Seenath Kabeer, Sinaj Kabeer, Sabeena Kabeer and Sini Kabeer v. The Reliance General Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MRS. JUSTICE SHIRCY V. FRIDAY, THE 8TH DAY OF DECEMBER 2017 / 17TH AGRAHAYANA, 1939 MACA.No. 1835 of 2013 AGAINST THE AWARD IN OPMV 901/2009 of MACT PALA DATED 27-04-2013 APPELLANTS/CLAIMANTS ## 1 SEENATH KABEER, KANNUPARAMBIL HOUSE,KANJIRAPPALLY.P.O. - 2 SINAJ KABEER, KANNUPARAMBIL HOUSE,KANJIRAPPALLY.P.O. - 3 SABEENA KABEER, KANNUPARAMBIL HOUSE,KANJIRAPPALLY.P.O. - 4 SINI KABEER, KANNUPARAMBIL HOUSE,KANJIRAPPALLY.P.O. BY ADVS.SRI.SHAJI THOMAS SRI.N.NAGARESH SRI.BINU PAUL SRI.T.V.VINU RESPONDENTS/RESPONDENTS: 1. SIVASANKARAN NAIR, THOTTARUKIL HOUSE,PAINAVU.P.O,VAZHATHOPE, IDUKKI-685603. 2. SURESH BABU, S/O.SIVASANKARAN NAIR,THOTTARUKIL HOUSE,PAINAVU.P.O, VAZHATHOPE,IDUKKI-685603. 3. THE RELIANCE GENERAL INSURANCE CO.LTD, ELIZABETH ALEXANDER MEMORIAL BUILDING,SHANMUGHAM ROAD,MARINE DRIVE,COCHIN-682031,REPRESENTED BY ITS MANAGER. R3 BY ADV. SRI.K.B.RAMANAND R1,R2 BY ADV. SRI.C.M.TOMY R1,R2 BY ADV. SRI.MATHEW SKARIA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.K. ABDUL REHIM & SHIRCY V.,JJ.** ## **==============================** ## **M.A.C.A.No. 1835 of 2013** ## **==============================** ## **Dated this the 8[th] day of December, 2017** ## **JUDGMENT** ## **Abdul Rehim, J.** The appellants are the claimants in O.P.(MV)No. 901/2009 before the Motor Accidents Claims Tribunal, Pala. The award is challenged to the extent the Tribunal found contributory negligence on the part of the deceased and reduced the compensation by 40%. The appellants are also challenging the amount of compensation awarded, as inadequate. 2. The accident in question occurred on 8.2.2009, when a car hit against the motor cycle on which the person died was riding. Wife and three children of the person died, were the claimants before the Tribunal, in the claim petition filed under Section 163A of the Motor Vehicles Act. The Tribunal MACA 1835/2013 2 awarded a total compensation of Rs.3,02,540/-. But found that the appellants will be entitled only for 60% of the amount, i.e. only Rs.1,81,524/-. 3. Heard; learned counsel for the appellants and learned Standing Counsel appearing for the 3[rd] respondentinsurance company. 4. The main contention raised is against the finding of contributory negligence and the reduction made in the amount of compensation. It is to be noted that the claim petition was filed under Section 163A of the Motor Vehicles Act, in which the aspect of negligence is totally irrelevant. A claim under Section 163A is not based on the proof of negligence. The Tribunal need not arrive at any finding as to who was negligent in causing the accident. In a decision of this court in **National Insurance Co.Ltd. v. Chacko (2011(3)KLT 693)** a Division Bench of this court observed that, Section 163A creates a new, different, distinct and MACA 1835/2013 3 absolute statutory liability where the question of negligence is irrelevant and consequently the question of contributory negligence must also be absolutely irrelevant. In order to ascertain the liability under Section 163A, one need not go beyond the four walls of Section 163A as it is a distinct and different absolute statutory liability imposed by the legislation. The questions to be considered for deciding a claim under Section 163A was streamlined as, (i) Was there an accident arising out of the use of a motor vehicle? (ii) Did that accident result in death or permanent disablement? iii) Who is the authorised insurer of the motor vehicle involved or its owner? iv) Are the claimants the legal heirs of the victim or the victim himself? v) What is the amount of compensation payable under the Second Schedule? vi) If there are plurality of claimants/legal heirs, how the amount is to be distributed among them MACA 1835/2013 4 justly and reasonably? 5. In the case at hand, the Tribunal went highly erred in analysing the evidence and in arriving at a finding to the effect that the deceased had also contributed negligence and also in apportioning the extent of negligence between the deceased and the driver of the Car at 40% : 60%. Such an exercise was absolutely unnecessary for deciding a claim under Section 163A. Consequently, the reduction made to the extent of 40% cannot be sustained. 6. Learned counsel for the appellants pointed out that, despite production of medical bills to the extent of Rs.28,520/- (Ext.A5 series), the Tribunal had failed to award any amount towards medical expenses. In the Note contained under IInd Schedule of the Motor Vehicles act, in Clause 3(iv) it is provided that, the actual expenses incurred before death supported by bills not exceeding Rs.15,000/can be awarded in the category of general damages MACA 1835/2013 5 payable, in addition to the compensation contained in the structured formula. Therefore we are of the opinion that the appellants are entitled for a sum of Rs.15,000/- towards medical expenses. Thus, we hold that the total compensation for which the appellants are entitled is Rs.3,17,540/-, along with interest as stipulated in the impugned award from the date of the claim petition till realisation. 7. In the result, the appeal is allowed in part. The total compensation for which the appellants are entitled is refixed as Rs.3,17,540/-(Rupees three lakh seventeen thousand five hundred and forty only), along with interest and costs as mentioned above. The amount of compensation shall be apportioned among the appellants in the same ratio as contained in the impugned award. 8. The 3[rd] respondent-insurance company shall make deposit of the amount, less the amount if any already paid, MACA 1835/2013 6 within a period of two months from the date of receipt of a copy of this judgment. The appellants will be entitled to approach the Tribunal seeking withdrawal of the amount and the Tribunal shall pass appropriate orders thereon. **Sd/-** **C.K. ABDUL REHIM JUDGE** **Sd/-** **SHIRCY V. JUDGE** **ks.** True copy P.S.to Judge MACA 1835/2013 7 MACA 1835/2013 8