High Court of KeralaDivision BenchAppeal allowed; impugned order set aside; insur...

P. Binu v. S. Santhosh & The Oriental Insurance Co. Ltd.

Case / Petition Number:MACA No. 856 of 2005

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • R. Basant
  • N.K. Balakrishnan
Judgment Date
2011-07-06
Court Decision / Holding
This appeal is allowed; the impugned award is set aside. The insurer (second respondent) is directed to pay Rs.25,000 to the claimant under Section 140 of the Motor Vehicles Act, with interest at 8% per annum from the date of filing the claim to the date of payment, plus costs (including Advocates’ fee of Rs. 1,000). Payment must be made within 60 days, with the cheque produced before the Tribunal and handed to the claimant in due course.
Final Disposition
Appeal allowed; impugned order set aside; insurer ordered to pay Rs.25,000 under Section 140 with 8% interest and costs within 60 days; cheque to be handed to claimant.

Parties to the Case

Appellants / Petitioners

  • P. Binu, S/o. Prabha Rajan, Puthenveettil, Cheriyazheekkal P.O., Karunagappally, Kollam

Respondents

  • S. Santhosh
  • The Oriental Insurance Co. Ltd., rep. by its Divisional Manager, Divisional Office, Thiruvananthapuram

Legal Representation & Advocates

Counsels for Petitioners

  • • Bechu Kurian Thomas
  • • Roshen D. Alexander

Counsels for Respondents

  • • VPK Panicker

Case Synopsis & Summary

This is a Motor Accident Claims Appeal (MACA No. 856 of 2005) arising from an award of the Motor Accidents Claims Tribunal, Attingal. The claimant-appellant challenged an award dismissing his claims under Sections 163A and 140 of the Motor Vehicles Act. He pressed that relief under Section 140 would suffice and sought to avoid Section 163A because his income allegedly crosses the statutory threshold; he relied on the Supreme Court dictum in Deepal Girishbhai Soni v. United India Insurance Co. Ltd. The Tribunal had held that the appellant did not prove permanent disability under the Workmen’s Compensation Act, and thus dismissed. The High Court, however, clarified the interplay of Sections 140, 163A and 142, and Chapter 10. It observed that an independent claim under Section 140 is maintainable and that Section 165 contemplates claims under both Sections 140 and 163A. The court considered Exts. A7–A8, which show disability, and concluded that the disability falls within Section 142’s definition of permanent disablement for Chapter 10. Following Deepal Girishbhai Soni, the court held that the appellant’s income precludes Section 163A and that compensation under Section 140 is warranted. The appeal is allowed and a Rs.25,000 award plus interest and costs is directed from the insurer within 60 days.

Provisions of Law Cited

Section 163A of the Motor Vehicles ActSection 140 of the Motor Vehicles ActSection 144 of the Motor Vehicles ActSection 165 of the Motor Vehicles ActSection 142 of the Motor Vehicles ActChapter 10, Motor Vehicles ActSection 166 of the Motor Vehicles ActWorkmen's Compensation Act

Legal Doctrines & Maxims

  • Deepal Girishbhai Soni v. United India Insurance Co. Ltd. (2004 (2) KLT 395 (SC))

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant’s counsel submitted that the claimant does not press a case under Section 163A and is content to have the claim considered under Section 140. The claim of income around Rs.4,500 per month would lead to an annual income exceeding Rs.40,000, thus rendering 163A inapplicable per the Supreme Court ruling in Deepal Girishbhai Soni. The appellant argued that Section 140 provides an independent remedy and that permanent disablement, as defined in Section 142, is established by Exts. A7–A8, which show disability and impairment of the right knee/hip, warranting compensation under Section 140. The insurer’s liability is under the policy for Section 140 and 166; the Tribunal’s focus on 163A should not prevail. Accordingly, Section 140 would apply, and the compensation (Rs.25,000 with 8% interest and costs) should be paid to the claimant.

Contentions of Respondents

The respondents argued that the Tribunal correctly dismissed the claim under Section 163A and that the appellant’s income status falls under the threshold for a 163A claim. They contended that dependency on Exts. A7–A8 regarding permanent disability must be evaluated under the Workmen’s Compensation framework and that 163A is not rendered inoperable only by an income argument. They maintained that Section 140's applicability requires a strict interpretation in line with the statutory framework and that the insurer’s liability is governed by the policy covering 166/140 claims; the tribunal’s decision should be affirmed if the 163A claim remains viable or if permanent disability is not proven to meet the 142 standard.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Deepal Girishbhai Soni v. United India Insurance Co. Ltd.2004 (2) KLT 395 (SC)PositiveCourt followed the Supreme Court dictum that income exceeding the threshold affects eligibility for Section 163A; therefore, Section 140 becomes applicable for compensation.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE R.BASANT &** **THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN** **WEDNESDAY, THE 6TH JULY 2011 / 15TH ASHADHA 1933** **MACA.No. 856 of 2005()** **---------------------------------OP(MV).1832/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL** **....................** ## **APPELLANT(S): APPELLANT/PETITIONER.** **--------------------------------------------------------------** **P.BINU, S/O.PRABHA RAJAN, PUTHENVEETTIL, CHERIYAZHEEKKAL P.O. KARUNAGAPPALLY, KOLLAM.** **BY ADV. SRI.BECHU KURIAN THOMAS SRI.ROSHEN.D.ALEXANDER** **RESPONDENT(S): RESPONDENTS.** **---------------------------------------------------** **1. S.SANTHOSH, S/O.SHANMUGHAM, MUNDAKKATTIL HOUSE, CHERIYAZHEEKKAL, ALAPPADU, KARUNAGAPPALLY, KOLLAM.** **2. THE ORIENTAL INSURANCE CO.LTD., REP. BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, THIRUVANANTHAPURAM.** **R2 BY ADV. SRI.VPK.PANICKER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **R.BASANT & N.K.BALAKRISHNAN, JJ. ----------------------------------------M.A.C.A No.856 OF 2005 ---------------------------------------Dated this the 6[th] day of July, 2011** ## **JUDGMENT** ## **BASANT,J.** The claimant is the appellant. The claim lodged by him described to be one under Sections 163 A and 140 of the Motor Vehicles Act dismissed by the Tribunal by the impugned award holding that the appellant/claimant has not succeeded in proving that he has suffered any permanent disability as defined under the Workmen's Compensation Act. 2. The learned counsel for the appellant submits that he does not now want to stake any claim under Section 163A of the Motor Vehicles Act. He shall be satisfied if his claim is considered under Section 140 of the Motor Vehicles Act. 3. The learned counsel for the appellant submits that he is taking this stand in view of the indisputable circumstance that he had claimed that he was earning a monthly income of Rs.4,500/-. If that be so, his total annual income would exceed at Rs.40,000/-. Consequently, following the dictum in **Deepal Girishbhai Soni v. United India Insurance Co.Ltd. (2004 (2) KLT 395 (SC))** 2 **M.A.C.A No.856 OF 2005** he cannot approach the Tribunal with a claim under Section 163 A of the Motor Vehicles Act. Accepting that fact, the learned counsel for the appellant submits that his claim may be considered only under section 140 of the Motor Vehicles Act. 4. There cannot possibly be a dispute that an independent claim under Section 140 of the Motor Vehicles Act would be maintainable. The stipulations in Chapter 10, particularly Section 144 of the Motor Vehicles Act, clearly show that the provisions of Chapter 10 shall effect notwithstanding anything contained any other provisions or any other law for the time being in force. Section 165 of the motor Vehicles Act further shows that a claim under Section 140 and under Section 163 A must also be reckoned as claims or compensation falling within the purview of 165 of the Motor Vehicles Act. We reckon the claim as one only under Section 140 of the Motor Vehicles Act. 5. According to the learned counsel for the appellant/claimant, claim is only under Section 140 of the Motor Vehicles Act. According to him, he had suffered permanent disablement as defined under Section 142 of Motor Vehicles Act. Section 142 of the Motor Vehicles Act defines the expression 3 **M.A.C.A No.856 OF 2005** “permanent disablement” for the purpose of Chapter 10 of the Motor Vehicles Act. It reads as follows: “ **142. Permanent disablement.** - For the purposes of this Chapter, permanent disablement of a person shall be deemed to have resulted from an accident of the nature referred to in sub-section (1) of section 140 if such person has suffered by reason of the accident, any injury or injuries involving:- (a) permanent privation of the sight of either eye or the hearing of either ear, or privation of any member or joint; or (b) destruction or permanent impairing of the powers of any member or joint; or (c) Permanent disfiguration of the head or face.” 6. According to the petitioner, he had suffered permanent disablement. He relies on Exts.A7 and A8 certificates issued by the Medical Officers in support of this contention. Ext.A8 disability certificate purportedly issued for the purpose of a workmen's compensation case states that the appellant suffered permanent partial disability to the tune of 10%. 7. It is stated therein that the appellant had suffered fracture head of femur with posterior dislocation right and fracture upper end of Tibia right. He was treated with CMR and lower Femoral traction and hip spica was given on 27.2.1997. It is 4 **M.A.C.A No.856 OF 2005** further reported that he has limitation of terminal 30 degree flexion of right knee with secondary osteoarthrosis of right knee. He has avascular neurosis of Femoral head right with post traumatic arthritis of right hip. The extent of permanent partial disability assessed is 10%. As per Section 142 (b) of the Motor Vehicles Act permanent disablement includes destruction or permanent impairing of the powers of any member or joint. Ext.A8, the relevant assertions in which we extracted above, plainly reveals that appellant suffered permanent impairing of powers of member/joint. He has hence suffered permanent disability under section 142 of Motor Vehicles Act. 8. Inasmuch as the appellant concedes that the claim need not be considered under Section 163A of the Motor Vehicles Act, it is not necessary for us to delve deeper into the nuances of Section 163A of the Motor Vehicles Act, but we take note that the Explanation to 163A stipulates that for Section 163A “permanent disability shall have the same meaning and extent as in the Workmen's Compensation Act.” Two interesting aspects arise there from. The body of Section 163A(1) does not at all use the expression “permanent disability”. Secondly the Workmen's 5 **M.A.C.A No.856 OF 2005** Compensation Act significantly does not define permanent disability even though we have definition of the expressions total disablement and partial disablement in that Act. At any rate, we do not think it necessary to go into that controversy in any greater detail now. Suffice if to say that we are not considering the question whether the certificate issued answers the definition of permanent disablement under Section 163 A of Motor Vehicles Act. 9. The second respondent insurer has entered appearance. Contention of the counsel for the appellant that the liability in respect of the driver of a vehicle is covered by the policy of insurance and that the owners liability to satisfy the claim under Section 140 of the Motor Vehicles Act has to be taken over by the Insurance company under the policy in question is accepted . Therefore, it is not necessary to delve deeper into that aspect of the matter also. Admittedly, the liability under Section 140 of the Motor Vehicles Act (and for that purpose liability under Section 166 of the Motor Vehicles Act) in respect of the driver is admittedly covered under the policy of insurance. Extra premium has admittedly been collected to cover such liability of the driver 6 **M.A.C.A No.856 OF 2005** of the vehicle. 10. It follows, in these circumstances, that the appellant is entitled for compensation under Section 140 of the Motor Vehicles act-he having suffered permanent disability as defined under Section 142 of the Motor Vehicles Act. Under Section 140 of the Motor Vehicles Act the amount payable to the appellant is Rs.25,000/-. Needless to say, the said amount will have to be paid along with 8% interest per annum from the date of the claim petition to the date of payment along with costs including advocate's fee of Rs.1,000/-. In the result: a) This appeal is allowed. b) The impugned order is set aside. c) The second respondent is directed to pay an amount of Rs.25,000/- (Rupees twenty five thousand only) along with interest at the rate of 8% per annum from the date of claim to the date of payment and costs (including Advocates fee Rs.1,000/-) to the respondent within a period of 60 days. d) Cheque for the said amount in the name of the 7 **M.A.C.A No.856 OF 2005** claimant shall be produced before the Tribunal by the second respondent and the same shall be handed over to the claimant in accordance with law. **R.BASANT, JUDGE** **N.K.BALAKRISHNAN, JUDGE** mns