National Insurance Company Ltd vs Suseelan
2021 Latest Caselaw 24015 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
        THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
 SATURDAY, THE 18TH DAY OF DECEMBER 2021/27TH AGRAHAYANA,
                           1943
                  MACA NO. 2221 OF 2012
AGAINST THE AWARD DT.24.5.2012 IN OPMV 3623/2003 OF MOTOR
           ACCIDENT CLAIMS TRIBUNAL , THRISSUR
APPELLANT/3RD RESPONDENT IN O.P(MV):

         NATIONAL INSURANCE COMPANY LTD.
         AMBIKA ARCADE, M.G.ROAD, THRISSUR, REPRESENTED BY
         ITS MANAGER, REGIONAL OFFICE, M.G.ROAD,
         ERNAKULAM.
         BY ADV SRI.LAL GEORGE


RESPONDENTS/PETITIONER AND RESPONDENTS 1 & 2 IN O.P(MV):

    1    SUSEELAN
         S/O SUKUMARAN, VAZHAPPILLY HOUSE, SOUTH ANCHERY,
         P.O.ANCHERY, THRISSUR DISTRICT.680006.
    2    THE SECRETARY
         ALL KERALA DIAMOND ARTISANS ASSOCIATIONS, MUNDAR,
         THRISSUR.680001.
    3    E.M.RAMAKRISHNAN
         S/O SANKARAN, ELAMTHURUTHY HOUSE, P.O.
         PERAMANGALAM, PERINGANNUR, THRISSUR 680 581.
         BY ADVS.
         SRI.P.V.CHANDRA MOHAN FOR R1
         SRI.N.M.MADHU FOR R2
         ADV. M.C.ASHI FOR R2

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 09.12.2021 ALONG WITH C.O.40/2014, THE COURT ON
18.12.2021 DELIVERED THE FOLLOWING:
 M.A.C.A No.2221/2012 &
C.O.No.40 of 2014                    2




               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
             THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
SATURDAY, THE 18TH DAY OF DECEMBER 2021 / 27TH AGRAHAYANA,
                                  1943
                          CO NO. 40 OF 2014
         AGAINST MACA 2221/2012 OF HIGH COURT OF KERALA
CROSS OBJECTOR/1ST RESPONDENT:

               SUSEELAN
               S/O SUKUMARAN, VAZHAPPILLY HOUSE, SOUTH ANCHERY,
               P.O.ANCHERY, THRISSUR DISTRICT.680006
               BY ADV SRI.P.V.CHANDRA MOHAN


RESPONDENT/APPELLANT:

               NATIONAL INSURANCE CO.LTD.
               AMBIKA ARCADE, M.G.ROAD, THRISSUR, REPRESENTED
               BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD,
               ERNAKULAM.
               BY ADV SRI.LAL GEORGE


        THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY
HEARD     ON    09.12.2021   ALONG   WITH   MACA.NO.2221/2012,   THE
COURT ON 18.12.2021,         DELIVERED THE FOLLOWING:
 M.A.C.A No.2221/2012 &
C.O.No.40 of 2014                  3




                                                    "C.R"



                       A. BADHARUDEEN, J.
              ================================
                       M.A.C.A No.2221 of 2012
                                   and
                           C.O.No.40 of 2014
              ================================
               Dated this the 18th day of December, 2021


                          JUDGMENT

M.A.C.A.No.2221 of 2012 is an appeal at the instance of

the 3rd respondent insurance company in O.P(MV).No.3623 of

2003 on the file of the Motor Accidents Claims Tribunal, Thrissur

challenging award dated 24.05.2012. The original claimant, who

is the 1st respondent in this appeal, filed Cross Objection No.40 of

2014, seeking enhancement of compensation.

2. I would like to refer the parties in this appeal as

`petitioner' and `insurer'.

3. Summary of the petition averments, shown off

unnecessary details, for determination of this case is as follows: M.A.C.A No.2221/2012 &

4. The petitioner approached the Tribunal and filed

petition under Section 163A of the Motor Vehicles Act,

contending that he sustained serious injuries in an occurrence

arising out of the use of an Ambassador car bearing Reg.No.KL-

8/P 3211. According to the petitioner, while he was travelling in

the above car from Puthur to Coimbatore and when the car

reached near Yakkara bridge at Palakkad, a Maruti Esteem Car

overtook the Ambassador car and obstructed the car. Thereafter,

the petitioner and his friends were attacked by using weapons

including a chopper and gun. The petitioner underwent treatment

and accordingly he canvassed compensation to the tune of

Rs.7,13,350/-.

5. The 3rd respondent, who is the insurer, filed written

statement and zealously opposed the contentions raised by the

petitioner. The 3rd respondent raised a contention that this

petition filed under Section 163A of the Motor Vehicles Act

cannot be sustained as the occurrence is not as a result of use of a

motor vehicle. At the same time, policy to the vehicle during the M.A.C.A No.2221/2012 &

period of accident was admitted. But quantum of compensation

under various heads was opposed.

6. 1st respondent filed written statement opposing the

contentions of the petitioner, mainly disputing the quantum.

7. The Tribunal went on trial. PW1 examined and

Exts.A1 to A4 marked on the side of the petitioner. Ext.B1

marked on the side of the 3rd respondent.

8. After appraising the evidence, the learned Tribunal

held that the petition under Section 163A of the Motor Vehicles

Act is maintainable. Thus award for Rs.4,34,550/- was passed

along with 8% interest per annum.

9. While assailing the award of the Tribunal on the

finding that the occurrence alleged by the petitioner is one arising

out of the use of a motor vehicle, it is vehemently argued by the

learned counsel for the insurer that though the special provision

under Section 163A envisages grant of compensation on

structured formula basis in the case of death or permanent

disablement due to accident arising out of the use of the motor M.A.C.A No.2221/2012 &

vehicle, when persons travelling in a car, if attacked by some

rivalries, the same cannot be treated as an occurrence arising out

of the use of motor vehicles. In this connection, the learned

counsel for the insurance company placed decision reported in

[2004 (2) KLT 395], Deepal Girishbhai Soni v. United India

Insurance Co. Ltd. Para.40 of the above judgment has been

highlighted in this regard.

10. However, it is vehemently argued by the learned

counsel for the petitioner that the term `arising out of the use of

the motor vehicle' to be understood in a liberal magnitude.

According to him, if it is established by the claimant that the

disablement was caused due to an accident arising out of the use

of the motor vehicle, then the claimant would be entitled to for

payment of compensation under Section 163A of the Act. The

learned counsel placed decision reported in [2000 (2) KLT

526(SC)], Rita Devi v. New India Assurance Co. Ltd., in support

of this contention. On reading this decision, the Honourable

Supreme Court considered the case of one Dasarath Singh, driver M.A.C.A No.2221/2012 &

of an autorickshaw, owned by one Lalit Singh. The said

autorickshaw was hired by some unknown passengers and

thereafter they attempted to steal the same. When such attempt

was obstructed, the unknown persons murdered the autorickshaw

driver. The legal-heirs of Dasarath Singh when moved an

application under Section 163A of the Motor Vehicles Act, the

Apex Court held that such occurrence would come within the

ambit of the accident arising out of the use of motor vehicles

within the purview of Section 163A of the Motor Vehicles Act.

11. It is not in dispute that Section 163A of the Motor

Vehicles Act got incorporated in the statute book with a view to

grant compensation on the basis of a structured formula basis in

the case of death or permanent disablement due to accidents

arising out of the use of motor vehicles. In such cases, proof of

negligence is not necessary and the petitioner or the legal-heirs

could claim compensation under the provision, if their yearly

income is Rs.40,000/- or less.

12. To be on the facts of this case, the specific case put up M.A.C.A No.2221/2012 &

by the petitioner is that when he was travelling from Puthur to

Coimbatore and when he reached near Yakkara bridge at

Palakkad, some unknown persons travelled in a Maruti Esteem

car overtook the Ambassador car in which the petitioner and his

friends were travelling and thereafter the unknown persons

attacked them. It is admitted by the learned counsel for the

insurer that the driver of the car filed an application before the

Workmen's Compensation Commission and he was granted

compensation.

13. The vital question requires answer is; what would be

the nature of accident to treat the same as one arising out of the

use of the motor vehicle?. While analysing an accident within

ambit of Section 163A of the Motor Vehicles Act with a view to

find whether the same is arising out of the use of motor vehicle,

in fact, such an accident is not expressly defined in the Act.

Some debate in the context of the facts and circumstances

encompassed in a particular case, is decisive in this regard. To

put it otherwise, the nexus between accidental injuries and the use M.A.C.A No.2221/2012 &

of vehicle is the plank on which occurrence to be reckoned to

include the same under the category of an accident arising out of

the use of the motor vehicle. While having a liberal and prudent

approach, the cardinal principle to be borne in mind while answering

the query as to whether a particular accident is one resulted while

using a motor vehicle, a very pertinent aspect is, impossibility or

improbability of the victims'/injureds' presence at the place of

occurrence without junction of the vehicle. To be more vivid, when

the nexus between the vehicle and the occurrence which resulted in

causing the injuries to the petitioner is evaluated, one could see that

the accident would not have happened if the vehicle was not used to

reach the place of occurrence or the occurrence, either expressly or

impliedly, is the proximate outcome of the use of the motor vehicle.

Here, the petitioner travelled from Puthur to Coimbatore and during

this course, he was attacked by some unknown persons. If he would

not have travelled in the vehicle and not reached the place of

occurrence, the accident could not have happened. In such a case, it

is not safe to say that the occurrence is an independent one eschewing

any nexus arising out of the use of motor vehicle. To the M.A.C.A No.2221/2012 &

contrary, it has to be held that use of the motor vehicle ultimately led

to the accident. Therefore, I have no hesitation to hold that the

occurrence narrated by the petitioner is one arising out of the use

of the motor vehicle. Contra argument urged by the learned

counsel for the insurer cannot be countenanced. Thus the said

contention stands rejected.

13. The next contention raised by the learned counsel for

the insurer in the matter of grant of compensation in excess of

what has been specifically mentioned in the schedule appended to

Section 163A of the M.V Act required to be addressed. At this

juncture, the learned counsel for the petitioner attempted to

justify the award on the assertion that reasonable compensation

was granted and therefore, no reduction is permissible.

14. While allaying the dispute in the matter of amount

entitled in a claim under Section 163A of the Motor Vehicles Act,

I have no hesitation to hold that the compensation fixed as per the

schedule alone can be granted under this special provision and

anything more is impermissible.

M.A.C.A No.2221/2012 &

15. Keeping the above principle in mind, I have perused

the award. It could be noticed that though Rs.15,000/- alone is

the maximum amount permissible under the head medical

expenses, the Tribunal granted Rs.2,94,389/-. Therefore,

Rs.2,79,389/- [294389 - 15000] granted by the Tribunal under

the head medical expenses is reduced. Similarly, under the

head pain and suffering, Rs.14,000/- was granted by the Tribunal

though the said amount also is limited to Rs.5,000/- in the case of

grievous injuries. Therefore, Rs.9,000/- granted under this head

is liable to be reduced. The Tribunal granted Rs.1,00,800/- under

the head disability income. Further the Tribunal granted

Rs.10,000/- under the head loss of disfigurement and loss of

amenities. The said amount also would not come within the

ambit of Section 163A of the Motor Vehicles Act. Therefore, the

same also is liable to be reduced. The argument at the instance

of the learned counsel for the petitioner in the matter of disability

income granted by reducing the disability to 20% is to be

addressed next. It is argued that though as per Ext.A9 proved M.A.C.A No.2221/2012 &

through PW1, its author, showed 45% disability, the Tribunal is

not justified in fixing 20% as the disability. It is vehemently

argued by the learned counsel for the petitioner that considering

the serious nature of injuries sustained by the petitioner and the

consequential treatment, 45% disability as such would have been

fixed by the Tribunal.

16. Going by the treatment records, the petitioner

sustained compound fracture left collar bone, post traumatic, post

ganglionic brachial plexus, injury left side involving C5, C6, C7

left brachial plexipathy, lacerated wound 3 c.m X 2 c.m, over left

upper chest, pain and swelling deformity of left clavicle, multiple

bodily injuries. The Tribunal while evaluating the evidence given

by PW1 to support Ext.A9, physically examined the petitioner

and came to the conclusion that the petitioner's physical

appearance did not suggest the disability to the extent of 45%. I

have perused Ext.A9 at par with the deposition of PW1,

Dr.K.Balagopal, who authored Ext.A9. The injuries narrated

above have been dealt in the disability certificate to fix 45% M.A.C.A No.2221/2012 &

whole body disability. During cross examination, PW1 given

categoric evidence that brachial plexipathy injury is a nerve

injury. Although PW1 had given evidence that he was competent

to assess disability on account of nerve injury; PW1 is, in fact, a

Professor in Orthopaedic at Medical College Hospital, Thrissur.

So his competence to assess disability on account of nerve

disorder is in doubt, as rightly argued by the learned counsel for

the insurer. However, it appears that the injuries are very serious.

Therefore, the disability can be fixed at 30%. The multiplier 14

fixed by the Tribunal is also on the lower side as the proper

multiplier is 17 following the ratio in [2010 (2) KLT 802], Sarla

Verma v. Delhi Transport Corporation. Accordingly, the

disability income can be re-calculated fixing the monthly income

claimed by the petitioner at Rs.3,300/- though the Tribunal fixed

the same at Rs.3,000/-. Thus the disability income is recalculated

as :

3300 X 12 X 17 X 30/100 = Rs.2,01,960/-, out of which

Rs.1,00,800/- was granted by the Tribunal and the balance M.A.C.A No.2221/2012 &

Rs.1,01,160/- is granted as enhanced compensation under the

head disability income.

17. It is submitted by the learned counsel for the petitioner

that the Tribunal granted loss of earnings only for a period of 3

months, though the petitioner underwent prolonged treatment.

Schedule to Section 163A of the Motor Vehicles Act provides

grant of loss of income for the actual period of disablement, not

exceeding 52 weeks. Considering the nature of serious injuries

sustained, I am inclined to grant loss of earnings for a period of

10 months @ Rs.3,300/- per month, as claimed by the petitioner.

Thus Rs.24,000/- [3300X10 - 9000] more is granted under the

head loss of earnings.

18. In the result, (i) M.A.C.A.No.2221 of 2012 filed by

the insurance company is allowed in part, thereby the

compensation granted in excess of the scheduled formula is

reduced as above;

(ii) C.O.No.40 of 2014 also is allowed in part by granting

increase under the head loss of disability and loss of earnings. M.A.C.A No.2221/2012 &

Consequently, it is held that the petitioner is entitled to get total

compensation to the tune of Rs.2,61,321/- (Rupees Two lakh

sixty one thousand three hundred twenty one only) only and the

award impugned is modified as above with the same rate of

interest granted by the Tribunal from the date of petition till the

date of deposit or realisation. The insurer/insurance company is

directed to deposit the same in the name of the petitioner

within two months from today and the petitioner is at liberty to

release the same, on deposit.

Sd/-

(A. BADHARUDEEN, JUDGE) rtr/