New India Assurance Co. Ltd. v. Bindu and others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2021-07-14
Court Decision / Holding: Appeal allowed in part. The medical expenses of Rs. 15,000 awarded by the Tribunal are set aside for lack of supporting bills under Clause 3(iv) of the Second Schedule. The insurer is directed to pay the balance amount of Rs. 3,69,500 with interest at 7% per annum from the date of petition till deposit. The 3rd respondent shall deposit the aforesaid amount before the Tribunal within two months from receipt of a certified copy of this judgment. Any deposited amounts prior to this judgment shall be credited, and the Tribunal shall disburse the balance to respondents 1–5 in accordance with law.
Final Disposition: Appeal allowed in part.

Parties to the Case

Appellants / Petitioners

New India Assurance Co. Ltd.

Respondents

Bindu
Aneesh
Athira
Ama
Thressiamma
Binu
Shiji N.M.

Legal Representation & Advocates

Counsels for Petitioners

• Rajan P. Kaliyath

Counsels for Respondents

• S. Sachithananda Pai

Case Synopsis & Summary

This is a Motor Accidents Claims Appeal (MACA No. 2758 of 2015) from the Kerala High Court arising out of OP(MV) No.373 of 2009 before the Motor Accidents Claims Tribunal, Thodupuzha. On 12 May 2009, a jeep (Reg. No. KL-6A/2190) driven by Ashokan collided with an auto-rickshaw (Reg. No. KL-37/3885) driven by the 1st respondent, resulting in the death of Ashokan and consequent dependency claims by the petitioners (Bindu, Aneesh, Athira, Ama, Thressiamma, Binu, and Shiji N.M.). The 3rd respondent insurer contested liability, while conceding the auto’s valid policy. The Tribunal awarded Rs.3,84,500 with 7% interest under Section 163A of the Motor Vehicles Act, 1988, in favor of the claimants. The insurer challenged the award, arguing possible negligence by the deceased and disputing certain heads of compensation, including medical expenses. The apex issue was the applicability of the Sunilkumar principle, which holds that in Section 163A claims the insurer cannot plead the negligence of the insured and must pay per the Second Schedule. The High Court upheld the Sunilkumar principle, allowed the insurer to challenge the medical expenses head, and ultimately partially allowed the appeal: it set aside Rs.15,000 as medical expenses (not supported by bills) and directed payment of Rs.3,69,500 with 7% interest, with deposits to be made within two months and credit given for any prior deposits. The decision clarifies the proper application of Section 163A and the Second Schedule in such claims.

Provisions of Law Cited

Motor Vehicles Act, 1988, Section 163AMotor Vehicles Act, 1988, Second Schedule (Clause 3(iv))

Submissions & Arguments

Contentions of Appellants / Petitioners

The insurer contends that under Section 163A the claim must be decided strictly per the Second Schedule, and that the insurer cannot rely on the negligence of the other party. It questions the medical expenses head on the ground that bills/vouchers are required under Clause 3(iv) of the Second Schedule, and submits that the award should reflect the Second Schedule without extra sums. It relies on the Sunilkumar ruling to insist on a structured computation and to limit or disallow unsupported medical costs.

Contentions of Respondents

The claimants argue that the Tribunal’s reasons for awarding medical expenses (Rs. 15,000) are cogent and justified given the deceased’s hospitalisation from 12 May to 24 May 2009. They rely on the Second Schedule but contend the Tribunal’s overall computation under Section 163A should stand, subject to verification of vouchers for medical expenses.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
United India Insurance Company Ltd. v. Sunilkumar	2017 4 KLT 1093 SC	Positive	Cited to establish that in Section 163A claims the insurer cannot plead negligence and compensation must be awarded per the Second Schedule.

Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 14[TH] DAY OF JULY 2021 / 23RD ASHADHA, 1943** **MACA NO. 2758 OF 2015** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 373/2009 OF THE MOTOR ACCIDENTS** **CLAIMS TRIBUNAL, THODUPUZHA** ## **APPELLANT/3RD RESPONDENT:** NEW INDIA ASSURANCE CO.LTD., KATTAPPANA BRANCH, KATTAPPANA POST, IDUKKI DISTRICT, REPRESENTED BY THE MANAGER, REGIONAL OFFICE, KOCHI. BY ADV SRI.RAJAN P.KALIYATH ## **RESPONDENTS/CLAIMANTS & R1 AND R2:** 1 BINDU, W/O.ASHOKAN, AGED 35 YEARS, W/O.ASHOKAN, PALACKAPARAMBIL HOUSE, UMMAKADA, CHARALMEDU KARA, KALKOONTHAL VILLAGE, UDUMBANCHOLA TALUK - 685554. 2 ANEESH, S/O.ASHOKAN, -DO3 ATHIRA, D/O.ASHOKAN, -DO4 AMA, S/O.ASHOKAN, MINOR, AGED 15 YEARS, REPRESENTED BY THE MOTHER BINDU, W/O.ASHOKAN, FIRST RESPONDENT, -DO- 5 THRESSIAMMA, W/O.KUNJUKUTTY, AGED 66 YEARS, -DO6 BINU, S/O.CHANDRASEKHARAN, BLOCK NO.946, THIRD CAMP PO, UDHAYAPURAM BHAGAM, KARUNAPURAM VILLAGE, IDUKKI DISTRICT. 7 SHIJI N.M., BLOCK NO.646, BALAGRAM POST, THIRD CAMP, NEDUMKANDOM, IDUKKI DISTRICT. **MACA NO. 2758 OF 2015 2** BY ADV SRI.S.SACHITHANANDA PAI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 2758 OF 2015 3** ## **JUDGMENT** The appellant - Insurance Company - was the 3[rd] respondent in OP(MV) No.373 of 2009 on the file of the Motor Accidents Claims Tribunal, Thodupuzha. The respondents 1 to 5 in the appeal were the claimants and respondents 6 and 7 in the appeal were the respondents 1 and 2 before the Tribunal. The parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioners had filed the claim petition u/S.163 A of the Motor Vehicles Act 1988 claiming compensation from the respondents. 3. The brief facts, relevant for the determination of the appeal, are: on 12.5.2009, while Ashokan (deceased) – the husband of the 1[st] petitioner and the father of petitioners 2 to 4 and the son of the 5[th] petitioner – was driving a jeep bearing Reg.No.KL- **MACA NO. 2758 OF 2015 4** 6A/2190 from Nedumkandam to Cumbum when he reached the place named third Camp, an Auto rickshaw bearing Reg No.Kl-37/3885 driven by the 1[st] respondent hit the jeep. The 2[nd] respondent was the owner of the auto rickshaw and the 3[rd] respondent was the insurer. The accident was caused due to the negligence of the 1[st] respondent. Hence, the petitioner claimed a compensation of Rs.5,64,500/- from the respondents. 4. The respondents 1 and 2 filed a written statement admitting the accident but they contended that the accident took place due to the negligence of the deceased. 5. The 3[rd] respondent filed a written statement admitting that the auto rickshaw had a valid insurance policy. It was contended that the claim petition was filed in collusion between the petitioners and the respondents and the accident occurred on account of ## **MACA NO. 2758 OF 2015 5** the negligence of the deceased. Hence, the claim petition may be dismissed. 6. The 1[st] petitioner was examined as PW1 and Exts.A1 to A4 were marked on her side in evidence. Respondents produced and marked Ext.B1 to B3. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, by permitting the petitioners to realise an amount of Rs.3,84,500/- from the 3[rd] respondent with interest @ 7 % per annum from the date of petition till the date of realization. 8. Aggrieved by the impugned award, the 3[rd] respondent/Insurance Company is in appeal. 9. Heard, the learned counsel appearing for the appellant/3[rd] respondent and the learned counsel appearing for the respondents 1 to 5/petitioners. 10. The sole question that emerges for **MACA NO. 2758 OF 2015 6** consideration in this appeal is whether the compensation awarded by the Tribunal is correct or not. 11. Undisputedly, the claim petition filed was Section 163A of the Motor Vehicles Act, 1988. The Hon'ble Supreme Court in _**United India Insurance Company Ltd., v. Sunilkumar (2017 4 KLT 1093 SC)**_ has held that in a claim filed under Section 163A of the Act, the insurer cannot raise the defence of the negligence and that the compensation has to be awarded as per the structured formula under the Second Schedule of the Act. 12. In light of the law laid down in _**Sunilkumar**_ , it goes without saying that the 3[rd] respondent is bound to pay the compensation as per the Second Schedule of the Act. 13. The learned counsel appearing for the appellant contended that the amount of compensation **MACA NO. 2758 OF 2015 7** awarded under the head medical expenses is unsustainable in law because the petitioners have not produced any bills/vouchers to substantiate their claim as provided under Clause 3 (iv) of the Second Schedule of the Act. 14. The learned counsel appearing for the respondents 1 to 5 contended that the Tribunal has stated cogent reasons for awarding an amount of Rs.15,000/- because the deceased was admitted in the hospital from 12.5.2009 to 24.5.2009. Hence, there is no error in the award. 15. It is statutory as per the above provision, that in order to seek for reimbursement of the medical expenses/actual expenses incurred before the death, the same has to be supported by bills/vouchers, but should not exceed Rs.15,000/-. 16. In the instant case, the respondents 1 to 5 have **MACA NO. 2758 OF 2015 8** not produced any document as per the mandate under Clause 3(iv) of the Second Schedule of the Act. Hence, confirming the compensation awarded under serial Nos.1 to 4 in the award, I set aside the amount of Rs.15,000/- awarded by the Tribunal towards medical expenses. In the result, the appeal is allowed in part, by setting aside the medical expenses of Rs.15,000/awarded by the Tribunal, but directing the appellant to pay the balance amount of Rs.3,69,500/- with interest @ 7% per annum from the date of petition till the date of deposit. The 3[rd] respondent shall deposit the aforesaid amount before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The learned counsel appearing for the appellant submits that pursuant to the directions of this Court, the appellant has already deposited 50% of the **MACA NO. 2758 OF 2015 9** compensation amount before the Tribunal and the respondents 1 to 5 were permitted to withdraw the said amount. Needless to mention that if any amount was deposited, the same shall be given credit to and only, the balance amount as ordered in this judgment need be deposited. The Tribunal shall disburse the balance amount deposited pursuant to this judgment to the respondents 1 to 5 in accordance with law. Sd/- **C.S.DIAS, JUDGE** pm