New India Assurance Co.Ltd vs Bindu
2021 Latest Caselaw 14593 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                   THE HONOURABLE MR.JUSTICE C.S.DIAS
        WEDNESDAY, THE 14TH DAY OF JULY 2021 / 23RD ASHADHA, 1943
                         MACA NO. 2758 OF 2015
AGAINST THE ORDER/JUDGMENT IN OP(MV) 373/2009 OF THE MOTOR ACCIDENTS
                      CLAIMS TRIBUNAL, THODUPUZHA
APPELLANT/3RD RESPONDENT:

             NEW INDIA ASSURANCE CO.LTD.,
             KATTAPPANA BRANCH, KATTAPPANA POST, IDUKKI DISTRICT,
             REPRESENTED BY THE MANAGER, REGIONAL OFFICE, KOCHI.

             BY ADV SRI.RAJAN P.KALIYATH



RESPONDENTS/CLAIMANTS & R1 AND R2:

    1       BINDU, W/O.ASHOKAN, AGED 35 YEARS,
            W/O.ASHOKAN, PALACKAPARAMBIL HOUSE, UMMAKADA, CHARALMEDU
            KARA, KALKOONTHAL VILLAGE, UDUMBANCHOLA TALUK - 685554.

    2       ANEESH,
            S/O.ASHOKAN, -DO-

    3       ATHIRA,
            D/O.ASHOKAN, -DO-

    4       AMA,
            S/O.ASHOKAN, MINOR, AGED 15 YEARS, REPRESENTED BY THE
            MOTHER BINDU, W/O.ASHOKAN, FIRST RESPONDENT, -DO-

    5       THRESSIAMMA,
            W/O.KUNJUKUTTY, AGED 66 YEARS, -DO-

    6       BINU,
            S/O.CHANDRASEKHARAN, BLOCK NO.946, THIRD CAMP PO,
            UDHAYAPURAM BHAGAM, KARUNAPURAM VILLAGE, IDUKKI DISTRICT.

    7       SHIJI N.M.,
            BLOCK NO.646, BALAGRAM POST, THIRD CAMP, NEDUMKANDOM,
            IDUKKI DISTRICT.
 MACA NO. 2758 OF 2015          2

          BY ADV SRI.S.SACHITHANANDA PAI




     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 14.07.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 MACA NO. 2758 OF 2015               3

                           JUDGMENT

The appellant - Insurance Company - was the 3 rd

respondent in OP(MV) No.373 of 2009 on the file of the

Motor Accidents Claims Tribunal, Thodupuzha. The

respondents 1 to 5 in the appeal were the claimants and

respondents 6 and 7 in the appeal were the respondents

1 and 2 before the Tribunal. The parties are, for the sake

of convenience, referred to as per their status before the

Tribunal.

2. The petitioners had filed the claim petition

u/S.163 A of the Motor Vehicles Act 1988 claiming

compensation from the respondents.

3. The brief facts, relevant for the determination

of the appeal, are: on 12.5.2009, while Ashokan

(deceased) - the husband of the 1st petitioner and the

father of petitioners 2 to 4 and the son of the 5th

petitioner - was driving a jeep bearing Reg.No.KL-

6A/2190 from Nedumkandam to Cumbum when he

reached the place named third Camp, an Auto rickshaw

bearing Reg No.Kl-37/3885 driven by the 1st respondent

hit the jeep. The 2nd respondent was the owner of the

auto rickshaw and the 3rd respondent was the insurer.

The accident was caused due to the negligence of the 1 st

respondent. Hence, the petitioner claimed a

compensation of Rs.5,64,500/- from the respondents.

4. The respondents 1 and 2 filed a written

statement admitting the accident but they contended

that the accident took place due to the negligence of the

deceased.

5. The 3rd respondent filed a written statement

admitting that the auto rickshaw had a valid insurance

policy. It was contended that the claim petition was

filed in collusion between the petitioners and the

respondents and the accident occurred on account of

the negligence of the deceased. Hence, the claim

petition may be dismissed.

6. The 1st petitioner was examined as PW1 and

Exts.A1 to A4 were marked on her side in evidence.

Respondents produced and marked Ext.B1 to B3.

7. The Tribunal, after analysing the pleadings and

materials on record, allowed the claim petition, by

permitting the petitioners to realise an amount of

Rs.3,84,500/- from the 3rd respondent with interest @ 7

% per annum from the date of petition till the date of

realization.

8. Aggrieved by the impugned award, the 3rd

respondent/Insurance Company is in appeal.

9. Heard, the learned counsel appearing for the

appellant/3rd respondent and the learned counsel

appearing for the respondents 1 to 5/petitioners.

10. The sole question that emerges for

consideration in this appeal is whether the

compensation awarded by the Tribunal is correct or not.

11. Undisputedly, the claim petition filed was

Section 163A of the Motor Vehicles Act, 1988. The

Hon'ble Supreme Court in United India Insurance

Company Ltd., v. Sunilkumar (2017 4 KLT 1093

SC) has held that in a claim filed under Section 163A of

the Act, the insurer cannot raise the defence of the

negligence and that the compensation has to be

awarded as per the structured formula under the

Second Schedule of the Act.

12. In light of the law laid down in Sunilkumar, it

goes without saying that the 3rd respondent is bound to

pay the compensation as per the Second Schedule of the

Act.

13. The learned counsel appearing for the

appellant contended that the amount of compensation

awarded under the head medical expenses is

unsustainable in law because the petitioners have not

produced any bills/vouchers to substantiate their claim

as provided under Clause 3 (iv) of the Second Schedule

of the Act.

14. The learned counsel appearing for the

respondents 1 to 5 contended that the Tribunal has

stated cogent reasons for awarding an amount of

Rs.15,000/- because the deceased was admitted in the

hospital from 12.5.2009 to 24.5.2009. Hence, there is

no error in the award.

15. It is statutory as per the above provision, that

in order to seek for reimbursement of the medical

expenses/actual expenses incurred before the death, the

same has to be supported by bills/vouchers, but should

not exceed Rs.15,000/-.

16. In the instant case, the respondents 1 to 5 have

not produced any document as per the mandate under

Clause 3(iv) of the Second Schedule of the Act. Hence,

confirming the compensation awarded under serial

Nos.1 to 4 in the award, I set aside the amount of

Rs.15,000/- awarded by the Tribunal towards medical

expenses.

In the result, the appeal is allowed in part, by

setting aside the medical expenses of Rs.15,000/-

awarded by the Tribunal, but directing the appellant to

pay the balance amount of Rs.3,69,500/- with interest @

7% per annum from the date of petition till the date of

deposit. The 3rd respondent shall deposit the aforesaid

amount before the Tribunal within a period of two

months from the date of receipt of a certified copy of

this judgment. The learned counsel appearing for the

appellant submits that pursuant to the directions of this

Court, the appellant has already deposited 50% of the

compensation amount before the Tribunal and the

respondents 1 to 5 were permitted to withdraw the said

amount. Needless to mention that if any amount was

deposited, the same shall be given credit to and only,

the balance amount as ordered in this judgment need be

deposited. The Tribunal shall disburse the balance

amount deposited pursuant to this judgment to the

respondents 1 to 5 in accordance with law.

Sd/-

C.S.DIAS, JUDGE

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