MACA Nos. 677 & 885 of 2012: Chandran Pillai and others v. Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY ,THE 23RD DAY OF NOVEMBER 2018 / 2ND AGRAHAYANA, 1940** ## **MACA.No. 677 of 2012** **AGAINST THE AWARD IN OPMV 1477/2007 of M.A.C.T.,KOLLAM DATED 2911-2011** ## **APPELLANTS/PETITIONERS:** **1 CHANDRAN PILLAI S/O.KRISHNA PILLAI, VIPIN BHAVANAM, (KOCHUKALEEKKAL), MEMANA WARD, OACHIRA, KARUNAGAPPALLY.** - **2 VALSALA W/O.CHANDRAN PILLAI, VIPIN BHAVANAM (KOCHUKALEEKKAL), MEMANA WARD, OACHIRA, KARUNAGAPPALLY.** - **3 VINAYAK S/O.CHANDRAN PILLAI, VIPIN BHAVANAM (KOCHUKALEEKKAL), MEMANA WARD, OACHIRA, KARUNAGAPPALLY.** **BY ADV. SRI.PRATHEESH.P** ## **RESPONDENT/3RD RESPONDENT:** **ORIENTAL INSURANCE CO.LTD. KOLLAM-691001 REPRESENTED BY DIVISIONAL OFFICER.** **BY ADV. SRI.A.R.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.11.2018, ALONG WITH MACA.885/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.Nos. 677 & 885 of 2012 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY ,THE 23RD DAY OF NOVEMBER 2018 / 2ND AGRAHAYANA, 1940** **MACA.No. 885 of 2012** **AGAINST THE AWARD IN OPMV 1477/2007 of M.A.C.T.,KOLLAM DATED 29-11-2011** ## **APPELLANT/3RD RESPONDENT IN THE OP:** **THE ORIENTAL INSURANCE CO.LTD. KOLLAM, REPRESENTED BY THE AUTHORISED SIGNATORY, THE ORIENTAL INSURANCE CO.LTD, REGIONAL OFFICE ERNAKULAM, METRO PALACE, ERNAKULAM NORTH,KOCH-18.** **BY ADV. SRI.A.R.GEORGE** ## **RESPONDENTS/CLAIMANTS & RESPONDENTS 1,2 ADN 4 TO 7 IN THE OP:** - **1 CHANDRAN PILLAI S/O.KRISHNA PILLAI, VIPIN BHAVANAM, (KOCHUKALEEKKAL) MEMANA WARD, OCHIRA P.O., KARUNAGAPPALLY. 690 526.** - **2 VALSALA W/O.CHANDRAN PILLAI, -DO-** - **3 VINAYAK S/O.CHANDRAN PILLAI, -DO-** - **4 SOMANATHAN NAIR S/O.SANKARA PANICKER, KAVATHARA HOUSE, KUMARAPURAM P.O, HARIPPAD, ALAPPUZHA 690 548.** - **5 K.GIRISH KUMAR S/O.KRISHNA PILLAI, KANJIRAVALLY P.O.,PUTHUPPALLY NORTH, KAYAMKULAM 690 527.[DELETED]** - **6 JOSEPH MATHAI** MACA.Nos. 677 & 885 of 2012 3 **S/O.MATHAI CHACKO, MULAMOOTTIL HOUSE, AMICHAKIRY P.O, THIRUVALLA 689 571.** **7 THE NATIONAL INSURANCE CO.LTD KOLLAM P.O., PIN- 691 001.** **8 ISSAC MATHEW MANAPPARAMBIL VEEDU, VALANJAVATTOM, THIRUVALLA P.O., PIN-689 104.** **9 C.P.THOMAS S/O.JOSEPH, MUSHARUPARAMBIL VEEDU, THATHAMPALLIKKARA P.O, AMBALAPPUZHA 688 013. [DELETED][RESPONDENTS 5 AND 9 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 16.03.2016 IN IA 720/16 IN MACA NO.885/2012.]** **BY ADVS. SRI.PRATHEESH.P SRI.LAL K.JOSEPH SRI.S.SUBHASH CHAND SRI.T.P.PRADEEP SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.11.2018, ALONG WITH MACA.677/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.Nos. 677 & 885 of 2012 4 ## **JUDGMENT** These appeals are preferred against the award in OP(MV) No.1477/2007 of the Motor Accidents Claims Tribunal, Kollam. On 26.08.2006 at 1.20 pm, the deceased met with an accident while riding a motor cycle and the learned Tribunal awarded compensation of Rs.3,08,500/-. Being aggrieved by that, claimants preferred M.A.C.A No.677/2012 and the insurer preferred M.A.C.A No.885/2012. 2. The accident was not disputed by the respondents in the lower court. Petitioners case was that on 26.08.2006 at 1.20 pm, the deceased was riding KL-03/F 4637 along the Kollam - Alappuzha NH road, when he reached at the place of occurrence, another vehicle KL-04/C 6613 driven in a rash and negligent manner hit against the motor cycle, as a result, the rider sustained serious injuries. While undergoing treatment, he succumbed to the injuries. The driver and owner of the offending vehicle were set ex-parte. The insurer of both vehicles filed a written statement. The insurer of the lorry admitted the insurance of the vehicle. Claimants were examined as PW1 and their documents were marked as MACA.Nos. 677 & 885 of 2012 5 Exts.A1 to A5. Respondents evidence consist of documentary evidence of Ext.B1. 3. Section 163(A) of the Motor Vehicles Act read ## as follows: _“S.163-A. 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 of 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._ _(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.”_ 4. The application under Sec.163A would be limited for the only victims who had income upto Rs.40,000/- per annum and those victims who had income beyond Rs.40,000/per annum are required to go for claim under Sec.166 of the MACA.Nos. 677 & 885 of 2012 6 Act. Sec.163-A is provided for the person having fixed income with an instant relief with low income upto Rs.40,000/- per annum. Persons with high income may also be equally needy if they lose the bread-winner on calculating Rs.40,000/- per annum. Application under Sec.163-A is not tenable if made by a person whose income exceeds Rs.40,000/- per annum. But, in case the person with the higher income notionally brings down his income to Rs.40,000/- in order to present his claim under Sec. 163-A, the same can be permitted. In calculating the amount of compensation, the Court must lean to adopt the structured formula provided in the Second Schedule. 5. According to proviso 163-A generally in practical terms it is found that discretion vested in assessment has to be on the basis of injury sustained to the victim and also on the nature of evidence in that case. In injury cases the damages are to be assessed separately as pecuniary and special damages. The object is to compensate injured so far as money can compensate and for pain, suffering and loss of amenities in life, special circumstances of the claimant have to be taken into account. The compensation for non-pecuniary loss is not easy to determine, but award must reflect that MACA.Nos. 677 & 885 of 2012 7 different circumstances have been taken into consideration. The assessment of compensation in permanent disability case would differ from person to person according to the nature of injury. Vast discretion is vested with the court for assessment of just compensation in injury cases. There can be no uniform standard and yardstick provided for assessing such compensation. The scope for awarding general damages and special damages are too wide for articulation. It is settled law that compensation for injury claims would be higher than that in death cases. The reason is that the injured has to suffer disability for the remaining period of his life. ## 6. Apex Court in _**United India Insurance Co. Ltd.**_ ## v. _**Sunil Kumar [2017 (4) KLT 1093 (SC)]**_ held as follows: “ _8. From the above discussion, it is clear that grant of compensation under S.163A of the Act on the basis of the structured formula is in the nature of a final award and the adjudication thereunder is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle(s) involved in the accident. This is made explicit by S.163A(2). Though the aforesaid section of the Act does not specifically exclude a possible defence of the Insurer based on the negligence of the claimant as contemplated by S.140(4), to permit such defence to be introduced by the Insurer and/or to understand the provisions of S.163A of the Act to be contemplating any such situation would go contrary to the very_ MACA.Nos. 677 & 885 of 2012 8 _legislative object behind introduction of S.163A of the Act, namely, final compensation within a limited time frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability was taking an unduly long time. In fact, to understand S.163A of the Act to permit the Insurer to raise the defence of negligence would be to bring a proceeding under S.163A of the Act at par with the proceeding under S.166 of the Act which would not only be selfcontradictory but also defeat the very legislative intention. ”_ 7. Negligence is not significant in view of _**Sunil Kumar'**_ case (supra) for awarding compensation under Section 163(A) of the Motor Vehicles Act, 1988. The Tribunal took Rs.2,000/- as the monthly income and awarded just amount as compensation. No documents were produced in the lower court to increase the income. If that be the position, there is no merit in these appeals. In the circumstance, M.A.C.A Nos.677/2012 and 885/2012 are dismissed accordingly. Sd/- **P.D.RAJAN JUDGE** bng/28.11.18