not the liability recognised under the law of Tort. It is a different, distinct, absolute, statutory liability and the language of S.163A makes the position crystal clear. Search for negligence is not necessary and is not permitted under S.163A. The shift In emphasis under S.163A is from fault to suffering. It is the suffering endured in an accident ``` MACA.No.1374 OF 2010 13 ``` Involving a motor vehicle that gives rise to the liability under S.163A. Modern jurisprudence recognizes such no fault liability. In these circumstances, we are unable to accept the contention that in view of the finding in the impugned award, though unnecessary for the purpose of deciding the claim under S.163A, that the deceased was negligent and such negligence had resulted in the accident, the claim of the legal heirs of the deceased under under S.163A has to be repelled. Neither Ningamma nor Vijayarajan would justify the rejection of the claim of the claimants as legal heirs of the deceased rider.” ``` ``` 8. Similarly, in Madhavan’s case (supra) also this point is considered. The relevant paragraph is ``` MACA.No.1374 OF 2010 14 ## `extracted hereunder: -` ``` “6. There is nothing in S.163A to show that when two vehicles are involved, the claim must be staked against the owner and insurer of both vehicles. As in the case of S.140, we must hold that option is of the claimants to claim against the owner / insurer of either or both the vehicles. A claim under S.163A can lie only against the owner of the vehicle and the authorised insurer. It cannot lie against a driver (unless he is the owner also). The language of S.163 A makes the position crystal clear. In this case evidently realising the difficulty of recovering the amount from the owner of the other vehicle, which was not insured, the claimants have chosen to stake their claim only against the owner and the insurer of the vehicle in which the deceased was travelling. That option of the claimants is not in any way fettered ``` MACA.No.1374 OF 2010 15 ``` or restricted by the language of S.163A. We therefore feel it absolutely safe to conclude that in a claim under S.163A, option is on the claimants, where plurality of vehicles are involved in the accident, to stake the claim against either or both the owners / insurers of the vehicles involved. In that view of the matter, the claim in this case against the owner and insurer of the vehicle, in which the deceased was travelling without arraying the owner and insurer of the other vehicle involved in such accident, is perfectly justified and cannot be faulted.” ``` ``` 9. The tribunal rejected the claim petition mainly relying the judgment of the Apex Court in Rajanidevi’s Case (supra). But there is some difference in the present case. Admittedly, the claimants filed the claim petition arraying the ``` MACA.No.1374 OF 2010 16 ``` insurer of the motor cycle and the car which is involved in this accident. He is not flng the claim petition arraying the insurer of his own vehicle. In such situation, in the light of the decision in Madhavan’s case and in Mohanan’s case (supra), the finding of the Tribunal will not stand. Therefore, the impugned order is to be set aside and the matter is to be remanded to the Tribunal for fresh consideration. ``` `1. Therefore, this appeal is allowed. The award dated 29.01.2010 in O.P.(M.V) No. 372/2003 on the file of Motor Accidents Claims Tribunal, Thrissur is set aside.` `2. The Motor Accidents Claims Tribunal, Thrissur is directed to restore O.P(M.V)No.372/2003 and dispose the same afresh in accordance with law, after giving` MACA.No.1374 OF 2010 17 ``` opportunity to both sides to adduce further evidence, if any. ``` `3. Since it is a claim petition filed in the year 2003, the Tribunal will dispose of the claim petition as expeditiously as possible, at any rate, within four months from the date of receipt of copy of the judgment.` `4. The parties will appear before the Tribunal on 12.04.2021.` ``` Sd/- ``` ## **`P.V.KUNHIKRISHNAN`** ``` JUDGE ``` ``` avs ```