MACA Nos. 996 of 2011 & 1056 of 2011 v. Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 11TH DAY OF JULY 2018 / 20TH ASHADHA, 1940** ## **MACA.No. 996 of 2011** ## **AGAINST THE AWARD IN OPMV 1445/2002 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, THALASSERY DATED 13-05-2010** ## **APPELLANT/3RD RESPONDENT :** **THE ORIENTAL INSURANCE CO. LTD., KANNUR,** **REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI - 18.** **BY ADV.SRI.GEORGE CHERIAN (THIRUVALLA)** ## **RESPONDENT(S)/CLAIMANTS:** **1. NALINI C.V., C/O.LATE VINEETH, SAVITHA NIVAS, PALLIKKUNNU AMSOM, P.O. PALLIKUNNU, KANNUR DISTRICT - 670004.** **2. BHASKARAN C.K., S/O.KUNHAMBU,SAVITHA NIVAS, PALLIKKUNNU AMSOM, P.O. PALLIKUNNU, KANNUR DISTRICT - 670004.** **3. AJITHA C.C., D/O. BHASKARAN, SAVITHA NIVAS, PALLIKKUNNU AMSOM, P.O. PALLIKUNNU, KANNUR DISTRICT - 670004.** **4. SAJITHA C.C., D/O. BHASKARAN, SAVITHA NIVAS, PALLIKKUNNU AMSOM, P.O. PALLIKUNNU, KANNUR DISTRICT - 670004.** **5. RAJITHA C.C., D/O. BHASKARAN, SAVITHA NIVAS, PALLIKKUNNU AMSOM, P.O. PALLIKUNNU, KANNUR DISTRICT - 670004.** **6. SAVITHA C.C., D/O. BHASKASRAN, SAVITHA NIVAS, PALLIKKUNNU AMSOM, P.O. PALLIKUNNU, KANNUR DISTRICT - 670004.** **MACA.No. 996 of 2011** **7. KALLAN GIREESHAN, S/O. SREEDHARAN, KALLAN HOUSE, PADINHAREMOTTA, P.O. CHIRAKKAL, KANNUR DISTRICT - 670011.** **8. M. PRAKASHAN, S/O. KANNAN NAMBIAR, NALAVATTAM HOUSE, NARATH, P.O. NARATH, KANNUR DISTRICT, PIN-670603.** **9. UNITED INDIA INSURANCE CO. LTD., CHOVVA BRANCH, CALTEX JUNCTION, P.O. NARATH, KANNUR DISTRICT, PIN - 670002.** **R1 TO R6 BY ADV. SRI.P.U.SHAILAJAN R7 BY ADVS. SRI.M.V.AMARESAN SRI.V.N.RAMESAN NAMBISAN R9 BY ADV. SMT.P.A.REZIYA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11-07-2018, ALONG WITH M A C A NO. 1056/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RVS, 04/08/2018** ## **P.D.RAJAN, J** **- - - - - - - - - - - - - - - - - - -** M.A.C.A Nos.996 & 1056 of 2011 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 11[th] day of July, 2018 ## **JUDGMENT** These appeals are preferred against the award in O.P(MV) Nos.1445/2002 and 1500/2002 of the Motor Accidents Claims Tribunal, Thalassery by the insurer of the vehicle KL 13/E 575. In OP(MV) No.1445/2002, the learned Tribunal awarded Rs.1,96,500/- with 7.5% interest and cost and directed the insurer to pay 50% of the award amount Rs.98,250/- since there was contributory negligence from the side of the rider and in OP(MV) No.1500/2002, the learned Tribunal awarded Rs.42,600/- with 7.5% interest and cost and directed the insurer to pay 50% of the award amount, that is Rs.21,300/- and directed the appellant who is the insurer of the autorickshaw to satisfy the award. Being aggrieved by that, the insurer preferred M.A.C.A No.996/2011 against OP(MV) No.1445/2002 and M.A.C.A No.1056/2011 against OP(MV) No.1500/2002. 2. The claimant's case in the lower court was that on 28.07.2002 at 8.45 pm, the deceased Vineeth was riding a motor cycle KL 13/G 1196 and when he reached at ## **M.A.C.A Nos.996 & 1056 of 2011** **-2-** the place of occurrence, another vehicle KL-13-E-575 driven in a rash and negligent manner hit against the motor cycle, as a result the rider of the motor cycle died in the accident and the pillion rider sustained serious injuries. The dependents of the deceased preferred OP(MV) No.1445/2002 and the pillion rider preferred OP(MV) No.1500/2002. In the lower court, the accident was disputed by the insurer of the autorickshaw. Claimants examined PW1 to PW3 and their documents were marked Exts. A1 to A15. Respondents examined DW1 and marked Exts. B1 to B6 as their documentary evidence. 2. The learned counsel appearing for the appellant contended that the autorickshaw was not involved in the accident and there was no contributory negligence from the side of the driver of the autorickshaw. The accident was due to the negligence of the deceased, who was a rider of the motor cycle, who was charge sheeted by the Valapattanam Police. 3. The learned counsel appearing for the first respondent contended that the pillion rider filed a private complaint against the autorickshaw driver before the Judicial First Class Magistrate Court -II, Kannur, in which the accused ## **M.A.C.A Nos.996 & 1056 of 2011** **-3-** was acquitted. The scene mahazar prepared by the Valapattanam Police shows that there was serious damages to the autorickshaw and that itself is an evidence to prove the negligence of the rider of the autorickshaw. 4. The claim petition was preferred under Section 166 of the Motor Vehicles Act, 1988, subsequently both claims were converted under Section 163(A) of the Motor Vehicles Act, 1988. 5. Section 163(A) of the Motor Vehicles Act reads 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 subsection (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_ ## **M.A.C.A Nos.996 & 1056 of 2011** **-4-** _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.”_ 6. The application under Sec. 163A would be limited to 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 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. 7. According to proviso 163-A, generally in practical terms, it is found that discretion vested in assessment has to ## **M.A.C.A Nos.996 & 1056 of 2011** **-5-** 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 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. 8. A full bench decision of apex court in _**United India**_ _**Insurance Company Ltd vs. Sunil Kumar (2017 (4) KLT**_ ## **M.A.C.A Nos.996 & 1056 of 2011** ## _**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 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 self-contradictory but also defeat the very legislative intention_ _9. For the aforesaid reasons, we answer the question arising by holding that in a proceeding under S.163A of the Act it is not open for the Insurer to raise any defence of negligence on the part of the victim."_ ## 9. It is clear that the award under Section 163(A) on ## **M.A.C.A Nos.996 & 1056 of 2011** **-7-** the basis of structured formula is final award. The claimants are not required to prove the negligence of the driver and owner of the vehicle involved in the accident. Therefore, the defence raised by the insurer is unsustainable in law and the finding of the Tribunal fixing 50% negligence against the rider of the motor cycle is hereby set aside. The deceased was aged 23 years and his monthly income was claimed as Rs.3,000/- and the learned Tribunal took 8 as the multiplier of the parents, which is illegal. The correct multiplier is 17. If that be the position, the compensation is Rs.3,000x12x17= Rs.6,12,000/-, out of which 1/3[rd] is to be deducted. The balance is Rs.4,08,000/-. Along with that, Rs.2,000/- is awarded for funeral expense and Rs.2,500/- is awarded for loss of estate. Since the death was instantaneous at the time of accident itself, no amount is awarded towards medical expense. Therefore, the legal heirs of the deceased in M.A.C.A No.996/2011 are entitled to get Rs.4,12,500/- (Rupees Four Lakh Twelve Thousand Five Hundred only) with 9% interest and proportionate cost is awarded as compensation. 10. The appellant in M.A.C.A No.1056/2011 is entitled to get compensation of Rs.42,600/- (Rupees Forty Two ## **M.A.C.A Nos.996 & 1056 of 2011** Thousand Six Hundred only) with 9% interest and proportionate cost. The insurer is directed to satisfy the award in both cases within 30 days from the date of receipt of a copy of this judgment, failing which it will carry 12% interest from the date of default. M.A.C.A Nos.996 & 1056 of 2011 are disposed of, accordingly. Sd/- **P.D.RAJAN JUDGE** bng