National Insurance Company Limited v. Augustine Binu and A.R. Jayasankar

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 12TH DAY OF JULY 2017/21ST ASHADHA, 1939 MACA.No. 474 of 2013 () -----------------------AGAINST THE AWARD IN OPMV 550/2007 of MACT, ALAPPUZHA DATED 03-11-2012 APPELLANT(S)/2ND RESPONDENT: --------------------------- NATIONAL INSURANCE COMPANY LIMITED, ALAPPUZHA, NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G.ROAD, KOCHI-35. BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENT(S)/PETITIONER & 1ST RESPONDENT : ------------------------------------------------------- ## 1. AUGUSTINE BINU S/O.XAVIER, THAIPARAMBIL VEEDU, EZHUPUNNA SOUTH P.O., CHERTHALA, PIN-688320. ## 2. A.R.JAYASANKAR S/O.RAMA KAIMAL, GIRIJAMANDIRAM, KUTHIYATHODU P.O., CHERTHALA, PIN-688322. R1 BY ADV. SRI.T.B.SARASAN R2 BY ADV. SRI.R.MURALEEKRISHNAN R2 BY ADV. SMT.T.M.RESHMY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. ----------------------------------------------M.A.C.A. No.474 of 2013 ----------------------------------------------Dated this the 12[th] day of July, 2017** ## **JUDGMENT** ## **Anil K. Narendran, J.** This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Alappuzha dated 3.11.2012 in O.P.(MV)No.550 of 2007, a claim petition filed by the first respondent/claimant under Section 163A of the Motor Vehicles Act, 1988 claiming compensation on account of the injuries sustained in a motor accident which occurred on 7.02.2007 while he was driving an autorickshaw bearing Reg.No.KL4/T-6653 owned by the second respondent and insured with the appellant. At the place of accident, the autorickshaw overturned on running over the gravel heaped on the side of the road, and plunged into a water logged area. As a result of the accident, the first respondent/claimant sustained serious injuries. Claiming a total compensation of Rs.6,12,900/- under different heads, claim petition was filed before the Tribunal. 2. Before the Tribunal, the second respondent owner remained ex parte. The appellant/insurer filed a written statement contending that they are not liable to pay any compensation as the accident occurred M.A.C.A.No.474/2013 2 solely due to the rash and negligent driving of the autorickshaw by the first respondent/claimant. The insurer has also disputed the occupation and income of the claimant and also the injuries sustained by him in the accident. 3. Before the Tribunal, Exts.A1 to A10 were marked on the side of the first respondent/claimant and PWs.1 to 3 were examined. Ext.X1 medical records were also marked. No oral or documentary evidence was adduced on the side of the appellant/insurer. 4. After considering the materials and evidence on record, the Tribunal arrived at a conclusion that the first respondent/claimant sustained injuries on account of a motor accident involving the autorikshaw in question and as such, he is entitled to make a claim under Section 163A of the Act. Under different heads, the Tribunal awarded a total compensation of Rs.7,03,100/- and held that, the second respondent owner and the appellant/insurer are jointly and severally liable to pay the amount of compensation to the first respondent/claimant, together with interest at the rate of 7.5% per annum from the date of the petition till realisation. 5. Feeling aggrieved by the award passed by the Tribunal, the appellant/insurer is before this Court in this appeal. M.A.C.A.No.474/2013 3 6. On 4.3.2013, while admitting this appeal on file, this Court grated an interim stay of execution of the award passed by the Tribunal in O.P.(MV)No.550/2007 and the said order is still in force. 7. We have heard the arguments of the learned Senior Counsel for the appellant/insurer and also the learned counsel for the first respondent/claimant. 8. The learned Senior Counsel for the appellant/insurer would contend that since the accident being a self-made one, the first respondent/claimant is not entitled for compensation under Section 163A of the Motor Vehicles Act. In support of the said contention, the learned Senior Counsel would rely on the decision of this Court in **New India Assurance Company Ltd. v. Vinod [2016 (3) KLT 817]** . The learned Senior Counsel would also point out that, the first respondent/claimant, being the driver of the autorickshaw in question, is entitled for compensation in terms of the provisions under the Workmen's Compensation Act, 1923 and that, since the injury sustained by him, namely, loss of vision to one eye, is a scheduled injury, he is not entitled for compensation, taking the percentage of disability as 100%. 9. Per contra, the learned counsel for the first respondent/ claimant would contend that, though the disability certified in Ext.X1 M.A.C.A.No.474/2013 4 disability certificate is only 40%, the Tribunal, after considering the evidence of PWs.2 and 3, the doctors who have issued the said certificate, rightly concluded that for the purpose of assessment of compensation the percentage of disability should be taken as 100%. The assessment so made by the Tribunal, after taking note of the evidence and materials on record is perfectly legal, which warrants no interference in this appeal. 10. We have considered the rival contentions. 11. First, we shall consider the question as to whether the first respondent/claimant is entitled to maintain a claim petition under Section 163A of the Motor Vehicles Act. 12. The fact that the accident in question is self-made one is not seriously in dispute. The accident occurred while the first respondent/ claimant was driving the autorickshaw in question, which overturned on running over the gravel heaped on the side of the road. 13. In **Vinod's case (supra),** after referring to the decisions of the Apex Court in **Deepal Girishbhai Soni v. United India Insurance Company Ltd [(2004) 5 SCC 385]** , **National Insurance Company Ltd. v. Sinitha [(2012) 2 SCC 356]** and **United India Insurance Co. v. Sunil Kumar [(2014) 1 SCC 680]** , a Division Bench of this M.A.C.A.No.474/2013 5 Court in which one among us (Anil K. Narendran, J) was a member, held that one who is the victim of his own action of rash and negligent driving of a motor vehicle cannot invoke Section 163A of the Motor Vehicles Act for making a claim for compensation. In the said decision, this Court held further that Section 163A of the Act was never intended to provide relief to those who suffered in a road accident only on account of their own rash and negligent Act, not because of any rash and negligent act of another person in using a motor vehicle. Paragraphs 23 and 24 of the judgment read thus; “ **23.** Therefore, by inserting Section 163A, vide the Motor Vehicles (Amendment) Act, 1994, a new device was evolved in order to grant quick and efficacious relief to the victims falling within the specified category. The legal heirs of the deceased or the victim in a motor accident, in terms of the provisions contained in Section 163A of the Act are assured a speedy and effective remedy which was not available to the claimants filing claim petitions under Section 166 of the Act. The intention of the legislature while inserting Section 163A was only to ensure that a claimant who opts for the special provisions as to payment of compensation on structured formula basis need not be required to plead and 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 any other person. Section 163A of the Act was never intended to provide relief to those who suffered in a road accident only on M.A.C.A.No.474/2013 6 account of their own rash and negligent act, not because of any rash and negligent act of another person in using a motor vehicle. **24.** There is nothing in the recommendations of the Review Committee to suggest that Section 163A was intended to be made available even in a case where the motor accident in question had caused death or injury to none except the person who was rash and negligent in using the motor vehicle. Therefore, conclusion is irresistible that, the Legislature never intended to provide for compensation under Section 163A of the Act to a person who is solely responsible for the motor accident. In that view of the matter, one who is the victim of his own action of rash and negligent driving of a motor vehicle cannot invoke Section 163A of the Act for making a claim for compensation.” (underline supplied) 14. In view of the law laid down in the decision referred to supra, conclusion is irresistible that the first respondent/claimant, who sustained injuries on account of his own rash and negligent driving of autorickshaw, cannot invoke Section 163A of the Motor Vehicles Act for making a claim for compensation, and we hold so. 15. However, as fairly submitted by the learned Senior Counsel for the appellant/insurer, the first respondent/claimant, who was driving the autorickshaw in question as employed by the second respondent owner is entitled for compensation under the provisions of the Workmen's Compensation Act. 16. In **New India Assurance Company Ltd. v. Lissy and** M.A.C.A.No.474/2013 7 **others [2016 (1) KHC 130]** , a Division Bench of this Court held that a person engaged in driving goods carriage comes within the purview of the statutory policy issued under Section 147 of the Motor Vehicles, 1988. In the case of 'passenger carrying vehicle', it extends further to 'conductor' and 'checking inspector' as well, as stipulated in Proviso (i) (b) of the very same provision. In other words, liability to be satisfied in the case of a person engaged in driving the goods carriage is to the extent as payable under the Workmen's Compensation Act. In view of the law laid down by the Division Bench of this Court in **Lissy's case (supra)** , the appellant/claimant who was driving the autorikshaw in question as employed by the second respondent/owner is entitled for payment of compensation to the extent payable under the provisions of the Workmen's Compensation Act, and we hold so. 17. The evidence and materials on record would show that at the time of the accident, the first respondent/claimant was aged 26 years. The disability certificate issued by the doctors, who were examined as PWs.2 and 3, would show that as a result of the injuries sustained in the accident, the first respondent/claimant is having loss of sight of left eye, resulting in 40% permanent disability. However, the Tribunal reckoned the percentage of disability as 100% on the ground that, on account of M.A.C.A.No.474/2013 8 such disability, he is unable to perform the work of a driver. 18. Section 4 of the Workmen's Compensation Act, 1923 deals with assessment of compensation. As per clause (b) of sub-section (1) of Section 4, subject to the provisions of the Act, the amount of compensation payable, where permanent total disablement results from the injury, is an amount equal to 60% of the monthly wages of the injured workman, multiplied by the relevant factor. Going by clause (c) of sub-section (1) of Section 4, where permanent partial disablement results from the injury, such assessment in the case of an injury specified in Part II of Schedule I of the Act will be such percentage of compensation which would have been payable in the case of permanent total disablement as is specified as being the percentage of loss of earning capacity caused by that injury. Part I of Schedule I of the Act shows the list of injuries deemed to result in permanent total disablement in respect of 100% loss of earning capacity. Serial No.4 thereunder is loss of sight to such an extent as to render the claimant unable to perform any work for which eye sight is essential. In respect of the such injury, the percentage of loss of earning capacity is 100%. In the instant case, the injury sustained by the first respondent/claimant is loss of one eye without complications, the other being normal, which M.A.C.A.No.474/2013 9 is serial No.25 in the list of injuries deemed to result in permanent partial disablement, as contained in Part II of Schedule I. Going by the said entry, the percentage of loss of earning capacity permissible in respect of such an injury is only 40%. 19. The learned counsel for the first respondent/claimant, after referring to the oral evidence of the claimant as PW1, would submit that the claimant is having loss of vision to certain extent on the right eye as well and as such, the percentage of loss of earning capacity should be reckoned as 100%, considering the nature of his employment as a driver of autorickshaw. We are unable to accept the said contention, mainly for the reason that, while assessing compensation under Section 4 of the Workmen's Compensation Act, the percentage of loss of earning capacity in respect of scheduled injury has to be assessed strictly in terms of the percentage specified therein. Since the percentage of loss of earning capacity in respect of the scheduled injury sustained by the first respondent/claimant, namely, loss of vision of one eye without complications, the other being normal, is only 40%, as certified by PWs.2 and 3 in the disability certificate, he is entitled for compensation taking the percentage of loss of earning capacity as 40%. 20. As we have already noticed, at the time of accident, the first M.A.C.A.No.474/2013 10 respondent/claimant was aged 26 years. Going by Schedule IV of the Workmen's Compensation Act, which deals with factors for working out lump sum equivalent of compensation amount, the relevant factor applicable to an employee, not more than 26 years, is 215.28. Going by the averments in the claim petition, the first respondent/claimant was earning a monthly income of Rs.3,300/- at the time of accident, which has already been accepted by the Tribunal. By taking 60% of the said amount, applying 215.28 as the relevant factor, and the percentage of permanent disability as 40%, the disability compensation payable to the first respondent/claimant is assessed as Rs.1,70,501.76. The Tribunal, under Section 163A of the Motor Vehicles Act, assessed the total compensation as Rs.7,03,100/-. Since we have found that the first respondent/claimant is not entitled to invoke Section 163A of the Act for making a claim for compensation, his entitlement is only to the extent payable under the provisions of the Workmen's Compensation Act. In the result, the appellant/claimant is entitled for a sum of Rs.1,70,501.76 as compensation. In view of the provisions contained in sub-section (3) of Section 4A of Workmen's Compensation the Act, he will be entitled for interest at the rate of 12% per annum from the date of accident till realisation. M.A.C.A.No.474/2013 11 21. The learned counsel for the first respondent/claimant would contend that, since the claimant had spend nearly Rs.15,000/- for medical treatment, he is legally entitled for payment of the said amount as well. In support of the said contention, the learned counsel would place reliance on sub-section (2A) of Section 4 of the Workmen's Compensation Act, which provides that the employee shall be reimbursed the actual medical expenditure incurred by him for treatment of injuries caused during the course of employment. However, the said provision was incorporated by clause (c) of Section 7 of the Workmen's Compensation (Amendment) Act, 2009 (Act 45 of 2009), with effect from 18.1.2010. The accident in the instant case occurred on 7.2.2007, much prior to the said amendment. In such circumstances, the first respondent/claimant is not entitled for reimbursement of any amount towards medical expenses, invoking sub-section (2A) of Section 4 of the Workmen's Compensation Act. 22. In the result, this appeal is disposed of modifying the award dated 3.11.2012 in O.P.(MV)No.550 of 2007 of the Motor Accidents Claims Tribunal, Alappuzha as one assessing compensation under the provisions of Section 4 of the Workmen's Compensation Act, limiting the total compensation payable to **Rs.1,70,501.76** , together with interest M.A.C.A.No.474/2013 12 at the rate of 12% per annum from the date of accident, i.e., from ## 7.2.2007 till realisation. 23. Since the insurance coverage of the vehicle in question is not in dispute, the appellant/insurer shall deposit the said amount before the Tribunal, within two months from the date of receipt of a certified copy of this judgment, less Rs.25,000/- already deposited in terms of the first proviso to sub-section (1) of Section 173 of the Motor Vehicles Act. No order as to costs. **Sd/-** **C.T. RAVIKUMAR (JUDGE)** **Sd/-** **ANIL K. NARENDRAN** **(JUDGE)** **spc/** M.A.C.A.No.474/2013 13 **C.T. RAVIKUMAR, J.** M.A.C.A.No.474/2013 14 **JUDGMENT September, 2010** M.A.C.A.No.474/2013 15