New India Assurance Co. Ltd. v. Anusulya Devi and others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Nagareesh
Judgment Date: 2020-06-19
Court Decision / Holding: The appeal filed by the insurer is dismissed; the High Court upholds the Tribunal’s award under Section 163A with interest at 7.5% and declines to apply Workmen’s Compensation Act-based limitations or higher interest. No interference with the Tribunal’s calculation or its quantum is warranted.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

New India Assurance Co. Ltd.

Respondents

Anusulya Devi
P. Jayamalini
S. Murugeswari
G. Balakumar
T. Raviprasad
B. Umarani
Harish Kumar
Varsha

Legal Representation & Advocates

Counsels for Petitioners

• Sri Lal K. Joseph
• Sri A. A. Ziyad Rahman

Counsels for Respondents

• Sri S. Sachithananda Pai
• Sri P. Chandy Joseph
• Sri C. K. Vidyasagar

Case Synopsis & Summary

This is a Motor Accidents Claims Appeal (MACA) from the Kerala High Court (Ernakulam) challenging the Award in OP(MV) No.79/2008 of the Motor Accidents Claims Tribunal, Thodupuzha. The insurer (New India Assurance) appeals against an award granting ₹2,97,500 as compensation to the claimants (respondents 1–4 and additional respondents 6–8) under Section 163A of the Motor Vehicles Act, 1988, with interest at 7.5% from 15.02.2008. The accident occurred on 27.12.2007 when a road roller driven by Guruswami overturned due to a brake failure, causing fatal injuries. The insurer contends that the deceased was negligent, unlicensed to drive a road roller, and that policy conditions were violated; it argues quantum should be aligned with Workmen’s Compensation Act (WCA) limits, potentially with higher interest if WCA applies. The Tribunal concluded no fault by the deceased, awarding compensation to dependents, but the insurer challenged the findings on fault and quantum. The High Court, while acknowledging arguments, ultimately confirms that following the Supreme Court’s decision in Sunil Kumar, the fault defence under Section 163A cannot be invoked. The court holds the evidence supports the Tribunal’s award and refuses to interfere, maintaining the award and the 7.5% interest, without applying WCA-based adjustments.

Provisions of Law Cited

Section 163A of the Motor Vehicles Act, 1988Workmen's Compensation Act, 1923 (as referenced)

Legal Doctrines & Maxims

Fault liability principle under Section 163A
Workmen's Compensation Act principles (quantum/interest considerations)

Submissions & Arguments

Contentions of Appellants / Petitioners

The insurer contends that the Tribunal erred in holding no negligence on the part of the deceased; relying on Exts. A1 (FIR) and B2 (Final Report) to suggest rash and negligent driving. It invokes the fault liability principle under Section 163A, citing National Insurance Co. Ltd. v. Sinitha. It further argues the deceased’s presumed status as an employee of the offending vehicle would limit liability or quantum under the Workmen’s Compensation Act, suggesting a lower amount and potentially 12% interest if WCA applies.

Contentions of Respondents

The claimants argue that Section 163A removes the fault-based defence after Sunil Kumar and that compensation should be granted under 163A. They rely on the evidence (including the postmortem, PW1’s testimony regarding age, and dependency) to justify the Tribunal’s award. They oppose invoking Workmen’s Compensation Act provisions to limit liability and dispute any reduction in quantum.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
National Insurance Co. Ltd. v. Sinitha	2011 (4) KLT 821 (SC)	Overruled	The Apex Court later overruled Sinitha in Sunil Kumar, ruling that a fault-based defence cannot be used in 163A claims.
United India Insurance Co. Ltd. v. Sunil Kumar	2017 (4) KLT 1093 (SC)	Positive	Sunil Kumar held that the insurer cannot plead negligence under 163A; it is a binding authority supporting the current decision.

Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 19TH DAY OF JUNE 2020 / 29TH JYAISHTA, 1942** ## **MACA.No.2812 OF 2014(C)** **AGAINST THE AWARD IN OP(MV)No.79/2008 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THODUPUZHA** ## **APPELLANT/RES PONDENT NO:2:** **THE NEW INDIA ASSURANCE CO. LTD., KATTAPPANA BRANCH, KATTAPPANA P.O., REPRESENTED BY ITS MANAGER** **BY ADVS. SRI.LAL K.JOSEPH SRI.A.A.ZIYAD RAHMAN** ## **RESPONDENTS/PETITIONERS AND RESPONDENTS No:1:** |**1**|**ANUSULYA DEVI,**| |---|---| ||**W/O.GURUSWAMY,**| ||**270 MAIN ROAD,**| ||**GOPALAPURAM,**| ||**THENI DISTRICT,**| ||**TAMIL NADU - 655 011.**| |**2**|**P.JAYAMALINI,**| ||**D/O.GURUSWAMY,**| ||**270 MAIN ROAD,**| ||**GOPALAPURAM,**| ||**THENI DISTRICT,**| ||**TAMIL NADU - 655 011.**| |**3**|**S.MURUGESWARI,**| ||**D/O.GURUSWAMY,**| ||**270 MAIN ROAD,**| ||**GOPALAPURAM,**| ||**THENI DISTRICT,**| ||**TAMIL NADU - 655 011.**| |**4**|**G.BALAKUMAR,**| ||**S/O.GURUSWAMY,**| ||**270 MAIN ROAD,**| ||**GOPALAPURAM,**| ||**THENI DISTRICT,**| ||**TAMIL NADU - 655 011.**| **MACA.No.2812 OF 2014(C)** ## **:2:** ||**5**|**T.R.RAVIPRASAD,**| |---|---|---| |||**PANAYAKUZHIYIL HOUSE,**| |||**MANIVADANMEDU,**| |||**IDUKKI DISTRICT 672710.**| |ADDL.|**6**|**B.UMARANI,**| |||**AGED 30 YEARS,**| |||**W/O.G.BALAKUMAR,**| |||**270 MAIN ROAD,**| |||**GOPALAPURAM,**| |||**THENI DISTRICT,**| |||**TAMILNADU.**| |ADDL.|**7**|**HARISH KUMAR,**| |||**AGED 12 YEARS,**| |||**S/O G.BALAKUMAR,**| |||**270 MAIN ROAD,**| |||**GOPALAPURAM,**| |||**THENI DISTRICT,**| |||**TAMILNADU,**| |||**REPRESENTED BY MOTHER B.UMARANI.**| ||**8**|**VARSHA,**| |||**AGED 10 YEARS,**| |||**D/O G.BALAKUMAR,**| |||**270 MAIN ROAD,**| |||**GOPALAPURAM,**| |||**THENI DISTRICT,**| |||**TAMILNADU,**| |||**REPRESENTED BY MOTHER B UMARANI.**| |||**BY ADV. SRI.S.SACHITHANANDA PAI**| |||**BY ADV. SRI.P.CHANDY JOSEPH**| |||**BY ADV. SRI.C.K.VIDYASAGAR**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2812 OF 2014(C)** **:3:** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ _**Dated this the 19[th] day of June, 2020**_ The 2[nd] respondent-insurer in OP(MV) No.79/2008 of the Motor Accidents Claims Tribunal, Thodupuzha is in appeal aggrieved by Award dated 10.05.2013. 2. OP(MV) No.79/2008 was originally filed by respondents 1 to 4 in this appeal, invoking Section 163A of the Motor Vehicles Act, 1988. During the pendency of the appeal, the 4[th] respondent passed away and his legal heirs were impleaded as additional respondents 6 to 8. 3. Before the Tribunal, the claimants urged that K.Guruswami, husband of the 1[st] respondent herein, was driving a road roller on 27.12.2007. The road roller overturned due to break failure. In the consequential **MACA.No.2812 OF 2014(C)** **==> picture [23 x 9] intentionally omitted <==** accident, Guruswami sustained serious injuries and was taken to St.John's Hospital, Kattappana. Guruswami succumbed to the fatal injuries on the way to hospital. The accident occurred solely due to the break failure and not due to any fault on the part of the deceased, urged the claimants. The 1[st] respondent herein and other claimants sought ₹5,04,500/- as compensation. 4. The owner of the road roller, who is the 5[th] respondent herein, remained _ex parte_ . The appellant filed written statement urging that deceased Guruswami had no licence to drive a road roller and accident is due to the lack of knowledge and experience of the deceased. Since the deceased drove the vehicle without licence, there is violation of policy conditions. The appellant is not liable to indemnify the insurer, contended the appellant. 5. Respondents 1 to 4 and additional respondents 6 to 8 produced Exts.A1 to A5. The appellant produced Exts.B1 and B2. The 1[st] respondent examined herself as **MACA.No.2812 OF 2014(C)** **:5:** PW1. 6. The Tribunal found that the appellant-insurer failed to prove any fault on the part of the deceased which caused the accident. The Tribunal awarded ₹2,97,500/- as compensation under the following heads:- |**Sl** **No.**|**Head of Claim**|**Amount** **Claimed** **(in Rupees)**|**Amount** **awarded** **(in Rupees)**|**Basis-vital details** **in a nut shell**| |---|---|---|---|---| |1.|Dependency|4,80,000/-|2,88,000/-|3,000/- x 2/3 x 12 x 12| |2.|Loss of consortium|2,500/-|5,000/-|| |3.|Estate|2,500/-|2,500/-|| |4.|Funeral|2,000/-|2,000/-|| |5.|Total|Limited to Rs.5,04,500/-|**2,97,500/-**|Rs.2,97,500/- along with interest at the rate of 7.5% p.a from 15.02.08 till realisation.| Interest at the rate of 7.5% per annum from 15.02.2008 was also ordered. The appellant was directed to make the payment. Aggrieved by the Award, the insurer has preferred this appeal. 7. The prime contention of the Standing Counsel for **MACA.No.2812 OF 2014(C)** **==> picture [23 x 9] intentionally omitted <==** the appellant is that the Tribunal ought to have found that the accident had occurred due to the negligence on the part of the deceased, who was not competent enough to drive the road roller. Ext.A1 FIR showed that the road roller was driven by the deceased in a rash and negligent manner. Ext.B2 Final Report filed by the Sub Inspector of Police is also against the deceased. It is stated that the deceased had driven the vehicle in a rash and negligent manner. 8. The learned Standing Counsel relied on the judgment in _**National Insurance Co. Ltd. v. Sinitha** [2011 (4) KLT 821 (SC)]_ , in which it was held that Section 163A is found on the “fault” liability principle. The Hon'ble Apex Court in the said judgment held that it was open to the concerned parties (owner or insurer) to defeat a claim raised under Section 163A by pleading and establishing anyone of the three “fault”, namely, “wrongful act”, “neglect” or “default”. As the FIR and Final Report went against the deceased as regards his negligence, the claimants are not entitled to any **MACA.No.2812 OF 2014(C)** **==> picture [23 x 9] intentionally omitted <==** compensation under Section 163A, urged the Standing Counsel. 9. The learned Standing Counsel further argued that the Tribunal has passed the Award without noticing that the deceased was an employee on the offending vehicle and compensation ought to have been limited to that provided under the Workmen's Compensation Act. Going by the evidence on record, including the postmortem report, the deceased was aged 54 years and the factor to be taken is 139.13 under the Workmen's Compensation Act. Had it been taken so, the claimants would have been entitled only to an amount of ₹2,08,695/-. The learned Standing Counsel further contended that even if the age of the deceased is taken as 50 years, the relevant factor under the Workmen's Compensation Act will be 153.9 and the claimants would have been entitled to only an amount of ₹2,29,635/-. The compensation of ₹2,97,500/- awarded by the Tribunal is therefore illegal and is liable to be reduced. **MACA.No.2812 OF 2014(C)** **==> picture [23 x 9] intentionally omitted <==** 10. Heard the learned Standing Counsel for the appellant-insurer and learned counsel for respondents 1 to 3 and additional respondents 6 to 8. 11. When the case was taken up for hearing, counsel on either side admitted that the appeal was primarily filed based on the law laid down by the Hon'ble Apex Court in _**National Insurance Co. Ltd. v. Sinitha** [2011 (4) KLT 821 (SC)]_ . The Hon'ble Apex Court, however, subsequently overruled the said judgment in _**United India Insurance Co. Ltd. v. Sunil Kumar** [2017 (4) KLT 1093 (SC)]_ and held that the insurer cannot take the defence of negligence in a claim filed under Section 163A of the Motor Vehicles Act, 1988. The learned Standing Counsel for the appellant however argued that even then the question of quantum of compensation amount would still remain to be considered in this appeal, since the compensation ought to have been limited to the extent provided under the Workmen's Compensation Act. **MACA.No.2812 OF 2014(C)** **==> picture [23 x 9] intentionally omitted <==** 12. I have considered the said arguments of the Standing Counsel for the appellant. In the claim petition under Section 163A, the Tribunal awarded ₹2,97,500/- as compensation with 7.5% interest. Though the Standing Counsel for the appellant argued that based on Ext.A3 postmortem certificate, the age of the deceased should be taken as 54 years, in which case the amount of compensation due to the claimants going by the Workmen's Compensation Act, will be only ₹2,08,695/-. A perusal of the postmortem certificate would show that the age of the deceased is described therein as “about 54 years”. At the same time, it is to be noted that the 1[st] respondent, who is the wife of the deceased, as PW1, has gave evidence to the effect that the deceased was only 50 years old at the time of accident. Therefore, the age of the deceased has to be taken as 50 years. If the age of the deceased is 50 years, the amount of compensation due to the claimants under the Workmen's Compensation Act, according to the Standing Counsel for the appellant, would be ₹2,29,635/-. **MACA.No.2812 OF 2014(C)** **==> picture [30 x 9] intentionally omitted <==** 13. If the above amount is accepted as due compensation, it is evident that an amount of ₹67,865/(₹2,97,500/- minus ₹2,29,635/-) would be excess award of compensation. But, it has to be noted that if the compensation is to be granted under the Workmen's Compensation Act, the interest payable by the employer, and consequently by the insurer, would be 12% per annum. In the Award, the Tribunal has allowed only 7.5% interest. 14. If this Court interferes with the Award at this stage, accepting the proposition that compensation is to be granted as per the Workmen's Compensation Act, then the compensation amount so calculated with 12% interest would be almost equal to the compensation already granted by the Tribunal. In the circumstances, no purpose will be served in altering the method of calculation of compensation, in this appeal. In the circumstances, it is held that no interference is warranted in the Award of the Tribunal **MACA.No.2812 OF 2014(C)** **==> picture [30 x 9] intentionally omitted <==** impugned in this MACA. The appeal filed by the appellantinsurer fails and it is accordingly, dismissed. Sd/- **N. NAGARESH, JUDGE** aks/17/06/2020