Kerala High Court
Laiju vs Sivaraman.S.S on 8 April, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943
MACA.No.655 OF 2013
AGAINST THE AWARD IN OP(MV) 1323/2004 DATED 29-11-2012 ON THE FILE
OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR
APPELLANT/PETITIONER:
LAIJU,
AGED 36 YEARS,
S/O.BALAN, MALVEETTIL HOUSE, S.M.LANE, INDEPENDENCE
NAGAR, P.O.CHETTUPUZHA, THRISSUR DISTRICT.
BY ADV. SRI.P.V.CHANDRA MOHAN
RESPONDENTS/RESPONDENTS:
1 SIVARAMAN.S.S.,
S/O.SANKARAN, SANKARATHADATHIL HOUSE, KOVIPARAMBU,
MUNDOOR.P.O., THRISSUR DISTRICT. 680 541.
2 SHIJU.M.B.,
S/O.BALAN.M.K., MELVEETTIL HOUSE, S.M.LANE, 2ND
STONE, PULLAZHI.P.O., THRISSUR DISTRICT. 680 012.
3 UNITED INDIA INSURANCE CO. LTD.,
PARK HOUSE, ROUND NORTH, THRISSUR. 680 001.
4 K.L.FRANCIS,
S/O.LAZER, KOLLANUR HOUSE, VELUTHOOR.P.O., THRISSUR
DISTRICT. 680 012.
5 UNITED INDIA INSURANCE CO. LTD.,
THRISSUR. 680 001.
R1, R3 BY ADV. SRI.P.JACOB MATHEW
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
07-04-2021, THE COURT ON 08-04-2021 DELIVERED THE FOLLOWING:
MACA.No.655 OF 2013 2
JUDGMENT
The appellant was the petitioner in OP(MV) No.1323
of 2004 on the file of the Motor Accidents Claims
Tribunal, Thrissur. The respondents in the appeal were
the respondents in the claim petition.
2. The facts in brief, relevant for the
determination of the appeal, are: on 1.2.2004 while the
appellant was travelling as a pillion rider on the scooter
bearing Reg.No.KL-8/G 1421, ridden by the 2nd
respondent, through Thrissur-Kanjany road, when the
vehicle reached Ayyanthole Civil Lane Junction, a scooter
bearing Reg.No.KL-8/G-7912 (offending vehicle) which
attempted to overtake the scooter on which the appellant
was travelling, hit on the rear portion of the scooter of
the appellant. Due to the impact, the appellant fell down
on the road and sustained serious injuries. He was
treated as an inpatient at the Medical College Hospital,
Thrissur. The accident occurred solely due to the rash
and negligent driving of the offending vehicle by the 4 th
respondent. The scooter on which the appellant was
travelling was insured with the 3rd respondent and was
owned by the 1st respondent. Whereas, the offending
vehicle was owned and ridden by the 4th respondent and
insured with the 5th respondent. The appellant initially
filed a claim petition under Section 166 of the Motor
Vehicles Act 1988, but later amended the claim petition
to one under Section 163A of the Act. The appellant
contended that he was aged 27 years of age, and was a
jewelry worker and earning a monthly income of
Rs.3,200/-. Hence, the respondents 4 and 5 were jointly
and severally liable to pay compensation to the
appellant, which he quantified at Rs.1,16,000/-.
3. The respondents 3 and 5 filed separate written
statements. Even though notice was served on the other
respondents, they did not contest the proceedings and
were set ex parte.
4. The 3rd respondent filed a written statement,
inter alia, contending that the scooter on which the
appellant was riding as a pillion was owned by the 1 st
respondent, but was covered only by an 'Act Policy'.
Therefore, the appellant was not covered by the policy.
Therefore, the 3rd respondent was not liable to pay any
amount as compensation.
5. The 5th respondent filed a written statement
admitting that the offending vehicle had a valid
insurance policy issued by the 5th respondent, but it was
only an 'Act Policy'. Moreover, as the Police charge
sheetted the 2nd respondent for causing the accident,
the 4th respondent cannot be held negligent for causing
the accident. The appellant himself is a joint tort feaser,
hence, he was not entitled for compensation.
6. The appellant examined the doctor who treated
him and marked Exts.A1 to A9 in evidence. The
insurance companies, namely; the respondents 3 and 5
produced and marked Exts.B1 and B2 insurance policies
of both the vehicles.
7. The Tribunal, after analysing the pleadings and
materials on record, allowed the claim petition in part
by permitting the appellant to realise an amount of
Rs.1,02,250/- from the respondents 1 and 2. The
respondents 3 and 5 insurance companies were
exonerated of their liability.
8. Aggrieved by the impugned award, exonerating
the insurance companies of their liability and dissatisfied
with the quantum of compensation awarded by the
Tribunal, the petitioner is in appeal.
9. Heard Sri.P.V.Chandra Mohan, the learned
counsel appearing for the appellant/petitioner and
Sri.P.Jacob Mathew, the learned counsel appearing for
the respondents 3 and 5/Insurance Companies.
10. The questions that emanate for consideration in
the appeal are (i) whether the impugned award passed
by the Tribunal is correct or not (ii) is the appellant
entitled to enhancement of compensation.
11. The Tribunal by the impugned award found
that there was no negligence on the part of the 4 th
respondent, the driver of the offending vehicle based on
Ext.P2 charge sheet filed by the Police. As per Ext.A2, it
was the 2nd respondent who was negligent in causing the
accident. On the said basis, the Tribunal exonerated the
respondents 3 to 5 and directed the respondents 1 and 2
to pay the compensation amount to the appellant.
12. The Tribunal lost sight of the fact that the claim
petition was filed under Section 163A of the Motor
Vehicles Act, 1988.
13. The Hon'ble Supreme Court in United India
Insurance Company Ltd., v. Sunilkumar (2017 4
KLT 1093 SC) has categorically held that Sections 140
and 163A of the Act are based on the concept of 'no fault
liable'. These provisions have been enacted as a measure
of social security. Therefore, the grant of compensation
under Section 163A, on the basis of the structured
formula, is in the nature of final award and adjudication
with no requirement of any proof of negligence on the
driver/owner of the vehicle(s) involved in the accident.
14. In Khenyei v. New India Assurance Co. Ltd.
and Others (2015 (9) SCC 273) the Hon'ble Supreme
Court has held that in the case of composite negligence,
the claimant is entitled to sue both or anyone of the joint
tort feasors and to recover the entire compensation as
liability from the joint feasors either jointly or severally.
15. In light of Sunilkumar and Khenyei (supra), I
am of the considered opinion that the findings of the
Tribunal that there was no negligence on the part of the
4th respondent and therefore, the 5th respondent is not
liable to pay any amount as compensation because the
accident was caused due to the negligence of the 1 st
respondent is erroneous and against the settled law.
16. It is reiterated that in view of Sunilkumar
(supra), the Tribunal was not supposed to have probed
into the factum of negligence. Moreover, both the 3 rd
respondent and the 5th respondent are one and the same
insurance company- United India Insurance Company
Ltd.
17. In view of the law laid down in the aforecited
decisions and the facts and circumstances of the case, I
am of the definite opinion that the impugned award is
wrong. Hence, I set aside the finding in the award that
the 5th respondent is not liable to pay compensation as
there is no negligence on the part of the 4th respondent.
18. As a consequence of the setting aside of the
above finding, the next question that arises for
consideration is what is the reasonable and just
compensation payable by the 5th respondent to the
appellant.
19. The appellant was aged 27 years at the time of
accident. His notional income was fixed at Rs.8,000/-.
The accident took place on 1.2.2004. Therefore, the II nd
Schedule of the Act, as on 1.2.2004, is applicable to the
facts of the case. In fact, the Tribunal has in the schedule
to the impugned award calculated the compensation
payable by the respondents 1 and 2 to the appellant.
20. Going by the IInd Schedule of the Act, it is seen
that the appellant is not entitled for compensation under
the heads-'bystander expenses, transport expenses and
loss of amenities'. Similarly, the appellant can only be
given maximum compensation of Rs.5,000/- under the
head 'pain and suffering'.
21. With respect to the other heads of claim,
namely; loss of earnings, medical expenses, loss due to
disability, I find that the Tribunal has rightly awarded
compensation as per the IInd Schedule of the Act.
22. On an overall reappreciation of the pleadings
and materials on record, I hold that the appellant is
entitled for a composite compensation of Rs.88,638/-
instead of 1,02,250/- as modified and recalculated above
and given in the table below for easy reference.
Head of claim Amount Amounts
awarded by modified and
the Tribunal recalculated
by this Court
Loss of earnings 9,000/- 9,000/-
Medical Expenses 1,198/- 1,198/-
Bystander 6,00/- Nil
expenses
Transport 3,000/- Nil
Expenses
Pain and 8,000/- 5,000/-
sufferings
Loss due to 73,440/- 73,440/-
disability
Loss of amenities 7,000/- Nil
Total 1,02,238/- 88,368/-
In the result, the appeal is allowed in part, by fixing
the compensation at Rs.88,638/- with interest at the rate
of Rs.8% per annum from the date of petition till the date
of realisation and proportionate costs. The 5 th
respondent shall deposit the above compensation
amount with interest and proportionate costs before the
Tribunal within a period of two months from the date of
receipt of a certified copy of this judgment. The Tribunal
shall release the compensation amount to the appellant
only after ascertaining whether any amount has been
withdrawn by the appellant on the deposit made by
respondents 1 and 2. If the respondents 1 and 2 have
deposited any amount, the said amount shall be refunded
to them, and the appellant be paid only the balance
compensation, if any, as awarded in this judgment.
sd/-
C.S.DIAS
JUDGE
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