THE ORIENTAL INSURANCE CO. LTD. v. SHAJI MON N.G. & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE R.BASANT** **& THE HONOURABLE MRS. JUSTICE M.C.HARI RANI** **FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933** **MACA.No. 1318 of 2011** **-----------------------** **OPMV.1238/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA** **....................** ## **APPELLANTS: 2ND RESPONDENT** **----------------------------** **THE ORIENTAL INSURANCE CO. LTD., RANNI, REP. BY THE AUTHORIZED SIGNATORY, THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE, METRO PALACE, ERNAKULAM NORTH, KOCHI-18.** **BY ADV. SRI.A.R.GEORGE** ## **RESPONDENTS: CLAIMANT** **-----------------------** ## **1. SHAJI MON N.G.,** **S/O.G.VARGHESE, PALLICKAL PUTHEN VEEDU, MUTTATHUKONAM MURI, CHENNEERKARA VILLAGE, KOZHENCHERRY TALUK.** **2. SMT.ROSAMMA MATHEW, S/O.THOMAS MATHEW, MURUPPEL PUTHEN VEEDU, THUMBAMON NORTH P.O., PATHANAMTHITTA.** **3. MANAGING DIRECTOR, KSRTC, THIRUVANANTHAPURAM.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19/08/2011, THE COURT ON THE SAME DAY DELIVERIED THE FOLLOWING:** ## **R. BASANT & M.C. HARI RANI,JJ ==============================** ## **M.A.C.A. NO. 1318 OF 2011 ============================** ## **Dated this the 19[th] day of August 2011** ## **JUDGMENT** ## **R.Basant, J.** The insurance company is the appellant. The claim was under Sec.163A of the Motor Vehicles Act. It was a case of personal injuries resulting in permanent disablement. The Tribunal accepted the claim and awarded compensation under Sec.163A of the M.V. Act. 2. It was a case of collision between two vehicles. The insured vehicle had a collision with a K.S.R.T.C. bus. The victim/ claimant was the driver of the insured vehicle. He did not choose to claim compensation against the K.S.R.T.C. It is not difficult for a person having experience in the field to ascertain why he did not exercise the option to proceed against the K.S.R.T.C. Awards against the K.S.R.T.C. are languishing on the files of many M.A.C.Ts. without execution. The claimant appears to have taken a prudent decision that he wants relief MACA 1318/2011 2 and not a mere award to be obtained. He hence exercised his option under Sec.163A of the M.V. Act to claim compensation against the owner and authorised insurer of the vehicle which he was driving. He therefore claimed compensation only against the owner and insurer of the vehicle which he was driving. Later to avoid the criticism of non-joinder, he arrayed the K.S.R.T.C. also as a respondent. 3. At the stage of admission, we have heard the learned counsel for the appellant in detail. The learned counsel for the appellant impassionately requested that the appeal may be admitted and the appellant does not want to seek any order of stay. But we felt that the questions arising for consideration do not deserve to wait any longer for resolution. Therefore we requested the counsel to advance detailed arguments on merits in support of the challenge raised by him. 4. Learned counsel for the appellant challenges the impugned award on two grounds. First of all, the learned counsel for the appellant submits that the claim is bad in law for the reason that the claimant has staked claims only against one of the two vehicles involved in the accident. Counsel argues that it is not necessary to absolve the owner/insurer of the other MACA 1318/2011 3 vehicle from any liability under Section 163A of the Motor Vehicles Act. It would be unjust to mulct the appellant with the entire liability when the claim could have been made against the owners/insurers of both vehicles. 5. This Court had occasioned to consider this question earlier. By the judgment in **United India Insurance Co.Ltd. v. Madhavan[2011(3)K.H.C.299].** It has been held that in a claim under Section 163A, where plurality of vehicles are involved, the option vests with the claimant to stake his claim against the owner/authorised insurer of either or both vehicles. As in the case of claims under Section 140 of the Motor Vehicles Act, the option must be held to be available entirely with the claimant, it was held. We find absolutely no reason to disagree with the conclusions in **Madhavan(supra)** . No arguments have been advanced against the dictum in **Madhavan(supra)** except that it results in unjust mulcting of entire liability on the appellant and undeserved exoneration of the owner/insurer of the other vehicle. 6. As held in **Deepal Girishbhai Soni v. United India Insurance Co.Ltd.(A.I.R. 2004 S.C. 2107)** the provisions of 163A of the Motor Vehicles Act must be reckoned as a code in MACA 1318/2011 4 itself. It is a piece of social security legislation as held by their Lordships in **Deepal Girishbhai Soni(supra)** . The option of the victim to claim against the owners/insurers of either or both vehicles under Section 163A is not in any way hampered by the express language of the provision or the purpose which the provision has to serve. We are, in these circumstances, satisfied that the appellant's attempt to assail the impugned award on this first ground cannot succeed. 7. Learned counsel for the appellant then contends that the police, after investigation, had filed charge sheet against the claimant herein. Inasmuch as the claimant was negligent and he is a tortfeasor himself, he cannot be permitted to claim compensation for the loss which he has suffered on account of his own fault, argues the learned counsel for the appellant. 8. To us it appears that this argument is not worthy of acceptance. The argument stems from an inability/refusal to clearly perceive and appreciate the shift in law which is brought in by the provisions of Section 163 A of the Motor Vehicles Act. This Court has already dealt with the question in detail in the decision in **National Insurance Co.Ltd. v. P.C.Chacko & others) 2011(3)KHC 435).** MACA 1318/2011 5 9. We have no doubt left in our mind that negligence is irrelevant in a claim under Section 163A of the Motor Vehicles Act. Negligence need not be proved in a claim under Section 163A. Contributory negligent is also consequently irrelevant. No fault liability under Section 163A does not depend on negligence at all. It is a new different, distinct, absolute, statutory liability imposed by the legislature. We are not embarking on a more detailed consideration. We accept and follow **Chacko (supra)** and this judgment must be read in continuation of the judgment in **Chacko(supra).** 10. If there be any doubt on this aspect, the last trace of doubt according to us, must be held to be resolved by the decision of the Full Bench of this Court in **National Insurance Co.Ltd. v. Malathi C.Slian (2003(3)K.L.T.460(FB)).** It is true that in a subsequent decision in **Suresh v. Vasantha Shetty [2009(1)K.L.T.72]** has expressed doubts about the validity of the dictum in **Malathi C.Salian (supra).** We entertain no doubt whatsoever in our mind. The position has been explained in **Chacko (supra).** We are not persuaded to agree that it is necessary to wait for the decision on reference consequent to the decision in **Suresh (supra)** . We are bound MACA 1318/2011 6 by the decision in **Malathi C.Salian(supra)** and we agree completely with the dictum therein . In these circumstances, the argument built on the theory of negligence on the part of the claimant must necessarily fall on the ground. 11. No other contentions raised at the Bar. We are satisfied that this appeal deserves to be dismissed. 12. In the result, this appeal is dismissed inlimine. Sd/- **R.BASANT, JUDGE** **Sd/M.C. HARI RANI,JUDGE** ks. TRUE COPY P.S. TO JUDGE **R.BASANT, JUDGE** MACA 1318/2011 7 **M.C. HARI RANI,JUDGE** ks. MACA 1318/2011 8 MACA 1318/2011 9 Learned counsel for the appellant challenges the impugned award on two grounds. First of all, the learned counsel for the appellant submits that the claim is bad in law for the reason that the claimant staked claims only against one of the two vehicles involved in the accident. Counsel argues that it is not necessary to absolve the owner/insurer of the other vehicle from any liability under Section 163A of the Motor Vehicles Act. It would be unjust to mulct the appellant with the entire liability when the claim could have been made against both the owners/insurers of both vehicles. This Court had occasioned to consider this question earlier by the judgment in United India Insurance Co.Ltd. v. Madhavan [2011(3)K.H.C.299]. It has been held that in a claim under Section 163A where plurality of vehicles were involved, the option vests with the claimant to seek his claim imposed either or both. As of now claims under Section 140 of the Motor Vehicles Act, the option must be held to be available entirely with the claimant, it was held. We find absolutely no reason to disagree with the conclusions in Madhavan(supra). No arguments have been advanced against the dictum in **Madhavan(supra)** except it results in unjust mulcting of entire MACA 1318/2011 10 liability on the appellant and undeserved exoneration of the owner/insurer of the other vehicle. As held in **Deepal Girishbhai Soni v. United India Insurance Co.Ltd., Baroda, A.I.R.2004 S.C.2107** , the provisions of 163A of the Motor Vehicles Act must be reckoned as a **code** in itself. It is a peace of social security legislation as held by their Lordships in **Deepal Girishbhai Soni (supra)** . The option of the dictum to claim against the owners/insurers of either or both vehicle under Section 163A is not in any way hampered by the express language of the provision of the purpose which the provision has to serve. We are in these circumstances satisfied that the appellant's attempt to assail the impugned award on this first ground cannot succeed. Learned counsel for the appellant then contends that the police after investigation had filed charge sheet against the claimant herein. Inasmuch as the claimant was negligent and he is a tortfeasor himself. He cannot be permitted to claim compensation for the loss which he has suffered on account of his fault, argues the learned counsel for the appellant. To take us, it appears that this argument is noteworthy and acceptance. The arguments stems and as inability/refusal to clearly perceive MACA 1318/2011 11 and appreciate the shift in law which is brought in by the provisions of Section 163 A of the Motor Vehicles Act. We have already held that the question in detail in the unreported judgment of this Court in M.A.C.A.No.223/2007 (National Insurance Co.Ltd. v. P.C.Chacko & others) W have no doubt left in our mind that negligence is a irrelevant in a claim under Section 163A of the Motor Vehicles Act. Negligence need not be proved the claim under Section 163A. Negligence is irrelevant even when a claim from exoneration, liability is made also. No fault liability under Section 163A does not depend of negligence at all. It is a new different distinct absolute statutory liability imposed by the legislature. We are not embarking of a more detailed consideration. This judgment must be red in continuation of the judgment in Chacko(supra). If there be any doubt on this aspect, the ...prays of doubt according to us must be held to be reserved by the decision of the Full Bench of this Court in Malathi... It is true that in a subsequent decision in ...2009(1)K.L.T. 72 has expressed doubtss about the validity of th dictumm in Malathi..... We entertain no doubt whatsoever in our mind. the position has been explained in Chacko (supra). We are not MACA 1318/2011 12 persuaded to agre that it is necessary to wait for th decision n reference consequent to 2009(1)..... We are bound by the decision in Malathi... We agree completely with th dictum therein . In these circumstances, the argument built on the theory of negligence on the part of th claimant must necessarily fault to the ground. No other contentions raised at the Bar. We are are satisfied that this appeal deserves to be dismissed. IN the result, this appeal is dismissed inlimine.