ZEENATH SALAM v. NAJEEB & THE NEW INDIA ASSURANCE COMPANY LIMITED

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.JAYACHANDRAN** **THURSDAY, THE 13[TH] DAY OF OCTOBER 2022/ 21ST ASWINA, 1944 MACA NO. 764 OF 2013** **OP(MV) 384/2010 ON THE FILE OF THE ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DTD.9.7.2012 APPELLANT/PETITIONER:** ZEENATH SALAM W/O.P.K.SALAM, SAJAS MANZIL, VADUTHALA JETTY P.O., AROORKUTTY, CHERTHALA TALUK. BY ADVS. SRI.ANIL S.RAJ SMT.ANILA PETER SRI.G.ARUN GOPAN SMT.C.PRABITHA SMT.K.N.RAJANI SRI.J.VIVEK GEORGE ## **RESPONDENTS/RESPONDENTS:** 1 NAJEEB 48/863, KATTIPARAMBIL, KOCHI CORPORATION, KOCHI 682 006. 2 THE NEW INDIA ASSURANCE COMPANY LIMITED, COCHIN DIVISIONAL OFFICE, KOTTAKKAL ARYA VAIDYASALA BUILDING, M.G.ROAD, COCHIN 682 016. BY ADVS. SRI MATHEW JOHN - AMICUS CURIAE LAL K.JOSEPH KKM.SHERIF THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M..A.C.A.No.764 of 2013 ..2.. ## **[CR]** ## **C.JAYACHANDRAN, J.** ------------------------------------M.A.C.A.No.764 of 2013 ---------------------------------------- Dated this the 13[th] day of October, 2022 ## **JUDGMENT** In a claim under Section 163A of the Motor Vehicles Act, whether the absence of the owner and the insurer of the offending vehicle is fatal is the important question raised in this appeal. ## 2. The essential facts :- Autorickshaw bearing No.KL 07 AC 2202 (hereinafter referred to as 'auto A', for short), in which the petitioner/injured was travelling collided with another autorickshaw bearing No.KL 7Z 1162 (hereinafter referred to as 'auto B', for short), with the result, the petitioner sustained serious injuries. The Tribunal, in the impugned order, found on the strength of Ext.B4 final report, that the accident occurred on account of the negligence of the driver of auto B, the offending vehicle and in the absence of the owner and the M..A.C.A.No.764 of 2013 **==> picture [22 x 8] intentionally omitted <==** insurer of that vehicle in the party array, liability cannot be mulcted on the owner and insurer of auto A, in which the injured was travelling. As per the judgment of this Court in **New India Assurance Co. Ltd. v. Pazhaniammal** [2011 (3) KLT 648], the findings recorded in the charge sheet can be taken as prima facie evidence of negligence as against the accused therein. 3. In view of the importance of the legal question involved, Sri.Mathew John was appointed as the Amicus Curiae, who invited the attention of this Court through a three Judges Bench decision of the Hon'ble Supreme Court in **United India Insurance Co.Ltd v. Sunil Kumar and another** [2017(4) KLT 1093 (SC)]. In the context of interpretation of the expression 'arising out of', learned Amicus Curaie relied upon a Bench decision of this Court in **Babu v. Rameshan** [1995 (2) KLT 300]. 4. Learned counsel for the appellant relied upon the judgment of the Hon'ble Supreme Court in **Ramkhiladi and** ## **another v. United India Insurance Company and another** M..A.C.A.No.764 of 2013 **==> picture [22 x 8] intentionally omitted <==** [2020 (2) SCC 550]. The learned counsel for the petitioner/appellant argued that a claim under Section 163A of the Act is liable to be recognized upon satisfaction of the following factual parameters:- - (i) that there was an accident; - (ii) accident arose out of the use of a vehicle; and - (iii) the victim suffered death or permanent disablement on account of the accident 5. Unlike in the case of a claim under Section 166 of the Act, the aspect/concept of negligence is completely alien insofar as a claim under Section 163A of the Act is concerned. According to the learned counsel, the Tribunal, therefore, misdirected itself in dismissing the claim petition on the basis of negligence found, as also, for the absence of the owner and insurer of the offending vehicle, the driver of which was found to be negligent. 6. Per contra, the learned counsel for the respondent/insurance company submitted that it would work out complete injustice, if compensation is directed to be paid M..A.C.A.No.764 of 2013 ..5.. by the owner/insurer of auto A, in which the injured was travelling, when clear evidence points to the fact that the accident occurred on account of the negligence of the driver of auto B, the offending vehicle. Learned counsel would suggest that the matter may be remanded, so as to enable the appellant/petitioner to implead the driver, owner and the insurer of the offending vehicle, so that the interests of the rival parties can be appropriately balanced. 7. Before addressing the legal issues involved, this Court may straight away record that the suggestion for a remand is quite unacceptable. The accident was of the year 2009, in respect of which subject matter, a remand in the year 2022 would not, for sure, be in the fitness of things. Upon resolving the legal imbroglio, if this Court finds that compensation can be awarded as against the stakeholders of auto A, negligence being a wholly irrelevant factor, then equities can be balanced by permitting the insurer of auto A to proceed against the owner/insurer of auto B to recover the amount paid as compensation. M..A.C.A.No.764 of 2013 **==> picture [22 x 8] intentionally omitted <==** 8. With this prelude, this Court will now address the legal issues involved. The precise issue fell for consideration of the Hon'ble Supreme Court in **Ramkhiladi** (supra), wherein one Chotelal @ Shivaram died in an accident while he was travelling in a motorcycle, which collided with another motor vehicle. As is available in the given facts, in **Ramkhiladi** (supra) also, negligence was found against the offending motor vehicle, which collided with the motor vehicle in which Chotelal was travelling. Again, in that case, the owner and the insurer of the motor vehicle in which Chotelal was travelling alone was made party in the claim petition. The Tribunal found that the claim petition is liable to be allowed against the insurer of the motorcycle in which Chotelal was travelling, the claim being one under Section 163A of the Act. However, on appeal by the insurance company, the High Court reversed the award and dismissed the claim petition on the ground that the accident occurred on account of the rash and negligent driving of the driver of the offending vehicle, against whom there was no claim. In the civil appeal arising therefrom, the Hon'ble M..A.C.A.No.764 of 2013 ..7.. ## Supreme Court posed the following question:- _“5._ ….. _The short question which is posed for consideration of this Court is whether, in the facts and circumstances of the case and in a case where the driver, owner and the insurance company of another vehicle involved in an accident and whose driver was negligent are not joined as parties to the claim petition, meaning thereby that no claim petition is filed against them and the claim petition is filed only against the owner and the insurance company of another vehicle which was driven by the deceased himself and the deceased being in the shoes of the owner of the vehicle driven by himself, whether the insurance company of the vehicle driven by the deceased himself would be liable to pay the compensation under Section 163A of the Act?; Whether the deceased not being a third party to the vehicle No. RJ 02 SA 7811 being in the shoes of the owner can maintain the claim under Section 163A of the Act from the owner of the said vehicle?”_ Though, the precise question as arising in the case at hand is M..A.C.A.No.764 of 2013 ..8.. raised as above, the same is not seen answered in **Ramkhiladi** (supra), since the Hon'ble Supreme Court proceeded and finalised the matter on the basis of a factual premise that the deceased was not using the motorcycle as an employee of the owner of the vehicle, but as a permissive user/borrower, thereby stepping into the shoes of the owner himself. The Hon'ble Supreme Court found that going by the contract of insurance, the liability of the insurance company would be qua third party only, which the deceased was not. In short, the question whether the absence of the stakeholders of the offending vehicle not being in the party array is fatal or not was not considered. 9. The next decision to be noted is by a three Judges Bench of the Hon'ble Supreme Court in **United India Insurance Company Ltd. v. Sunil Kumar & another** [2017 (4) KLT 1093 (SC)]. There, the question which fell for consideration was, whether it was open for the insurer to raise the defence of negligence in a claim under Section 163A of the Act. The question was earlier answered in the affirmative by a two M..A.C.A.No.764 of 2013 ..9.. Judges Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Sinitha and others** [2012 (2) SCC 356], the correctness of which was doubted by a coordinate Bench of the Supreme Court, which referred the matter for an authoritative pronouncement. The three Judges Bench of the Hon'ble Supreme Court relied upon the judgment in **Oriental Insurance Company Ltd. v. Hansraj Bai V.Kodala and others** [2001 (5) SCC 175] to hold that an adjudication under Section 163A of the Act is to be made without any requirement of proof of negligence of the driver/owner of the vehicles involved in the accident. It was held that any interpretation otherwise would run contrary to the legislative object behind introduction of Section 163A of the Act. 10. **Sunil Kumar** (supra) was followed by another three Judges Bench of the Hon'ble Supreme Court in **Sivaji and another v. Divisional Manager** [2018 (4) KHC 506 (SC)]. However, the factual premise arising in that case was slightly different. There, the driver of the vehicle, whose negligence M..A.C.A.No.764 of 2013 ..10.. caused the accident, was not compensated, treating him as the tortfeasor. The judgment of the High Court, reversing the award of the Tribunal, was set aside by the Hon'ble Supreme Court, relying upon **Sunil Kumar** (supra), holding that the insurer cannot set up the defence of negligence on the part of the victim in a claim under Section 163A of the Act. 11. In **United India Insurance Company Ltd. v. Ratheesh** [2011 (4) KLT 927] a Division Bench of this Court posed the following question for consideration:- _“When plurality of vehicles are involved in an accident does the victim/claimant have the unfettered option/right to claim compensation under Sec.163A of the Motor Vehicles Act against either or both the owners/insurers of the vehicles?”_ ## 12. The discussion contained in paragraph no.26 of the judgment is quite relevant and extracted hereinbelow: _“26. Will not this lead to the innocent owners/insurers being compelled to pay compensation while the guilty/offending owners/insurers go scot free? Where is justice in_ M..A.C.A.No.764 of 2013 ..11.. _such an event? Will not the law offend the primary constitutional mandate under Art.21 that any law has to be fair, just and reasonable? A flurry of questions are thrown at the Court. We are in the least impressed by these queries. In the scheme of Sec.163A there is no place for words like 'innocent' and 'offending'. Even the use of the terminology betrays a want of commitment to the laudable goals of the statutory provisions under Sec.163A and its very scheme. The statutory concern is only that the victims must be compensated. To ensure that, the option must be and has been conceded to the claimant. He is the best Judge to decide what would ensure payment to him. He can and has hence been conceded the option.”_ The Division Bench ultimately concluded in paragraph no.30 that under Section 163A of the Act, the claimant is not obliged to claim against both or all the insurers/owners. It is open for the claimant to choose the person from whom he would stake and recover the claim. It was further held in paragraph no.34 that the Tribunal should not embark on an attempt to identify the responsibility for the accident as between the owners/insurers of the vehicles involved in a claim under M..A.C.A.No.764 of 2013 **==> picture [28 x 8] intentionally omitted <==** Section 163A of the Act. 13. From a scan of the above judgments, it could be seen that the precise issue fell for consideration only in **Ramkhiladi** (supra), but the same was not answered, since the civil appeal was decided on other grounds. However, in **Ratheesh** (supra) a Division Bench of this Court unequivocally held in the affirmative as regards the claimant's choice to seek compensation against the person/insurer, since he is not obligated to claim against both the insurers/owners. 14. As has been rightly pointed by the learned counsel for the appellant, the three ingredients to attract a claim under Section 163A of the Act are; (i) there should be an accident; (ii) such accident should arise out of the use of a motor vehicle; and (iii) death or permanent disablement should have resulted due to the accident. Once it is settled by the authoritative pronouncements referred above that negligence is not a defence open to the insurer, the expression 'owner of the motor vehicle or the authorised insurer' cannot be interpreted to mean the owner and insurer of the vehicle which M..A.C.A.No.764 of 2013 **==> picture [28 x 8] intentionally omitted <==** is at fault. That apart, in the instant case, there cannot be any doubt that the appellant/petitioner was a third party, who hired auto A for a trip. In the light of the above legal and factual position, it cannot be held that in the absence of the owner/insurer of the offending vehicle in the party array is fatal. In other words, it cannot be recognized as an absolute proposition of law that a third party passenger in a hired vehicle can only claim compensation from the owner/insurer of the offending vehicle. The purpose behind the introduction of Section 163A of the Act negates such an interpretation. This Court, therefore, holds that the stand taken by the Tribunal cannot be countenanced and the award dismissing the claim is liable to be interfered with. 15. In view of the fact that the present claim is one under Section 163A of the Act, where compensation is to be granted based on a structured formula, this Court is of the view that a remand is not necessary stricto sensu for the purpose of deciding the qantum of compensation. M..A.C.A.No.764 of 2013 **==> picture [28 x 8] intentionally omitted <==** 16. Coming to the facts, it is not disputed that the ring finger of the appellant/petitioner was amputated as a result of the accident. Going by Schedule-I to the Workmen's Compensation Act, serial no.35, 7% is the disability stipulated in case of amputation of whole of the ring finger, in respect of which question, there is no quarrel before this Court. The appellant/petitioner was aged 37 years at the time of the accident. Therefore, the multiplier to be applied, going by the Second Schedule of the M.V. Act, is 16. She was a house wife at the time of the accident and, therefore, a non earning person, for whom, going by the Second Schedule to the M.V Act, the notional income fixed is Rs.15,000/- per annum. Therefore, the compensation amount payable on account of disability will be Rs.16,800/- (15000x16x7/100). 17. The total amount covered by the medical bills produced is Rs.5,767/-, which is liable to be allowed. Inasmuch as there is amputation of ring finger, which injury is liable to be taken as a serious one, the compensation under the head 'pain and suffering' is granted at the rate of Rs.5,000/-. Loss of income M..A.C.A.No.764 of 2013 **==> picture [28 x 8] intentionally omitted <==** is also liable to be reckoned in terms of clause 5 of the Second Schedule for a maximum period of 52 weeks. Inasmuch as the ring finger has been amputated, the maximum period of 52 weeks is liable to be reckoned and compensation under the head 'loss of income' is fixed at Rs.15,000/ as stipulated in the Second Schedule. 18. In view of the above, the appeal is allowed and the appellant/petitioner is awarded a total compensation of Rs.42,567/- (Rupees forty two thousand five hundred and sixty seven only) as shown below: |Sl.No.|Head of claim|Compensation amount<br>granted (Rs.)| |---|---|---| |1|Loss of Income|15000| |2|Medical Expenses|5767| |3|Pain and suffering|5000| |4|Disability (15000x16x7/100)|16800| ||**Total**|**42567**| Since the accident is of the year 2009, the Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate of 8% per annum from the date of accident, till date of actual payment. Since there was a delay of 127 days in M..A.C.A.No.764 of 2013 ..16.. filing the appeal, the interest on the compensation amount shall not run for the said period, as directed in order dated 25.2.2015 in C.M.Appln.No.987/2013. The claimant shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the compensation amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount as directed, interest on compensation amount shall run at the rate of 9% from the date of petition. 19. Learned counsel for the second respondent insurance company contended that their option to proceed against the insurance company of the offending vehicle may be left open, since it is a permissible course as per the judgment of the Hon'ble Supreme Court in **Khenyei v. New India Assurance** M..A.C.A.No.764 of 2013 **==> picture [28 x 8] intentionally omitted <==** **Company Ltd.** [2015 (9) SCC 273]. Vide observation no.(iv) in the concluding paragraph, it is held that the 2[nd] respondent will be at liberty to sue the owner/insurer of the offending vehicle to recover the compensation in accordance with law. Therefore, the direction in the impugned award enabling recovery of compensation paid by the second respondent/insurance company will remain intact. I place on record my sincere appreciation to Sri.Mathew John, learned Amicus, who assisted this Court effectively in resolving the legal issue involved in this matter. Appreciation is also due to Adv.Suresh (representing Adv.Lal K.Joseph), who appeared on behalf of the respondent and Adv.Simi.S.Ali (representing Adv.Anil S.Raj), who appeared on behalf of the appellant. Sd/- ## **C.JAYACHANDRAN, JUDGE** skj