Varghese, S/O Ouseph v. Linto Augustine Edathipparamban House; Varghese, S/O Poulose Edasserry House; The New India Insurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN ``` ``` TUESDAY, THE 4[TH] DAY OF JULY 2023 / 13TH ASHADHA, 1945 ``` ## **`MACA NO. 2268 OF 2012`** ``` AGAINST THE JUDGMENT DATED 05.06.2012 IN OPMV 434/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA ``` ## **`APPELLANT/PETITIONER:`** ``` VARGHESE, S/O. OUSEPH MATTATHY HOUSE, KATHIKUDAM DESOM & P. O. KALLUR VADAKKUMMURI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, UNSOUND PERSON REPRESENTED BY NEXT FRIEND AND GUARDIAN HIS WIFE LISSY VARGHESE. ``` ``` BY ADVS. SRI. P.V.BABY SRI. A.N.SANTHOSH ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 LINTO AUGUSTINE EDATHIPARAMBAN HOUSE, CHERUVALOOR P. O. PIN - 680 321.`** - **`2 VARGHESE, S/O. POULOSE EDASSERRY HOUSE, CHIRANGARA, KORATTY EAST P.O. THRISSUR DISTRICT - 680 308.`** - **`3 THE NEW INDIA INSURANCE CO. LTD., DO VI, THRISSUR, C/O. BAJAJ AUTO FINANCE THRISSUR - 680 001.`** ``` BY ADVS. SRI. PMM.NAJEEB KHAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A No.2268 OF 2012 ``` ``` 2 ``` ## **JUDGMENT** This is an appeal preferred by the petitioner in O.P(M.V) No.434 of 2005 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, whereby the petition filed under Section 163 (A) of the Motor Vehicles Act, 1988 (for short, ‘the Act’) was dismissed by the Tribunal. The parties are referred to as per their status in the claim petition. 2. According to the petitioner, while he was riding a motor cycle on 06.11.2004, it hit against another motor cycle ridden by the 2[nd] respondent, owned by the 1[st] respondent and insured with the 3[rd] respondent and he sustained serious injuries. He filed the petition for compensation under Section 163(A) of the Motor Vehicles Act. 3. Respondents 1 and 2 remained ex-parte before the Tribunal. The 3[rd] respondent Insurance ``` M.A.C.A No.2268 OF 2012 ``` ``` 3 ``` Company filed a written statement contending that the petition is not maintainable. The insurance coverage of the offending vehicle was admitted. It was also contended that the petitioner was negligent in riding the vehicle and caused the accident. 4. The Tribunal relied on Ext.B1 scene Mahazar and police charge sheet to hold that the petitioner was negligent in riding. Relying on the decision in **National Insurance Co. v. Sinitha** [2011 (4) KLT 821], the Tribunal came to the conclusion that the petition filed under Section 163 (A) of the Act was not maintainable and accordingly, it was dismissed. Challenging the dismissal of the claim petition, the petitioner has come up in appeal. 5. The learned counsel for the petitioner relied on the decision in **United India Insurance Co. Ltd. v. Sunil Kumar and Another** [2019 (12) SCC 398] wherein, the Supreme Court held that claim petition ``` M.A.C.A No.2268 OF 2012 ``` ``` 4 ``` being a proceeding under Section 163 (A) of the Act it is not open for the insurer to raise any defence of negligence on the part of the victim. The said judgment was rendered on reference by a two Judge Bench of the Apex Court doubting the reasoning in **Sinitha’s case** (supra). In paragraphs 8 and 9, the Court held:- “8. From the above discussion, it is clear that grant of compensation under S.163-A of the Act on the basis of the structured formula is in the nature of a final award and the adjudication thereunder is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle(s) involved in the accident. This is made explicit by S.163A(2). Though the aforesaid section of the Act does not specifically exclude a possible defence of the Insurer based on the negligence of the claimant as contemplated by S.140(4), to permit such defence to be introduced by the Insurer and/or to 10 understand the provisions of S.163A of the Act to be contemplating any such situation would go contrary to the very legislative object behind introduction of S.163A of the Act, namely, final compensation within a limited time frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability was taking an unduly long time. In fact, to understand S.163A of the Act to permit the Insurer to raise the defence of negligence would be to bring a proceeding under S.163A of the Act at par with the proceeding under S.166 of the Act which would not only be ``` M.A.C.A No.2268 OF 2012 ``` ``` 5 ``` self - contradictory but also defeat the very legislative intention. 9. For the aforesaid reasons, we answer the question arising by holding that in a proceeding under S.163A of the Act it is not open for the Insurer to raise any defence of negligence on the part of the victim.” In the light of the said judgment, the finding of the Tribunal that since the petitioner/victim himself was negligent, the petition filed under Section 163 (A) of the Act is not maintainable, cannot be sustained. 6. The learned counsel for the Insurance Company contended that since the Tribunal has not gone into other aspects regarding the claim, the matter shall be remanded to the Tribunal. 7. Since the accident is of the year 2004 and the income of the petitioner is not disputed and the disability certificate issued by the Medical Board is available on record, I am of the view that, the matter need not be remanded to the Tribunal and the compensation due to the petitioner can be arrived at ``` M.A.C.A No.2268 OF 2012 ``` ``` 6 ``` on the basis of the structured formula in the Second Schedule of the Act. 8. The petitioner claimed an amount of Rs.3,300/- as monthly income, which is not disputed. As regards the percentage of permanent disability, the Special Medical Board in Ext.X1 report has found that the total permanent neurological disability of the petitioner is 75%. The Neuro Surgeon, who was a signatory to Ext.X1 was examined as PW2. He has deposed that the petitioner has 100% loss of earning capacity. As per Clause 4 (i) of the Schedule, for pain and suffering arising out of grievous injuries, the claimant will be entitled for Rs.5,000/as compensation. Therefore, I am inclined to award an amount of **Rs.5,000/-** towards pain and suffering. 9. Ext.A11 series of bills would show that the petitioner has incurred more than Rs.1,00,000/towards medical expenses. As per Clause 4 (ii) of the ``` M.A.C.A No.2268 OF 2012 ``` ``` 7 ``` Schedule, the petitioner is entitled for an amount of **Rs.15,000/-** towards medical expenses. 10. With regard to disability compensation, as per Schedule I under the Workmen Compensation Act, 1923, read with note thereto, I find that, the percentage of loss of earning capacity of the petitioner will come to 100%. Since the petitioner was aged 44 years at the time of the accident, the multiplier to be applied is ‘14’ ( **Sarla Verma & Ors. V. Delhi Transport Corporation & Anr.** [2010 (2) KLT 802 (SC)]). Accordingly, I fix the compensation for disability/loss of income as **Rs.5,54,400/-** (3,300x12x14x100%). 11. Accordingly, the petitioner will be entitled for an amount of **Rs.5,74,400/-** (5,54,400 + 5,000 + 15,000) as compensation for the injuries sustained in the accident. The Insurance Company shall deposit the said amount before the Tribunal with 6% interest ``` M.A.C.A No.2268 OF 2012 ``` ``` 8 ``` per annum from the date of petition till date of deposit, within a period of two months from the date of receipt of a copy of this judgment. The appeal is allowed as above. **Sd/-** ``` MURALI PURUSHOTHAMAN JUDGE ``` SPR