M.A.C.A. Nos.1802 & 2297 of 2007

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** ## **TUESDAY, THE 12TH AUGUST 2008 / 21ST SRAVANA 1930** ## **MACA.No. 1802 of 2007()** **---------------------------------OPMV.1810/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA** **....................** ## **APPELLANT/PETITIONER IN OP(MV).** **-----------------------------------------------------** **SIJU, S/O LATE KALLIVALAPPAN POULOSE, KODAKARA VILLAGE, PERAMBRA DESOM, PERAMBRA P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** ## **BY ADV. SRI.P.V.BABY** **SRI.A.N.SANTHOSH** ## **RESPONDENTS: RESPONDENTS IN OP(MV)** **-------------------------------------------------------------** **1. M.K.RADHA, D/O METTAKKATTIL KUMARAN,** - **N.MAZHUVANNOOR P.O.** **2. RAJAN, S/O METTAKKATTIL KURUMBAN,** - **N.MAZHUVANNOOR P.O.** **3. MANAGER, NATIONAL INSURANCE CO. LTD., MEDICAL MISSION JUNCTION, KOLENCHERRY.** **ADV. SRI.RAJESH CHAKYAT FOR R1- R2** - **SRI.E.M.JOSEPH FOR R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Rs/** **M.N. KRISHNAN, J.** **= = = = = = = = = = = = = = M.A.C.A. NO. 1802 & 2297 OF 2007 = = = = = = = = = = = = = = = Dated this the 12[th] day of August, 2008.** **==> picture [118 x 9] intentionally omitted <==** MACA 1802/07 is preferred against the award of the Motor Accidents Claims Tribunal, Irinjalakuda in O.P.(MV) 1810/01 and MACA 2297/07 is preferred against the award of the Motor Accidents Claims Tribunal, Ottapalam in O.P. (MV)1032/04. The facts of the case in O.P.(MV)1810/01 is to the effect that the claimant therein was a two-wheeler mechanic and he was riding a motorcycle bearing registration No.KL-8/A 1058 through the Thrissur-Ernakulam sector on 14.7.01 and it collided with another vehicle bearing registration No.KL-7/T 2336 driven by the 2[nd] respondent therein. The petition is filed under Section 163-A of the M.V. Act against the driver, owner and the insurance company of the vehicle KL-7/T 2336. 2. The facts in O.P.(MV)1032/04 would reveal that the claimant was riding a motorcycle through the ThrissurChittur road when another motorcycle bearing registration M.A.C.A. Nos.1802 & 2297 OF 2007 -:2:- No.KL-8/X 4063 ridden by the first respondent hit on the motorcycle driven by the petitioner which resulted in injuries. There also the claim is filed against the rider, owner, and insurance company of KL-8/X 4063 originally under Section 166 of the M.V.Act and subsequently amended to one Section 163A. 3. O.P.(MV)1810/01 was dismissed by the Tribunal and in the other case the Tribunal awarded a compensation of Rs.27,200/-. Aggrieved by the decision in O.P.(MV) 1810/01, the claimant has preferred the appeal and aggrieved by the decision in the other case the insurance company has come up in appeal. The points argued are, (1) When an accident takes place on account of the rash and negligent riding of the victim whether he will be entitled to compensation u/s 163-A of the M.V.Act? (2) Whether in such cases when there is another vehicle involved in the accident whether the claimants are M.A.C.A. Nos.1802 & 2297 OF 2007 -:3:- entitled to get compensation from those vehicles alone without making the owner and insurance company of the vehicle which was ridden by the claimants? (3) Whether the question of joint and several tortfeasors arise for consideration in such cases? ## **Points 1 to 3:** It is profitable to quote Section 163-A of the M.V.Act to ## understand the contentions between the parties. “S.163A(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 the 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 M.A.C.A. Nos.1802 & 2297 OF 2007 **==> picture [22 x 9] intentionally omitted <==** 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 of the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.” 4. Under Section 163-A(1) the claimant is entitled to claim compensation on a structural formula basis and under Section 163A(2) 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 on any other person. The learned counsel in both the cases representing insurance companies would contend that when the victim himself is responsible for the accident he cannot be given the protection under Section 163A of the Act and therefore he is not entitled to claim any M.A.C.A. Nos.1802 & 2297 OF 2007 -:5:- compensation at all. This point has been precisely considered by a Full Bench decision of this Court reported in ## _**National Insurance Co. Ltd. v. Malathi C. Salian (2003**_ ## _**(3) KLT 460)(FB)**_ . It is held therein that, “Insurance Company cannot defeat a claim under u/s 163-A on the ground that the death or disablement had occurred due to the wrongful act, neglect or default on the part of the deceased or the disabled person.” 5. Again in the decision reported in _**United India Insurance Co. Ltd. v. Rukiya (2006 (4) KLT 192)**_ this Court held that owner of the vehicle or insurer cannot plead the absence of negligence on their part and no evidence can be adduced on negligence aspect. So it has been held that a victim who is negligent is also entitled to claim compensation u/s 163A. 6. A recent decision rendered by the Karnataka High Court reported in _**Oriental Insurance Co. Ltd. v. Salma**_ M.A.C.A. Nos.1802 & 2297 OF 2007 -:6:- _**2008 ACJ 1197**_ also considered the point whether a claim application u/s 163A is maintainable when the accident had occurred due to the negligence of the victim. The Karnataka High Court found it is maintainable. 7. Learned counsel for the insurance company has cited a decision of the Apex Court reported in _**Deepal Girishbhai Soni v. United India Insurance Co. Ltd.**_ _**(2004 (2) KLT 395)(SC)**_ and would contend that it is not maintainable. A reference to paragraph 66 of the judgment therein would show that the Apex Court also held that S.163A of the Act cover cases where even negligence is on the part of the victim. This aspect was considered by the Division Bench of the Karnataka High Court as well while rendering the decision referred to above and held that even if it is a obiter dicta made in the decision of the Apex Court it is binding on the Court and this Court is not competent to interpret the decision of the Supreme Court. So the M.A.C.A. Nos.1802 & 2297 OF 2007 -:7:- decisions referred to above would indicate that even if the victim was negligent an action will lie u/s 163A. Further the question of negligence does not arise for consideration at all in a proceeding u/s 163A in the light of the specific provision u/s 163A(2) which disentitles the Court to consider the question of negligence in such cases. Therefore I cannot accept the contention of the learned counsel appearing for the insurance companies that when the victim is negligent no action will lie u/s 163A. 8. The next question to be considered is when two vehicles are involved in an accident and the rider of one of the vehicles sustains injury whether he can get compensation from the owner, insurer and the driver of the other vehicle or whether he has to get it from both. When two vehicles collided and when the third party is concerned the question of negligence u/s 166 would be in the characteristic of composite negligence. U/s 166 when it is considered between M.A.C.A. Nos.1802 & 2297 OF 2007 -:8:- the two riders it may come to contributory negligence. But in a proceeding u/s 163A neither the question of composite negligence nor the question of contributory negligence arise for determination in view of the specific provision contained u/s 163A(2) that no enquiry is contemplated regarding the question of negligence. What is contemplated u/s 163A is the sustainment of an injury arising out of the use of a motor vehicle. It is true that the claimant was also using the motor vehicle but the accident took place on account of the impact between his vehicle and another vehicle. So far as the another vehicle is concerned there is a collision between the two and so it is to be held that it had arisen out of the use of the motor vehicle which takes in that vehicle also. Further with respect to that vehicle the claimant is a third party. Therefore the contention that without the junction of the owner, and insurance company of the vehicle in which he was riding the petition is not maintainable is not correct. This M.A.C.A. Nos.1802 & 2297 OF 2007 -:9:- is based on another broad principle. The claim for compensation generally depends upon the tortious act. It is the tortious act which causes preliminary liability on the driver and the vicarious liability on the owner. It is that vicarious liability of the owner that is being indemnified by virtue of the contract of insurance between the insurance company and the owner. So in a case where the question who has been negligent is to be worked out and the Court has to decide on these factors. But in a case where the Court is precluded from considering the question of negligence, such issue cannot arise for consideration and therefore I am of the strong view and found that petition filed against the rider, owner and the insurance company of the other motor vehicle is perfectly and legally maintainable and competent. So far as the decision referred to by the learned counsel reported in _**Thomas v. Mathew (1995 (2) KLT 260),**_ it was a case with reference to S.140 of the M.A.C.A. Nos.1802 & 2297 OF 2007 **==> picture [28 x 9] intentionally omitted <==** M.V.Act and the Court has also addressed its finding regarding the negligence and this Court held that the joint and several liability is to be considered. It was distinguished by a Division Bench in the very same year and subsequently the decision referred to above has been over ruled by a Full Bench of this Court reported in _**Oriental Insurance Co. Ltd. v. Santha (1999 (3) KLT 425)(FB)**_ . This Court held that the approach of the Tribunal in adjudicating the claims under Ss.140 and 166 of the Act is different. Tribunal is required to satisfy itself that the accident has arisen out of the use of the motor vehicle, that the said accident has resulted in permanent disablement of the person who is making the claim or death of the person whose, legal representatives are making the claim. Once these particulars are furnished the Tribunal is bound to order compensation irrespective of the fact whether the claim is made by a third party or not and thereafter held that the ruling of the M.A.C.A. Nos.1802 & 2297 OF 2007 -:11:- Division Bench reported in _**Thomas v. Mathew (1995 (2) KLT 260)**_ is not correct and overruled the same. So from these materials I conclude that, (1) An application filed by a victim who is alleged to be negligent is maintainable u/s 163A of the M.V.Act. (2) In such cases such a claimant or his legal representatives are entitled to claim compensation from the other vehicle which was involved in the accident with which a collision takes place. (3) The question of tortfeasor or joint and several liability with respect to these two vehicles does not arise for consideration and such an enquiry on the question of negligence is not within the realm of consideration of the Court u/s 163A of the Act. Therefore MACA 2297/07 is dismissed and MACA 1802/07 is allowed and therein, the claimant is awarded a compensation of Rs.40,414/- with 6% interest on the said M.A.C.A. Nos.1802 & 2297 OF 2007 **==> picture [28 x 9] intentionally omitted <==** sum from the date of petition till realisation and the insurance company is directed to deposit the same within a period of sixty days from the date of receipt of a copy of the judgment. ## **M.N. KRISHNAN, JUDGE.** ul/-