Kerala High Court
V.S. Chellappan Chettiyar vs Sam Thomas on 7 April, 2021
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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:
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MACA.No.368 OF 2014
C.S.DIAS, J.
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MACA No.368 of 2014
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Dated this the 7th 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
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.
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
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
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
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. Admittedly, the accident occurred on
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
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
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
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
