Sankaran K v. Mohankumar and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` TUESDAY, THE 23[RD] DAY OF JANUARY 2024 / 3RD MAGHA, 1945 ``` ## **`MACA NO. 1600 OF 2011`** ``` AGAINST THE AWARD DATED 03.05.2011 IN OP(MV) 2476/2003 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR ``` ## **`APPELLANT/PETITIONER:`** ``` SANKARAN.K S/O KARTHIAYANI AMMA CHANKODATH HOUSE, PUTHURKKARA, P.O.AYYANTHOLE, THRISSUR DISTRICT. ``` ``` BY ADV SRI.P.V.CHANDRA MOHAN ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1A. MOHANKUMAR S/O NARAYANAN NAIR, AINICKAL HOUSE, P.O.PULLAZHI, THRISSUR DISTRICT. ``` ``` 2BABU S/O. THOMAS MENACHERY, NEAR RAILWAY STATION ROAD, P.O.OLLUR, THRISSUR DISTRICT, PIN 680001. ``` ``` 3THE ORIENTAL INSURANCE CO.LTD. DIVISIONAL OFFICE, 3RD FLOOR, MAHESWARI BUILDING,, M.G.ROAD, THRISSUR, PIN 680001 ``` ``` 4C.V.MANOJKUMAR S/O. VISWAMBHARAN CHITTILAPPILLY HOUSE, PURANATTUKARA, THRISSUR, PIN 680001 ``` ``` 5THE NEW INDIA ASSURANCE CO. LTD. PERINCHERY BUILDING, ROUND NORTH, THRISSUR DISTRICT, PIN 680001 ``` ``` 2 ``` ## **`MACA NO. 1600 OF 2011`** ``` BY ADVS. A.R.GEORGE RAJI T.BHASKAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1600 OF 2011 ``` ``` 3 ``` ## **`JUDGMENT`** The appellant was the petitioner in O.P.(M.V.) No.2476/2003 on the files of the Additional Motor Accident Claims Tribunal, Thrissur, which was submitted by him under Section 163A of the Motor Vehicles Act, 1988, seeking compensation for the injuries sustained in a motor accident that occurred on 13.04.2002. 2. According to him, the accident occurred when the motorcycle ridden by him, collided with an autorickshaw bearing Registration No.KL 8 H 7329. The said autorickshaw was being driven by the 2nd respondent, owned by the 1st respondent and was insured with the 3rd respondent at the relevant time. The 4th respondent was the registered owner of the motorcycle, which was being ridden by the appellant and was insured with the 5th respondent. According to him, he sustained serious injuries. He was carrying out the work of repairing tyres with a monthly income of Rs.3,300/-. The claim petition was submitted in such circumstances. 3. The 1st and 2nd respondents filed a joint written statement denying the negligence on the part of the 2nd ``` MACA NO. 1600 OF 2011 ``` ``` 4 ``` respondent. The 3rd respondent, the insurer of the autorickshaw, filed a written statement admitting the coverage of the policy but disputed the negligence as well as the quantum of compensation. The 5th respondent filed a written statement admitting the coverage of the policy for the motorcycle but contended that they cannot be held responsible for paying the compensation. 4. The evidence in this case consists of oral testimonies PWs 1 and 2, and as documentary evidence, Exts.A1 to A8 were marked. After the trial, the Tribunal found that, as the appellant was riding the motorcycle after borrowing the same from the 4th respondent, he stepped into the shoes of the registered owner of the said vehicle. Hence, it was held that the claim petition under Section 163A was not maintainable. Accordingly, the said application was dismissed. Challenging the said finding, this appeal is submitted by the appellant. 5. Heard Sri.P.V. Chandramohan, learned counsel appearing for the appellant, Sri.A.R. George, learned counsel appearing for the 3[rd] respondent and Smt.Raji T. Bhaskar, ``` MACA NO. 1600 OF 2011 ``` ``` 5 ``` learned counsel appearing for the 5[th] respondent. 6. The learned counsel for the appellant contends that the finding of the Tribunal that since he was riding the motorcycle after borrowing the same from the registered owner of the said vehicle, the 4th respondent steps into the shoes of the registered owner was not at all proper. The specific contention in this regard was that the fact as to whether he borrowed the vehicle or not from the registered owner was not at all relevant as far as the present case is concerned since the accident, in this case, was not a self-accident. 7. After considering the materials placed on record, I find force in the said contention. Evidently, the accident was the result of a collision of two vehicles. The Honourable Supreme Court in **Ningamma & Anr. v. United India Insurance Co. Ltd. [(2009) 13 SCC 710]** applied the concept of stepping into the shoes of the owner, in a case in which the accident was a self-accident where no other vehicle was involved. In the said case, the victim himself was riding the vehicle, and without the involvement of any other vehicle, it met with an accident, thereby causing injuries to the ``` MACA NO. 1600 OF 2011 ``` ``` 6 ``` victim. However, in this case, evidently, the accident occurred due to a collision between a motorcycle and an autorickshaw. As far as the driver, owner and insurer of the autorickshaw are concerned, the appellant is a third party and under no circumstances, the concept of stepping into the shoes of the registered owner cannot be made applicable as regards the claim put forward against the said persons. Therefore, the finding of the Tribunal in this regard is liable to be interfered with. 8. Of course, it is true that, as per the Police report, the appellant herein was implicated as the accused. However, the position of law in this regard is also settled in the light of **United India Insurance Co. Ltd v. Sunil Kumar [2017 (4) KLT 1093 (SC)],** wherein the Honourable Supreme Court held that a claim under Section 163A of the Motor Vehicles Act, 1988 cannot be defeated, by highlighting the negligence on the part of the claimant. Therefore, the said fact also loses its significance when it comes to the question of the maintainability of an application under Section 163A in this case. Thus, from the above, the only conclusion possible is that the application under Section 163A of ``` MACA NO. 1600 OF 2011 ``` ``` 7 ``` the Motor Vehicles Act at the instance of the appellant herein was maintainable against the respondents 1 to 3, the owner, the driver and the insurer of the autorickshaw. 9. The decision on the above issue leads us to the next aspect, i.e. the quantum of compensation. According to the appellant, he was engaged in repairing tyres with a monthly income of Rs.3,300/-. He was 34 years old at the time of the accident. To show the permanent partial disability suffered by the appellant consequent to the injuries, Ext.A7 disability certificate was relied on wherein the percentage of disability certified was 8%. The said certificate was properly proved through PW2, the Doctor who issued the said certificate. In his deposition, he asserted that the appellant sustained permanent partial disability of 8%. Therefore, in the light of the aforesaid evidence, the percentage of disability can be accepted as 8%. Thus, while assessing the compensation for disability with the above criteria, the amount would come to Rs.50,688/- (3,300 x 12 x 16 x 8/100). Considering the nature of injuries and their impact, Rs.5,000/- is awarded towards pain and suffering, which is the maximum ``` MACA NO. 1600 OF 2011 ``` ``` 8 ``` allowable as per the 2[nd] Schedule of the Motor Vehicles Act, which is applicable to an application under Section 163A of the Act. From the nature of injuries and the treatment availed by him, it can be held that the appellant must have been prevented from pursuing his avocation at least for a period of two months. Therefore, an amount of Rs.6,600/- is awarded towards loss of earnings. The appellant produced medical bills for an amount of Rs.2,596/- towards the expenses incurred for treatment. The said amount is also awarded. Accordingly, the total compensation is determined as Rs.64,884/- (50688 + 5000 + 6600 + 2596). In the result, this appeal is allowed with the following orders: - i The award passed by the Tribunal dismissing the claim petition is set aside. It is held that the claim petition submitted by the appellant is maintainable against respondents 1 to 3 herein, who are liable to pay the compensation jointly and severally. As the coverage of the policy for the autorickshaw, which was owned by the 1st respondent, is accepted by the 3rd respondent, the 3rd respondent is held liable to pay the entire amount of ``` MACA NO. 1600 OF 2011 ``` ``` 9 ``` compensation. - ii The quantum of compensation is determined as Rs.64,884/(Rupees sixty four thousand eight hundred and eighty four only) and the said amount shall be deposited by the 3[rd] respondent with interest @ 8% per annum from the date of petition till realisation with proportionate costs, within a period of three months from the date of receipt of a copy of this judgment. It is further clarified that the claimant shall furnish the details of the PAN card, Aadhar Card and bank details to enable the Insurance Company to make the deposit as ordered above, within period of two months from the date of receipt of a copy of this judgment. In case, he fails to furnish the said details, it shall be open for the insurance company to deposit the same amount before the Tribunal. **Sd/-** **`ZIYAD RAHMAN A.A. JUDGE`** scs