V.S. Chellappan Chettiyar & Others v. Sam Thomas & Reliance General Insurance

1 MACA.No.368 OF 2014 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943** ## **MACA.No.368 OF 2014** **AGAINST THE AWARD IN OPMV 243/2012 DATED 10-10-2013 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL , KOTTAYAM** ## **APPELLANT/S:** **1 V.S. CHELLAPPAN CHETTIYAR, AGED 56 YEARS S/O.LATE SASTAVU CHETTIYAR,VALIYAVEETTIL HOUSE,CHETHIPPUZHA VILLAGE,CHEERANCHIRA POST,CHANGANACHERRY 2 RAJAMMA CHETTIYAR,AGED 55 YEARS W/O.V.S CHELLAPPAN CHETTIYAR,VALIYAVEETTIL HOUSE,CHETHIPPUZHA VILLAGE,CHEERANCHIRA POST,CHANGANACHERRY 3 SREEKUTTY(MINOR) D/O.LATE UNNIKUTTAN AGED 11 YEARS 4 ANANDAKRISHNAN(MINOR),AGED 8 YEARS S/O.LATE UNNIKUTTAN,MINORS REPRESENTED BY GUARDIAN GRAND FATHER APPELLANT NO 1 V.S.CHELLAPPAN CHETTIYAR,VALIYAVEETTIL HOUSE,CHETHIPPUZHA VILLAGE,CHEERANCHIRA POST,CHANGANACHERRY** **BY ADVS. SRI.MATHEW JOHN (K) SHRI.DOMSON J.VATTAKUZHY** ## **RESPONDENT/S:** - **1 SAM THOMAS,S/O.THOMAS CHERIAN,KIZHAKKEKARA HOUSE,NALUNNAKKAL POST,CHANGANACHERRY 686 101** - **2 RELIANCE GENERAL INSURANCE, ANIL DHIRUBHAI AMBANI GROUP, MANORAMA,REPRESENTED BY BRANCH MANAGER 686 001** **R2 BY ADV. SRI.K.B.RAMANAND** **THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 7.4-2021, THE COURT ON 07-04-2021 DELIVERED THE FOLLOWING:** 2 MACA.No.368 OF 2014 ## **C.S.DIAS, J. ====================== MACA No.368 of 2014** ## **====================== Dated this the 7[th] day of April, 2021.** ## **JUDGMENT** The appellants were the petitioners in OP (MV) No.243/2012 on the file of the Additional Motor Accidents Claims Tribunal, Kottayam. The respondents in the appeal were the respondents in the claim petition. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioners had filed the claim petition under Sec.163A of the Motor Vehicles Act, 1988 claiming compensation on account of the death of one Unnikuttan (deceased), the son of the petitioners 1 and 2 and the father of the petitioners 3 and 4, 3. The facts in brief, for the determination of the appeal, are: On 22.11.2009, while the deceased was riding a motor cycle bearing registration No.KL-33/8818 3 MACA.No.368 OF 2014 through the Changanacherry – Vazhoor road, when he reached near the Madukkummoodu Junction, another motor cycle bearing registration No.KL-33/A 3594 (offending vehicle) came from the opposite direction and hit the motor cycle of the deceased. The deceased sustained serious injuries and was under prolonged treatment. He passed away on 9.5.2010. According to the petitioners, the accident occurred solely due to the rash and negligent riding of the offending vehicle by the first respondent, who was also the owner of the said vehicle. The second respondent was the insurer of the offending vehicle. The petitioners are the dependents of the deceased. The deceased was a Carpenter by profession and earning a monthly income of Rs.3,200/-. The respondents were jointly and severally liable to pay compensation to the petitioners, which they quantified at Rs.7,00,000/-. 4. The first respondent did not contest the proceedings and was set ex parte. 4 MACA.No.368 OF 2014 5. The second respondent filed a written statement, inter alia, contending that the claim petition was not maintainable in law. The offending vehicle was insured with the second respondent during the relevant period. However, the accident occurred due to the negligence on the part of the deceased. The Police after investigation have filed a charge-sheet before the jurisdictional Magistrate finding that the accident occurred on account of the negligence on the part of the deceased. Therefore, a tort feasor is not entitled to compensation. The second respondent is not liable to pay any amount as compensation and the claim petition may be dismissed. 6. Two witnesses were examined by the petitioners and Exts A1 to A12 were marked through them. The second respondent examined RW1, the Investigating Officer and marked Exts B1 and B2 through him. 7. The Tribunal, after analysing the pleadings and 5 MACA.No.368 OF 2014 materials on record, by the impugned award dismissed the claim petition holding that the petitioners are not entitled for compensation from the respondents on account of the negligence on the part of the deceased. 8. Aggrieved by the impugned award, the petitioners are in this appeal. 9. Heard Sri.Mathew John, the learned counsel appearing for the appellants and Sri.K.B.Ramanand, the learned counsel appearing for the second respondent. 10. The question that emanates for consideration in this appeal is whether the impugned award passed by the Tribunal is correct or not. 11. The Tribunal based on Ext A4 final report filed by the Police, read with the oral testimony of RW1, the Investigating Officer, non-suited the petitioners in view of the findings of the Police that the accident occurred due to the negligence of the deceased. 12. The Tribunal lost sight of the fact that the claim petition was filed under Sec.163A of the Motor 6 MACA.No.368 OF 2014 Vehicles Act, 1988. The Hon'ble Supreme Court in **United India Insurance Co.Ltd v. Sunil Kumar – [2017 (4) KLT 1093(SC)]** has categorically laid down the law that Secs 140 and 163A of the Act are based on the concept of 'no fault liability'. These provisions have been enacted as measure of social security. Therefore, the grant of compensation under Sec.163A on the basis of a structured formula is in the nature of final award and the adjudication thereunder is to be made without any requirement of any proof of negligence of the driver/owner of the vehicle (s) involved in the accident. The adjudication of claim under Sec.163A is required to be made without the requirement of any proof of negligence of the driver/owner of the vehicle (s) involved in the accident. 13. The specific case of the petitioners was that the accident occurred due to negligence on the part of the first respondent. It was for the said reason that the 7 MACA.No.368 OF 2014 petitioners had impleaded the first respondent and the second respondent, the owner and the insurer of the offending vehicle, as parties in the proceedings. 14. In light of **Sunil Kumar** (supra), the finding of the Tribunal regarding the negligence of the deceased based on Ext A4 final report and oral testimony of RW1 is erroneous and wrong. The Tribunal fell in error in considering negligence as an issue in a claim under Sec.163A of the Act. In the said circumstances, the finding of the Tribunal with regard to the negligence on the part of the deceased is set aside. 15. In view of the setting aside of the finding on negligence on the part of the deceased, then the next point is what is the reasonable and just compensation payable to the petitioners. 16. the accident occurred on Admittedly, 22.11.2009. Therefore, the petitioners are entitled for compensation, as on the date of accident, as provided under IInd Schedule of the Act. Admittedly, the 8 MACA.No.368 OF 2014 deceased was aged 30 years at the time of his death and was said to be earning an amount of Rs.38,400/- per year. 17. Going by the IInd Schedule of the Act, the petitioners are entitled to an amount of Rs.6,40,000/minus one-third towards the personal living expenses of the deceased. Thus, the petitioners are entitled to a consolidated amount of Rs.4,46,167/- of compensation as per Schedule-II of the Act. 18. In addition to the said amount, the petitioners are also entitled for an amount of Rs.2,000/- towards funeral expenses, Rs.2,500/- towards loss of estate and subject to a maximum of Rs.15,000/- as medical expenses. Although the petitioners have produced as Ext A9 series, they are only entitled to Rs.15,000/- under the said head of claim. Thus, the petitioners are entitled to a total amount of Rs.19,500/- under the aforesaid heads. 19. On an overall reconsideration of the pleadings 9 MACA.No.368 OF 2014 and materials on record, especially the law laid down by the Hon'ble Supreme Court in **Sunil Kumar** (supra), I am of the considered opinion that the appellants/petitioners are entitled to a consolidated amount of Rs.4,26,667/- as compensation and Rs.19,500/- towards the compensation under the aforementioned heads as prescribed under Schedule-II of the Act, as on 22.11.2009, thus totalling to an amount of Rs.4,46,167/-. In the result, the appeal is allowed. The impugned award is set aside. The appellants are ordered to be entitled for Rs.4,46,167/- with interest on the said amount @ 6% per annum from the date of petition till the date of realisation with proportionate costs. The second respondent/Insurance Company shall deposit the compensation amount with interest and costs before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The compensation amount shall be equally apportioned in 10 MACA.No.368 OF 2014 the ratio of 25% between appellants 1 and 2 and remaining amount of 75% shall be apportioned equally between the appellants 3 and 4. The Tribunal shall disburse the compensation amount ordered above to the appellants 1 to 3, in accordance with law. The proportionate share of the fourth appellant shall be put in his name in fixed deposit until he attains majority. **Sd/-** **C.S.DIAS** > Sks/7.4.2021 **JUDGE**