The Oriental Insurance Co. Ltd v. Mohammed Rafeeq and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY ,THE 23RD DAY OF OCTOBER 2018 / 1ST KARTHIKA, 1940** ## **MACA.No. 1273 of 2009** **AGAINST THE AWARD IN OPMV 1185/2001 of MACT ALAPPUZHA DATED 07-092007** ## **APPELLANT/3RD RESPONDENT:** **THE ORIENTAL INSURANCE CO. LTD** **REGIONAL OFFICE, METRO PALACE, GROUND FLOOR,, NORTH RAILWAY STATION ROAD, ERNAKULAM,, REPRESENTED BY ITS DULY AUTHORISED OFFICER.** ## **BY ADV. SRI.VPK.PANICKER** ## **RESPONDENTS/RESPONDENTS:** - **1 MOHAMMED RAFEEK, S/O.ABDUKUTTY, ALUMTHAZHAYIL HOUSE, KAKKAZHAM P.O.** - **2 SHAMEER A., S/O.ABDUL KHADER DEVASWOM PURAYIDOM, BEACH WARD, ALAPPUZHA.** - **3 THE MANAGING DIRECTOR, KSRTC TRIVANDRUM.** - **4 RAMACHANDRAN, S/O.GOVINDAN NAIR ANIL BHAVAN, WARD NO.VIII, PALLIPPAD PANCHAYATH,, HARIPAD.** - **5 JAYAN, S/O.BABY, PUTHUVEL HOUSE THOTTAPPALLY, ALAPPUZHA.** - **6 BRANCH MANAGER, NATIONAL INSURANCE CO.LTD., NEAR Y.M.C.A JUNCTION, ALAPPUZHA.** - **7 D.VISWAMBHARAN, S/O.DAMODARAN** - **PUTHUVAL HOUSE, WARD NO.XI, PURAKKAD PANCHAYATH,, THOTTAPPALLY, ALAPPUZHA. (FATHER OF THE DECEASED, JAYAKUMAR).** - **8 BHARATHY, W/O.VISWAMBHARAN PUTHUVAL HOUSE, WARD NO.XI, PURAKKAD PANCHAYATH,,** - **THOTTAPPALLY, ALAPPUZHA (MOTHER OF THE DECEASED, JAYAKUMAR** MACA.No. 1273 of 2009 2 - **9 AMBIKA, W/O.CHANDRAN PUTHUVAL HOUSE WARD NO.XI, PURAKKAD PANCHAYATH, THOTTAPPALLY,, ALAPPUZHA. (SISTER OF THE DECEASED JAYAKUMAR).** - **10 JAYAPRAKASAN, S/O.D.VISWAMBHARAN PUTHUVAL HOUSE, WARD NO.XI, PURAKKAD PANCHAYATH,, THOTTAPPALLY, ALAPPUZHA. (BROTHER OF THE DECEASED, JAYAKUMAR).** - **11 KAVITHA, D/O.D.VISWAMBHARAN PUTHUVAL HOUSE, WARD NO.XI, PURAKKAD PANCHAYATH,, THOTTAPPALLY, ALAPPUZHA. (SISTER OF THE DECEASED, JAYAKUMAR).** **BY ADVS. SMT.DEEPA GEORGE SRI.K.I.SAGEER SRI.M.A.GEORGE SRI.A.MOHAMMED SRI.BABU JOSEPH KURUVATHAZHASCKSRTC SRI.JOY GEORGE SC K.S.R.T.C. SRI.V.V.NANDAGOPAL NAMBIARSC KSRTC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No. 1273 of 2009 3 ## **JUDGMENT** This appeal is preferred against the award in OP(MV) No.1185/2001 of Motor Accidents Claims Tribunal, Alappuzha by the insurer. On 09.10.2000 at 2.00 pm, one Jayakumar sustained injuries in a motor accident at Thottappally and the legal heirs of the deceased preferred the above claim petition under Section 163A of the Motor Vehicles Act, 1988 and the learned Tribunal awarded compensation of Rs.2,93,000/- with 7.5% interest and cost. Being aggrieved by that, the insurer of the offending vehicle preferred this appeal. 2. Petitioner's case in the lower court was that on 09.10.2000 at 2.00 pm, the deceased was driving a motor cycle KL-04 G 211 with a pillion rider along the Kollam - Alappuzha NH road, when he reached at the place of occurrence, another motor cycle KL-4/H 146 driven in a rash and negligent manner hit against the handle of the motor cycle, as a result he fell down, at that time a KSRTC bus KL15/977 driven in a rash and negligent manner hit against the deceased. As a result, he sustained serious injuries and on the way to the hospital he succumbed to the injuries. MACA.No. 1273 of 2009 4 Petitioners are the legal heirs of the deceased Jayakumar. 3. The first and second respondents disputed the accident and contended that the accident was due to the negligence of the deceased. The insurer of KL-4/H146 admitted the insurance of the vehicle. The fourth respondent also contended that the accident was due to the negligence of the deceased. The fifth and sixth respondents were set exparte. The insurer of KL-04/G 211, who is the seventh respondent, admitted the insurance of the vehicle. Claimants evidence consist of oral testimony of PW1 to PW4 and documentary evidence of Exts.A1 to A4. Respondents evidence consist of oral testimony of RW1 and documentary evidence of Exts.B1 to B4. 4. The learned counsel appearing for the appellant contended that the deceased was getting more than Rs.3,000/- as the monthly income. The compensation under Section 163A is only to those persons, who are having annual income of Rs.40,000/- and below. The income of the deceased was shown as Rs.5,000/- per month and the learned Tribunal cannot reduce the income from Rs.5,000/- to Rs.4,000/-. Therefore, the special provision for payment of compensation MACA.No. 1273 of 2009 5 on structured formula basis is not applicable and the learned Tribunal without considering the legal provision awarded huge amount as compensation. 5. Section 163(A) of the Motor Vehicles Act read as follows: _“S.163-A. Special provisions as to payment of compensation on structured formula basis.-(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle of the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be._ _(2) In any claim for compensation under subsection (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person._ _(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.”_ 6. The application under Sec.163A would be limited to the victims who had income upto Rs.40,000/- per MACA.No. 1273 of 2009 6 annum and those victims who had income beyond Rs.40,000/per annum are required to go for claim under Sec.166 of the Act. Sec.163-A is provided for a person having fixed income with an instant relief with low income upto Rs.40,000/- per annum. Persons with high income may also be equally compensated if they lose the bread-winner on calculating Rs.40,000/- per annum. Application under Sec.163-A is not tenable, if made by a person whose income exceeds Rs.40,000/- per annum. But, in case the person with the higher income notionally brings down his income to Rs.40,000/- in order to present his claim under Sec.163-A, the same can be permitted. 7. In this context, I have examined the pleadings and evidence in this petition. The deceased was a painter by profession and claimed Rs.4,000/- per month. Subsequently, it was amended to Rs.3,000/-. PW1, who is the father of the deceased deposed that he was getting Rs.5,000/- per month. He also produced Ext.A4 income certificate issued from Village Officer, Purakkad, which shows that the deceased was getting Rs.48,000/- per annum. PW3, who is the employer of the deceased deposed that the deceased was getting minimum MACA.No. 1273 of 2009 7 Rs.200/- to Rs.235/- per day. Considering the above evidence with regard to income, it is found that the deceased was getting more than Rs.40,000/- per annum. The legal heirs of the deceased cannot claim compensation under Section 163A of the Act. ## 8. This court in _**National Insurance Co. Ltd. v.**_ ## _**Aravindakshan (2016 (2) KLT 713)**_ held as follows: _“5. From the above, it is clear that the parties before the Tribunal cannot seek to fix a cap or ceiling to the monthly income, so as to bring it down, to be dealt with under S.163A, if the actual income is higher than the maximum limit. In the instant case, based on the materials on record, the Tribunal has fixed the monthly income as Rs.5,000/- i.e., with the annual income of Rs.60,000/-. As such, the claim is not actually maintainable under S.163A._ _6. A question arises as to the further course of action. If the claim is not maintainable under S.163A, the party is still at liberty to have the negligence on the part of the concerned party pleaded and proved, seeking to sustain the claim based on the 'principle of fault' in terms of S.166 of the Motor Vehicles Act. Whether the matter requires to be remanded is the point to be considered”._ The Division Bench relied the decision of apex court reported in _**Deepal Girishbhai Soni v. United India Insurance Co.**_ MACA.No. 1273 of 2009 8 _**Ltd (2004 (ii) ACJ 934 SC).**_ In the above decision, apex court distinguished its earlier decision reported in 2001 ACJ 827 and held that Section 163A provides a distinct scheme for the victims of accident whose income is upto Rs.40,000/- per annum. All other claims are required to be determined in terms of the Chapter XII of the Motor Vehicles Act. If that be the position, the finding of the Tribunal is hereby set aside and the matter is remitted to the lower court for fresh consideration as per law. Hence, the award passed by the Tribunal is hereby set aside and both parties are directed to appear before the Motor Accidents Claims Tribunal, Alappuzha on 10.12.2018. The Tribunal is directed to dispose the matter as per law at the earliest. Sd/- **P.D.RAJAN JUDGE** bng/26.10.18