United India Insurance Co. Ltd. v. C.K. Sukumaran and Augustine Joseph

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID TUESDAY, THE 15TH DAY OF JANUARY 2013/25TH POUSHA 1934 MACA.No. 2346 of 2010 ( ) ------------------------- (AGAINST THE AWARD IN OPMV.693/2005 DATED 28-11-2008 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THODUPUZHA.) ## APPELLANT(S)/2ND RESPONDENT: --------------------------------------- UNITED INDIA INSURANCE CO.LTD., ADIMALI. BY ADV. SRI.P.V.JYOTHI PRASAD RESPONDENT(S)/CLAIMANT & IST RESPONDENT: -------------------------------------------------------- ## 1. C.K.SUKUMARAN,S/O.KUTTAPPAN,AGED 50, CHEMPOTHINKAL,MANNAMKANDOM VILLAGE,ADIMALI. ## 2. AUGUSTINE JOSEPH,S/O.JOSEPH, UZHUPPILLIL HOUSE,NEYYASSERY PO,THODUPUZHA. BY ADV. SRI V.P.K.PANICKER -AMICUS CURIAE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: al/- ## **HARUN-UL-RASHID,J. ------------------------------------------------------M.A.C.A No. 2346 OF 2010 --------------------------------------------------------Dated this the 15[th] day of January 2013** ## **JUDGMENT** United India Insurance Company Ltd. is the appellant. The appeal is directed against the award dated 28.11.08 in O.P. (M.V) No. 693/05 on the file of the Motor Accidents Claims Tribunal, Thodupuzha. 2. The first respondent herein is the claimant. The case of the claimant is that while he was driving a car, on watching another vehicle proceeding from the opposite direction, he turned the vehicle to avoid a collision and thereby it went out of control and hit on a coconut tree which was standing by the side of the road. The claimant is the driver and is aged 46 years at the time of accident. He had sustained serious injuries. It is submitted that he was referred to Medical College Hospital for treatment. The treatment was continued there as inpatient for one month. It is alleged that the accident was beyond the control of the petitioner. The claim petition was filed under section 163A of the Motor Vehicles Act for claiming compensation for the permanent disability caused due to the ## M.A.C.A.No. 2346/2010 2 accident. 3. The claimant was examined as PW1. He testified before the court that on 6.12.02 while he was driving a car, a lorry came from the opposite direction and in order to avoid collision with it, he turned the car to the side of the road and thereby it hit on a coconut tree stand by the side of the road. The Tribunal decided issue No.1 in favour of the petitioner finding that since the claim petition filed under section 163 A of the Motor Vehicles Act, petitioner is not duty bound to prove negligence. The Tribunal considered the evidence on record including Ext.A11 disability certificate. Ext.A11 disability is a certificate issued by the Civil Surgeon and Ortho Surgeon, Taluk Head Quarters, Adimaly had assessed disability of the injured as 25%. The Tribunal accepted the disability to the extent of 15%. Under the head disability Rs.59,400/- was awarded as compensation. The Tribunal awarded a total compensation of Rs.73,500/- with 8% interest per annum. Learned counsel for the appellant placing reliance on the decision **Suresh v. Vasantha Shetty** reported in ( **2009(1) KLT 72)** contended that the claimant cannot invoke Section 163 A of the Motor Vehicles Act, if the accident has happened by his own negligence. It is M.A.C.A.No. 2346/2010 3 contended that the accident was happened due to the negligence on the part of the claimant and therefore, the claimant is not entitled to any compensation under Section 163 A of the Motor Vehicles Act. I have gone through the findings recorded by the Tribunal. In fact, the claimant did not adduce any evidence to prove that he was not negligent in driving the vehicle. Learned Judge found that the claim petition being filed under Section 163A of the Motor Vehicles Act, the claimant is not duty bound to prove negligence. The liability to pay compensation under S.163A is on the principle of no fault and, therefore, the question as to who is at fault is immaterial and foreign to an enquiry under S.163 A. Full Bench of this Court in the decision **National Insurance Co.Ltd. v. Malathi C.Salian** reported in **2003(3) KLT 460 (F.B)** held that S.163 A does not make any provision for apportionment of the liability. If the owner of the vehicle or the insurance company is permitted to prove contributory negligence or default or wrongful act on the part of the victim of claimants naturally the claimants will have to lead evidence which would defeat the object and purpose of S.163A. It is further held that once it is established that death or disablement occurred during the course of the user of the M.A.C.A.No. 2346/2010 4 vehicle and the vehicle is insured the insurance company or the owner , as the case may be shall be liable to pay the compensation. This is a statutory obligation. Claimant is therefore, entitled to get legitimate amount on the basis of the structured formula based on the no fault theory from the insurance company . 4. The claimant had sustained shortening due to internal rotation to lower limb and tenderness on left lower ribs, lacerated wound 8x3 cm below left knee and of 1 cm below right knee. Ext.A11 certificate certifies 25% disability. The court did not grant compensation as per Ext.A11 disability certificate. This court assessed disability and stated that 15% disability can be admitted in the facts and circumstance of the case. I do not find any reason to interfere with the award passed by the court below. There is no valid grounds are made out to interfere with the award passed by the court below. In the facts and circumstance of the case, the appeal is devoid of any merit and is dismissed. No order as to costs. ## **HARUN-UL-RASHID JUDGE** al/- M.A.C.A.No. 2346/2010 5 2003(3) KLT 460 (F.B) National Insurance Co.Ltd. v. Malathi C.Salian Motor Vehicles Act, 1988, S.163 A- Insurance Company cannot defeat a claim under S.163 A on the ground that the death or disablement had occurred due to the wrongful act, neglect or default on the part of the deceased or the disabled person. Insurance Company cannot defeat a claim under S.163 A on the ground that the death or disablement had occurred due to the wrongful act, neglect or default on the part of the deceased or the disabled person as the case may be. The liability to pay compensation under S.163A is on the principle of no fault and, therefore, the question as to who is at fault is immaterial and foreign to an enquiry under S.163 A. S.163 A does not make any provision for apportionment of the liability. If the owner of the ## M.A.C.A.No. 2346/2010 6 vehicle or the insurance company is permitted to prove contributory negligence or default or wrongful act on the part of the victim of claimants naturally the claimants will have to lead evidence which would defeat the object and purpose of S.163A. Legislature never wanted the claimant to plead or establish negligence on the part of the owner or the driver. Once it is established that death or disablement occurred during the course of the user of the vehicle and the vehicle is insured the insurance company or the owner , as the case may be shall be liable to pay the compensation. This is a statutory obligation. Claimant is therefore, entitled to get legitimate amount on the basis of the structured formula based on the no fault theory from the insurance company or the owner or owners of the vehicle on the plea that the liability is joint and several. **HARUN-UL-RASHID JUDGE** al/- M.A.C.A.No. 2346/2010 7