High Court of KeralaDivision Bench2011-07-12Appeal Allowed

Sivadasan K. v. Sukumaran, Sreelatha and Oriental Insurance Company Ltd.

Case / Petition Number:MACA.No.1033 of 2005

Neutral Citation::null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Basant
N.K. Balakrishnan
Judgment Date: 2011-07-12
Court Decision / Holding: The appeal is allowed. The claim must be considered under Section 163A of the Motor Vehicles Act (as requested by the appellant) with the following quantum: permanent disablement Rs. 1,92,000; pain and suffering Rs. 5,000; medical expenses Rs. 15,000; total Rs. 2,12,000, with 9% interest. Respondent No.3 (insurer) to discharge liability with interest from the claim date. All other directions of the Tribunal regarding disbursement are upheld; any previously deposited amounts shall be adjusted toward this liability.
Final Disposition: Appeal Allowed

Parties to the Case

Appellants / Petitioners

Sivadasan K., S/O. T.R. Kunju aged 48 years, KattaKalalam House, Vadakkethara, Kavassery P.O., Alathur Taluk, Palakkad District.

Respondents

Sukumaran, S/O. Chamunni, aged 61 years, Murikkavu, Yakkara, Yakkara AMSOM, Palakkad Taluk, Palakkad District.
Sreelatha, W/O. Manickan, age not known, Kannimoothan House, Moothanthara, Koduvayur, Chittur Taluk, Palakkad District.
M/S. Oriental Insurance Company Ltd., V.H. Road, Palakkad.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Binoy Vasudevan

Counsels for Respondents

• Sri James Kurian
• Sri Santhosh Manayil
• Sri Mathews Jacob
• Sri P. Jacob Mathew

Case Synopsis & Summary

This High Court of Kerala, in a Motor Accident Claims Appeal (MACA No. 1033 of 2005) arising from MACT Palakkad OPMV.2162/1995, allowed an appellant-driver’s challenge to an MACT award. Sivadasan, the claimant-driver injured in a 21.01.1995 accident, sought compensation under Sections 163A and 166 of the Motor Vehicles Act. The Tribunal primarily computed under Section 166, granting the claimant 50% of the loss from the other vehicle’s owner and insurer (Rs. 1,10,125). The appellant argued that the claim should have been considered under 163A, and that Oriental Insurance Co. v. Dhanabai Kanji Gadhvi (SC) clarified that a claimant may specify 163A even when both provisions are involved. The High Court agreed, citing the Supreme Court decision and concluding that the Tribunal should have accepted the 163A option. Recomputing under 163A, the court held the claimant’s permanent disablement to be 50%, with the applicable multiplier of 16 (age about 35–40) and a monthly income of Rs. 2,000. Medical expenses limited to Rs. 15,000 under the Second Schedule, the award amounts to: permanent disablement Rs. 1,92,000; pain and suffering Rs. 5,000; medical expenses Rs. 15,000; total Rs. 2,12,000. Interest at 9% is affirmed; insurer’s liability is fixed, and prior deposit/awards are adjusted accordingly. The appeal is allowed; the tribunal’s other directions are upheld.

Provisions of Law Cited

Motor Vehicles Act, 1988 – Section 163AMotor Vehicles Act, 1988 – Section 166Second Schedule, Entry 4(II) (Medical expenses cap)The Workmen's Compensation Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant submits that the MACT erred by not applying Section 163A despite explicit request; a claimant may specify 163A even when 163A and 166 are pending (per Oriental Insurance Co. v. Dhanabai Kanji Gadhvi, SC). The Tribunal’s computation under 166 used a 25% loss figure, whereas 50% disablement should be used for 163A; medical expenses under the Second Schedule are capped at Rs. 15,000; with monthly income Rs. 2,000, age-estimated multiplier 16, the calculation yields Rs. 1,92,000 for permanent disablement, plus Rs. 5,000 for pain and suffering and Rs. 15,000 for medical expenses (total Rs. 2,12,000). Interest at 9% should be payable; insurer’s liability under 163A is admitted; thus the 166-based award should be set aside and replaced with 163A-based quantum.

Contentions of Respondents

The Tribunal was justified in computing under Section 166; while the claimant could request 163A, the ultimate liability depends on the Tribunal’s evaluation of evidence and for the insurer’s liability, which is admitted. The medical cap (Rs. 15,000) and the 50% disablement must be considered consistent with the Second Schedule; the 9% interest from the date of claim should be observed; the Tribunal’s directions on disbursement and deposits should stand unless expressly displaced by the appellate court.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Oriental Insurance Company Limited v. Dhanabai Kanji Gadhvi	2011 (1) KLT 617 (SC)	Positive	The Supreme Court decision confirms that a claimant may specify 163A despite pending 163A and 166 claims, guiding the High Court’s approach in this case.

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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** **TUESDAY, THE 12TH JULY 2011 / 21ST ASHADHA 1933** **MACA.No. 1033 of 2005()** **-----------------------** ## **OPMV.2162/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD** **....................** ## **APPELLANT/PETITIONER:** **-----------------------------------** **SIVADASAN. K., S/O. T.R. KUNJU AGED 48 YEARS, KATTAKALAM HOUSE, VADAKKETHARA, KAVASSERY P.O., ALATHUR TALUK, PALAKKAD DISTRICT.** **BY ADV. SRI.BINOY VASUDEVAN** ## **RESPONDENTS/RESPONDENTS:** **--------------------------------------------** **1. SUKUMARAN, S/O. CHAMUNNI, AGED 61 YEARS, MURIKKAVU, YAKKARA, YAKKARA AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT.** **2. SREELATHA, W/O. MANICKAN, AGE NOT KNOWN, KANNIMOOTHAN HOUSE, MOOTHANTHARA, KODUVAYUR, CHITTUR TALUK, PALAKKAD DISTRICT.** **3. M/S. ORIENTAL INSURANCE COMPNAY LTD., V.H. ROAD, PALAKKAD.** **R2 BY ADVS. SRI.JAMES KURIAN SRI. SANTHOSH MANAYIL R3 BY ADVS. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **VK** ## **R.BASANT & N.K.BALAKRISHNAN, JJ. --------------------------------------------------C.M.Appl.No.1439 of 2005 & M.A.C.A No.1033 OF 2005** **--------------------------------------------------Dated this the 12[th ] day of July, 2011** ## **ORDER/JUDGMENT** ## **BASANT,J.** Heard. Allowed. The delay of 108 days is condoned. M.A.C.A No.1033 of 2005: Claimant is the appellant. He staked the claim for compensation for loss suffered by him on account of personal injuries in a Motor Vehicle Accident which took place on 21.01.1995. His claim petition described the claim to be one under Section 163 A and 166 of the Motor Vehicles Act. He was the driver of one of the vehicles involved in the accident. 2. The impugned award clearly shows that at the stage of determination of the claim the appellant had specified that his claim must be considered under Section 163A of the Motor Vehicle Act. The Tribunal did not obviously accept that request. The Tribunal felt that impleadment of the owner and insurer of the vehicle which the appellant was driving at the relevant time was essential for considering the claim under Section 163A of the Motor Vehicles Act and The Tribunal however, proceeded to **C.M.Appl.No.1439 of 2005 & M.A.C.A No.1033 OF 2005** 2 consider the claim under Section 166 of the Motor Vehicles Act and ultimately came to the conclusion that the appellant is entitled to claim 50% of the loss suffered by him from the Driver owner and insurer of the other vehicle involved in the accident, that is the respondents herein. Accordingly, a direction was issued to the respondents to pay an amount of Rs.1,10,125/- as compensation under Section 166 of the Motor Vehicles Act. 3. The appellant claims to be aggrieved by the impugned award. We have heard the learned counsel for the appellant/claimant and respondent/insurer. The insurers liability whether under Section 166 or under 163 A is not disputed. The learned counsel for the appellant assails the impugned order on the following specific grounds: 1. The Tribunal erred grossly in not considering the claim under Section 163 A of the Motor Vehicles Act as specifically requested by the appellant before the matter was taken up for consideration. 2. At any rate, the appellant is entitled to the amounts claimed under Section 163 A of the Motor ## **C.M.Appl.No.1439 of 2005 & M.A.C.A No.1033 OF 2005** 3 Vehicles Act. 4. Point No.1: It is now well settled that the claimant has an option to stake the claim either under Section 163A or under Section 166 of the Motor Vehicles Act. The decision in **Oriental Insurance Company Limited v. Dhanabai Kanji Gadhvi (SC) [(2011 (1)** **KLT 617 (SC)** ] makes it very clear that the claimant has an option to specify that his claim may be considered under Section 163A of the Motor Vehicles Act notwithstanding the fact that simultaneously claims under Section 163A and 166 were pending at the relevant time. The last trace of doubt on the question is removed by the decision in **Dhanabai** (supra) and we are in total agreement with the learned counsel for the appellant that the Tribunal must have accepted the appellant's request to consider his claim as one under Section 163A of the Motor Vehicles Act. Point No.1 is thus answered in favour of the appellant. ## 5. **Point No.2:** The next question is about the quantum of compensation payable under Section 163 A of the Motor Vehicles Act. The Tribunal while computing the compensation under Section 166 of ## **C.M.Appl.No.1439 of 2005 & M.A.C.A No.1033 OF 2005** 4 the Motor Vehicles Act had come to the conclusion that the appellant has suffered loss to the tune of Rs.2,20,250/-, though the direction to the respondents was to pay only 15% of the said amount; that is Rs.1,10,125/-. That the appellant had suffered permanent disablement is not in dispute. Of course, there is a dispute about the extent of such permanent disablement. 6. The appellant was referred to the Medical Board at the District Hospital Palakkad and the Medical Board had certified the permanent disability to be 50%. The appellant is a driver by profession. Considering the nature of the physical disability and the nature of employment/avocation of the appellant. It can safely be assumed that 50% is the reduction in earning capacity/permanent disablement under the provisions of The Workmen's Compensation Act. Entries 1, 2, 3 and 4 of Part II of Schedule I clearly indicates that the loss could not have been below 50%. Our attention has been drawn to the fact that the Tribunal had reckoned the percentage reduction in earning capacity to compute the compensation under Section 166 only at 25%. One of the members of the Medical Board who was examined as PW2 had opined that considering the nature of **C.M.Appl.No.1439 of 2005 & M.A.C.A No.1033 OF 2005** 5 employment the extent of disability would even be greater. The learned counsel for the appellant submits that 50% must be reckoned as the extent of disablement while computing the compensation under Section 163 A. We find the said request to be absolutely reasonable. We find no reason to adopt any other figure as the extent of permanent disablement/disability for the purpose of Section 163A of Motor Vehicles Act. 7. The next question is what is the compensation payable under Section 163 A. The appellant is shown to be aged between 35 and 40 years and 16 can in these circumstance be safely reckoned as the multiplier applicable as per the Second Schedule. The Tribunal had come to the conclusion that the monthly income of the appellant is Rs.2,000/-. That amount can hence be safely reckoned as the multiplicand. Medical bills to evidence expenses exceeding Rs.15,000/- were produced before the Tribunal and the Tribunal had accepted the same also. But in a claim under Section 163A in view of Entry 4 (II) of the Second Schedule the maximum amount that is payable as medical expenses is only Rs.15,000/- notwithstanding the fact that bills have been produced for a higher amount. **C.M.Appl.No.1439 of 2005 &** **M.A.C.A No.1033 OF 2005** 6 8. The appellant will consequently be entitled for the following amounts under Section 163 A of the Motor Vehicles Act: 1. Compensation for permanent disablement : Rs.1,92,000/- (2000x12x50/100x16) 2. Pain and suffering under Entry 4(1)A, : Rs.5,000/injuries being grievous. 3. Medical Expenses under Entry 4(2) : Rs.15,000/----------------Total Rs.2,12,000/- 9. The Tribunal had directed payment of interest at the rate of 9% per annum. The insurer has not challenge the said direction in this appeal. We do not think it is necessary to interfere with the percentage of interest awarded by the Tribunal. 10. The respondents 2 and 3 are liable to pay the said amount as compensation under Section 163 A of the Motor Vehicles Act with interest. ## 11. In the result, a. This appeal is allowed. b. We accept the contention of the appellant that the claim must have been considered under Section 163 A of the Motor Vehicles Act. **M.A.C.A No.1033 OF 2005** 7 ## **C.M.Appl.No.1439 of 2005 &** c. It is found that the appellant is entitled for an amount of Rs. 2,12,000/- as compensation under Section 163A of the Motor Vehicles Act. d. Respondent No.3 admittedly being the insurer shall discharge the liability along with interest at the rate of 9% from the date of the claim to the date of deposit and proportionate costs. - e. All other directions issued by the Tribunal regarding disbursement are upheld. 12. Needless to say, the amount if any deposited/paid already shall be adjusted towards the liability under this judgment. **R.BASANT, JUDGE** **N.K.BALAKRISHNAN, JUDGE** mns