National Insurance Co. Ltd. v. Surayya Nizar and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 7TH SEPTEMBER 2011 / 16TH BHADRA 1933 MACA.No. 1444 of 2011() ----------------------OPMV.2448/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): -------------- THE NATIONAL INSURANCE CO.LTD., REGIONAL OFFICE, M.G.ROAD, ERNAKULAM-35, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM-35. BY ADV. SRI.LAL GEORGE RESPONDENT(S): PETITIONERS 1-4 AND R5&6 IN OPMV 2448/05. -------------------------------------------------------- 1. SURAYYA NIZAR, AGED 40 YEARS, W/O.LATE T.A.NIZAR, MALARKANDATHIL,DOOR NO.13/1191 -A, KARUVELIPADY, THOPPUMPADY P.O., THOPPUMPADY VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT-682005. 2. MUHAMMED NISHAN @ NISHAN(MINOR), AGED 18 YEARS, S/O.LATE T.A.NIZAR, MALARKANDATHIL, DOOR NO.13/1191-A,KARUVELIPADY, THOPPUMPADY P.O., THOPPUMPADY VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT REPRESENTED ITS BY MOTHER MRS.SURAYYA NIZAR-682005. 3. MUHAMMED NISHAL N., (MINOR) AGED 14 YEARS, S/O.LATE T.A.NIZAR, MALARKANDATHIL, DOOR NO.13/1191-A,KARUVELIPADY, THOPPUMPADY P.O., THOPPUMPADY VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT REPRESENTED ITS BY MOTHER MRS.SURAYYA NIZAR-682005. **......2** **-: 2 :-** 4. NAFIYA NIZAR @ N.NAFIYA (MINOR), AGED 8, S/O.LATE T.A.NIZAR, MALARKANDATHIL, DOOR NO.13/1191-A,KARUVELIPADY, THOPPUMPADY P.O., THOPPUMPADY VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT REPRESENTED ITS BY MOTHER MRS.SURAYYA NIZAR-682005. 5. KHADER VALLI S.K., C/O.KHADAR VALLI BABU TYRE WORKSHOP, LINONS COMPLEX HALL, HANUMAN JUNCTION, VIJAYAWADA ROAD, KRISHNA DISTRICT, ANDHRA PRADESH-520001. 6. VIJOY VICTOR @ VIJOY, - S/O.VICTOR, 9/357, ODATHAKKAL HOUSE, VELI, FORT KOCHI P.O., COCHIN-682001. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: # **R. BASANT & K. SURENDRA MOHAN, JJ.** **------------------------------------------------M.A.C.A. No. 1444 of 2011 ------------------------------------------------Dated this the 7[th] day of September, 2011** ## **JUDGMENT** ## **Basant,J.** The insurance company is the appellant. An accident had occurred on 29/3/2005. There was a collision between the insured lorry and a car. Three persons sustained injuries. Two of them succumbed to those injuries. One of them, who succumbed to the injuries, is the driver of the car. His dependents/legal heirs preferred a claim before the Tribunal for compensation. 2. They chose to claim compensation under Sec.163A of the Motor Vehicles Act. The Tribunal, by the impugned award, directed payment of compensation under Sec.163A of the M.V. Act. The insurer of the lorry, the appellant herein, was made ## **M.A.C.A. No. 1444 of 2011** -: 2 :- entirely liable to satisfy the award under Sec.163A of the M.V. Act. The appellant claims to be aggrieved by the impugned award. 3. We have heard the learned counsel for the appellant in detail. Called upon to explain the challenge and be specific, the learned counsel for the appellant submits that the appellant/ authorized insurer of the lorry involved in the accident, wants to challenge the impugned award only on one ground. The learned counsel for the appellant argues that the accident had taken place on account of the negligence on the part of the driver of the car involved in the accident i.e., the predecessor of the claimants who have now staked the claim for compensation. 4. The learned counsel for the appellant submits that even in a claim under Sec.163A of the M.V. Act, the tort feasor - the driver, on account of whose negligence the accident took place, or his legal heirs, cannot claim any compensation. The learned counsel builds up an argument on the theory that a tort feasor cannot claim compensation for his own fault. In these circumstances, the learned counsel submits that the substratum or the basis the impugned award is not legally supportable. 5. We have heard the learned counsel for the appellant in **M.A.C.A. No. 1444 of 2011** -: 3 :- detail. We must say that we are unable to accept the contention laboriously advanced by the learned counsel for the appellant. To our mind, there is gross misconception about the nature of the liability under Sec.163A of the M.V. Act. Groomed in the tradition of the law of torts, the conventional law man in India is unable to comprehend and digest the nature of the liability under Sec.163A of the M.V. Act. Another Bench of this Court (one of us were on that Bench) had considered this question in detail in the decision in **National Insurance Company Limited v. P.C. Chacko and others** (2011 (3) KHC 438). It has been clearly held that the liability under Sec.163A of the M.V. Act is an absolute, distinct statutory liability which does not have its foundation on the concept of negligence. The foundation of liability under Sec.163A is not the tortuous liability. There is a big distance from fault to suffering and Sec.163A of the M.V. Act makes the attempt to traverse that journey from fault to suffering as the foundation of liability. This concept of no fault liability was recognized by the Indian law under Sec.140 of the M.V. Act and its predecessor provision. Negligence is irrelevant in a claim under Sec.163A of the M.V. Act. Since negligence is irrelevant, contributory negligence is also absolutely irrelevant. ## **M.A.C.A. No. 1444 of 2011** -: 4 :- In a claim under Sec.163A of the M.V. Act the scope of enquiry is very very limited. In a claim under Sec.163A of the M.V. Act for compensation in the case of death, the court must certainly ask itself certain fundamental questions. They are: (i) Is the claimants the legal heirs of the deceased? (ii) Did death occur as a result of a motor accident? (iii) Is the respondent, the owner or insurer of the vehicle involved in the accident? (iv) What is the amount payable under the Second Schedule of the M.V. Act? 6. If the above questions are answered favourably, the Tribunal has to proceed to direct payment under Sec.163A of the M.V. Act. A Full Bench of this Court in **National Insurance Co.** **Ltd., v. Malathi C. Salian** (2003 (3) KLT 460) has taken the view that negligence is irrelevant and that the alleged contributory negligence cannot defeat a claim under Sec.163A of the M.V. Act. It is, of course, true that a subsequent Division Bench in **Suresh v. Vasantha Shetty** (2009 (1) KLT 72) has expressed doubts/reservations about the acceptability of the dictum in **Malathi** (supra). We do not share that reservation or dissatisfaction. We are clear in our mind that the liability under **M.A.C.A. No. 1444 of 2011** -: 5 :- Sec.163A is not built on the liability under the law of torts. It is, we repeat and reiterate, a distinct, separate, absolute statutory liability. We are bound by **Malathi C. Salian** which holds the field now. The legislature was persuaded to introduce such a concept of no fault liability for full and final settlement of the claim for compensation under Sec.163A of the M.V. Act by various compulsions including the necessity to liquidate the long queue of claimants waiting before the Motor Accidents Claims Tribunals. As part of the legislative anxiety to ensure rough and ready justice expeditiously and inexpensively to the victims of motor accidents, the legislature has devised the scheme under Sec.163A of the M.V. Act. If one were to attempt to understand the liability under Sec.163A of the M.V. Act with the help of the principles of the law of torts, there is bound to be confusion and chaos. The legislature advisedly has prescribed this remedy for the malady of the inability of the system to provide adequate compensation to the victims of the motor accidents expeditiously by an inexpensive procedure. In these circumstances, attempt cannot be made to understand the concept of liability under Sec.163A of the M.V. Act groomed in the tradition of the law of torts. ## **M.A.C.A. No. 1444 of 2011** -: 6 :- 7. Another Division Bench of this Court had occasion to consider this question in **United India Insurance Co. Ltd., v. Vijayarajan** (2009 (3) KLT 269). 8. The learned counsel for the appellant then contends that a decision of the Supreme Court in **Ningamma v. United India Insurance Co. Ltd.,** (2009 ACJ 2020) has taken the view that a tort feasor/his legal heir cannot claim compensation under Sec.163A of the M.V. Act. We are afraid that we cannot accept that contention. **Ningamma** (supra), according to us, has not taken the view that negligence is relevant in a claim under Sec.163A of the M.V. Act or that such claim can be defeated by establishment of contributory negligence on the part of the deceased/victim/his legal heirs. We are unable to understand **Ningamma** (supra) to lay down such a proposition of law. 9. Facts in **Ningamma** (supra) were peculiar. There was only one vehicle involved in the accident. That vehicle was driven by a person with the permission of the owner. Such person who, as observed by the Supreme Court “had stepped into the shoes of the owner” claimed compensation against the owner/authorised insurer. It is in that circumstance that the Supreme Court took the view that a person who has stepped into ## **M.A.C.A. No. 1444 of 2011** -: 7 :- the shoes of the owner cannot claim compensation against the owner. We have gone through **Ningamma** (supra) in detail. We are unable to place our finger on any observation which can even remotely suggest that negligence is relevant in a claim under Sec.163A of the M.V. Act or that contributory negligence can be pressed into service effectively to deter a claim or reduce the liability under Sec.163A of the M.V. Act. **Ningamma** (supra) is authority only for the proposition that the owner cannot claim against himself. Consequently, it is held that a person who has stepped into the shoes of the owner cannot claim against the owner. This and this alone, according to us, the dictum in **Ningamma** (supra) and **Ningamma** (supra) does not in any way lead us to the conclusion that negligence is relevant in a claim under Sec.163A of the M.V. The language of Sec.163A of the M.V. Act stands against the contention laboriously advanced by the learned counsel for the appellant. We extract Sec.163A of the M.V. Act below: ## “ **163A. 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 ## **M.A.C.A. No. 1444 of 2011** -: 8 :- instrument having the force of law, the owner of the motor vehicle or the authorized 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. Explanation.- For the purposes of this sub-section, “permanent disability” shall have the same meaning and extent as in the Workman's Compensation Act, 1923 (8 of 1923). (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.” (emphasis supplied) ## **M.A.C.A. No. 1444 of 2011** -: 9 :- 10 **.** We are, in these circumstances, satisfied that there is no merit in the only contention raised by the learned counsel for the appellant against the impugned award. The challenge must therefore fail. We find no merit in the challenge raised against the impugned award at the instance of the appellant. 11. In the result, this appeal against the impugned award at the instance of the appellant is dismissed. Sd/- **R. BASANT (Judge) Sd/-** **K. SURENDRA MOHAN (Judge)** ## **Nan/** **//true copy// P.S. to Judge**