MACA.No. 3327 of 2014

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 8TH DAY OF APRIL 2016/19TH CHAITHRA, 1938 **MACA.No. 3327 of 2014 () -------------------------** (AGAINST THE AWARD IN OPMV 1730/2003 of M.A.C.T.,ATTINGAL DATED 15-03-2010) APPELLANT(S)/PETITIONER: ----------------------- THAJUDEEN, S/O.JAMAL MOHAMMED, THADATHARIKATHU VEEDU, MELEPALUVALLY, PANGODE P.O.(VIA), KALLARA, TRIVANDRUM DISTRICT. BY ADVS. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.BENOJ C AUGUSTIN SRI.SEBIN THOMAS SRI.PRATHAP PILLAI SMT.J.KASTHURI RESPONDENTS/RESPONDENTS: -------------------------- 1. JAFARUDEEN, S/O.JAMAL MOHAMMED, THADATARIKATHU VEEDU, PALUVALLY, PANGODU P.O., KALLARA, NEDUMANGADU, THIRUVANANTHAPURAM 1 DISTRICT. 2. M/S.ORIENTAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE NO.II, ST.MARY VILLA, ULLOOR, MEDICAL COLLEGE P.O., TRIVANDRUM. R2 BY ADV. SRI.VPK.PANICKER BY SMT.K.S.SANTHI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD\ ON 08-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.** .............................................................................. **M.A.C.A.No.3327 OF 2014** ......................................................................... **Dated this the 8[th] April, 2016** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** Dismissal of the claim petition filed under Section 163A of the Motor Vehicles Act, seeking compensation for the injuries sustained in a road traffic accident occurred on 23.09.2003, made the claimant feel aggrieved; which forms the subject matter of this appeal preferred by him. 2. On 23.09.2003, the appellant was riding a motor cycle bearing No.KL.16/2269 belonging to the first respondent and insured by the second respondent; and when he reached the place of accident, the bike allegedly collided with an autorickshaw bearing No.KL.01/Q-6644 and he sustained injuries. Immediately, he was taken to the Government Hospital, Kallara, from where he was referred to the Medical College Hospital, Thiruvananthapuram, where he continued treatment; both as an **2** ## **M.A.C.A.No.3327 OF 2014** inpatient and outpatient. After discharge from the hospital, the loss was sought to be compensated by filing claim petition before the Tribunal, arraying only the owner and insurer of the motor cycle ridden by him as the respondents and without impleading the driver, owner and insurer of the autorickshaw in the party array. 3. The owner of the motor cycle did not choose to contest the matter. The claim was resisted by the second respondent Insurance Company, pointing out that, it was bad for non-joinder of necessary parties in view of collision with the autorickshaw. Though the existence of valid policy in respect of the motor cycle as on the date of the accident was admitted, the liability was disputed on various grounds. 4. The only evidence before the Tribunal consists of Exts.A1 to A11 and the deposition given by the concerned doctor, who had issued some of the documents/medical certificates. After analysing the pleadings and evidence on record, the Tribunal found that, as per Ext.A5 charge sheet, one Ajayakumar, who **3** ## **M.A.C.A.No.3327 OF 2014** was the driver of the autorickshaw was proceeded against by the police under Sections 279, 337 and 338 IPC and other offences under Section 134 (a & b) and Section 3(1) read with Section 181 of the Motor Vehicles Act. Still, neither the driver nor the owner of the autorickshaw or even the insurer was chosen to be impleaded in the party array. No claim was raised against them and no relief was sought for, but for confining the relief/compensation from the owner of the motor cycle insured by the second respondent, which was being ridden by the claimant himself. 5. After appreciating the evidence, the Tribunal held that, if at all any compensation was to be paid, it was to be shared equally between the vehicles and it was rather strange to note that, inspite of the charge sheet filed against the driver of the autorickshaw, the owner and driver of the autorickshaw were not impleaded as respondents and that no explanation was forthcoming for the same. The Tribunal further held that, even if it was assumed for the arguments' sake, that the claimant was **4** ## **M.A.C.A.No.3327 OF 2014** satisfied with an award from the respondents alone (owner and insurer of the motor cycle) and no relief was sought for against the owner and insurer of the autorickshaw, the applicant was bound by his pleadings, and if so, he will be bound by the legal consequences as well. Placing reliance on the verdict passed by a Division Bench of this Court in _**United India Insurance Co.Ltd. vs. Vijayarajan**_ ( **2009(3) KLT 269)** (which was rendered by relying on the verdict passed by the Apex Court in Civil Appeal Nos. 3538 and 3540 of 2009) that the claim in respect of a person who was using the motor cycle with the permission of the registered owner and if the accident was occurred also because of his negligence, no claim was to be entertained under Section 163A of the Act. Reliance was also placed on the decision of the Apex Court in **AIR 2009 SC 1788** ( **New India Assurance Co. vs. Sadanandamuki and others)** explaining the scope of Section 147 of the M.V. Act and held that the claim was unfounded and was not liable to be entertained, thus resulting in the dismissal of the O.P. (MV)No.1730 of 2003, **5** ## **M.A.C.A.No.3327 OF 2014** which led to the present appeal. 6. Heard the matter at length. 7. Admittedly, the injuries were sustained in an accident occurred because of collision between the motor cycle ridden by the appellant and an autorickshaw. It is also evident that the driver, owner and insurer of the autorickshaw were never impleaded in the party array and no relief was sought for against them; despite raising a specific contention in this regard as to non-joinder of necessary parties in the written statement filed by the respondent Insurance company. In so far as the claimant has not chosen to raise or establish any claim against the parties to the autorickshaw and since they have not been impleaded in the party array, no compensation can be awarded against them. The question to be considered is whether the appellant/rider is liable to be compensated by the first respondent/owner of the motor cycle ridden by him and its insurer-the second respondent. 8. By virtue of the undisputed pleadings, since the appellant/rider himself was riding the motor cycle belonging to **6** ## **M.A.C.A.No.3327 OF 2014** the first respondent/registered owner, it cannot but be held that he was riding the motor cycle with the permission of the owner. Under such circumstance, the rider steps into the shoes of the owner as held by the Apex Court and as such, he is not entitled to be compensated for the deeds and misdeeds on his part. This, exactly has been held by this Court as well, as per the decision reported in **2009 (3) KLT 269 (cited supra)** and as such, the verdict passed by the Tribunal is well within the four walls of law, which is not liable to be interfered. 9. But at this juncture, the learned counsel for the appellant raised a contention that Section 163A stands on a different footing, where negligence is not liable to be pleaded or proved by the victim. It is stated that there is a 'non-obstante clause' in the said provision, by virtue of which all other requirements under the Motor Vehicles Act stand eclipsed and the appellant is entitled to get compensation in so far as there was involvement of the vehicle ridden by him in the accident, which aspect is established from the police records and other documents produced. It is also **7** ## **M.A.C.A.No.3327 OF 2014** added that Section 163A is a conscious deviation with regard to payment of compensation and as such, dismissal of the claim petition without any regard to the said aspect has resulted in miscarriage of justice and hence sought to be interfered. 10. The learned counsel for the Insurance company contended that the issue is no more 'res integra', since the position has been subsequently clarified by the Supreme Court laying down the law as per the decision in _**National Insurance Company Ltd. vs. Sinitha**_ **(2011(4) KLT 821 [SC])** holding that the claimant is not entitled to get compensation under Section 163A, if negligence on his part is proved and established. The said judgment has been followed by a Full Bench of this Court as per the decision in _**Oriental Insurance Co.Ltd. vs. Joseph**_ **[2012 (2) KLT 132 (FB)** . 11. It is however pointed out that the said decision of the Supreme Court has been doubted and referred to a Larger Bench as per the order passed in **United India Insurance vs. Sunil Kumar 2013 (4) KLT 488(SC)** . But the law as it now **8** ## **M.A.C.A.No.3327 OF 2014** stands, with binding effect with regard to Article 141 of the Constitution of India is the one rendered by the Apex Court in **2011 (4) KLT 821(SC) (cited supra).** The scope of Section 163A has been discussed in several decisions at different points of time. Still, it was felt useful to have a threadbare analysis once more with reference to the intention of the legislature and this has already been done as per the verdict passed by this Court in M.A.C.A.No.2021 of 2015. 12. From the above, it is quite evident that Section 163A was introduced by the law makers only to provide payment of compensation, on the basis of a pre-determined formula as given in the second schedule, so as to maintain consistency throughout the country, providing for uniform compensation in similar cases and to avoid variations to the extent possible. The benefit stands limited to the particular category of people having a maximum income upto Rs.40000/- per annum. Eligibility confined to the said extent was asserted by the 'three member' Bench of the Apex Court in **(2004) 5 SCC 385 (Deepal Girishbhai Soni vs.** **9** ## **M.A.C.A.No.3327 OF 2014** **United India Insurance Co. Ltd.)** and in 'paragraph 67' of the verdict, it has been held that persons having higher income cannot seek compensation under Section 163 A by bringing a cap/artificial ceiling, which actually is intended for the specified class. 13. The significant absence of the provision like sub-section (4) of Section 140, when it comes to Section 163A, was highlighted by the Supreme Court in **Sinitha's** case (cited supra) and it was accordingly held that, though there is no burden to plead or prove negligence on the part of the claimant in a case under Section 163 A, the position will be different once it is proved and further that the statute does not intend to extend any benefit to a wrong-doer. The 'non-obstante clause' in Section 163A is only with regard to the 'procedure' prescribed under the Act and not in relation to its basic feature in relation to the mandatory requirements. If the version of the appellant that nothing else in the Act is to be considered, is to be accepted, then it may lead to a situation where compensation will have to **10** ## **M.A.C.A.No.3327 OF 2014** be paid even to a wrong-doer, who is not even entitled to get licence to drive the vehicle, but invites the accident due to his own deeds and misdeeds. It may also have to be paid without looking at anything else, such as when a transport vehicle is driven without valid permit or without valid fitness certificate; when a vehicle is driven under influence of alcohol; on carrying persons in a Goods Carriage contrary to the statute or on using the vehicle for purpose which is not provided/permitted by the manufacturers or covered by permit/policy. The provision cannot be stretched to such extent. The 'purpose' behind Section 163A of the Act is entirely different and it was never intended to give benefit to the wrong-doers, as evident from the object and reasons of the amending Act and the Parliamentary debate on the Bill introduced in this regard. 14. The circumstances under which Section 163A of the Motor Vehicles Act, 1988 came to be introduced into the statute book, the parliamentary debate in this regard (to understand the intention of the legislature) etc., have been referred to by this **11** ## **M.A.C.A.No.3327 OF 2014** Court already, in a similar matter and we have pronounced a detailed judgment in the said case **(MACA No.2021 of 2015)** . The position in the said case equally governs this case as well. This Court finds that there is absolutely no merit in the appeal and it stands dismissed accordingly. However, it is made clear that if the reference pursuant to the order reported in **2013(4) KLT 488(SC)** (cited supra) comes to be answered by the Larger Bench of the Apex Court in favour of the persons like the applicant, he will be at liberty to get the matter re-opened. **P.R. RAMACHANDRA MENON, JUDGE** **ANIL K. NARENDRAN, JUDGE** lk