Kerala High Court
Jino K Baby vs Safad.K.M on 7 April, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 7TH DAY OF APRIL 2025 / 17TH CHAITHRA, 1947
MACA NO. 3804 OF 2016
AGAINST THE AWARD DATED 23.04.2016 IN OPMV NO.745 OF
2014 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE
APPELLANT/PETITIONER:
JINO K BABY
AGED 26 YEARS, S/O. BABY,
RESIDING AT KARUVELY HOUSE, P.O,
PUTHUPPADY, VIA THAMARASSERY,
KOZHIKIDE - 673586.
BY ADV SRI.AVM.SALAHUDIN
RESPONDENTS/RESPONDENTS:
1 SAFAD.K.M
S/O. MUHAMMED, AGE NOT KNOWN,
RESIDING AT KARAKANDIMMAL HOUSE, P.O,
KATTIPPARA, THAMARASSERY,
KOZHIKODE - 673573.
2 BASHEER K.A.
AGED 37 YEARS, S/O. ABDURAHIMAN,
RESIDING AT KANDIYIL HOUSE, P.O.,
KATTIPPARA, THAMARASSERY,
KOZHIKODE - 673573.
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3 BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD
5TH FLOOR, M SONS, ARCADE,
CHEROOTTY ROAD, KOZHIKODE - 673001.
BY ADV SRI.VINUCHAND
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 07.04.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
Dated this the 7th day of April, 2025
The petitioner in O.P.(M.V.) No.745/2014 on the file of the
Principal Motor Accident Claims Tribunal, Kozhikode is the appellant
herein. (For the purpose of convenience, the parties are hereafter
referred to as per their rank before the Tribunal).
2. The petitioner filed the above O.P. under Section 163 A of the
Motor Vehicles Act, 1988, claiming compensation for the injuries
sustained in a motor vehicle accident that occurred on 27.12.2012.
According to the petitioner, on 27.12.2012 at about 3 p.m., while he was
riding a motor cycle, bearing No.RJ 04-M-4712 along the
Thamarashery - Engapuzha road, an Omni van bearing registration
No.KL 57 F 3089 driven by the 2nd respondent dashed against the motor
cycle and as a result of which the petitioner sustained serious injuries.
3. The 1st respondent is the owner, the 2nd respondent is the driver
and 3rd respondent is the insurer of the Omni van. According to the
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petitioner, the accident occurred due to the negligence of the driver of
the offending vehicle. The quantum of compensation claimed in the O.P.
is Rs1,00,000/-.
4. The insurance company filed a written statement, admitting the
accident as well as policy, but disputing the negligence on the part of the
driver of the offending vehicle.
5. The evidence in the case consists of the documentary evidence
Exts.A1 to A15, B1, and C1.
6. After evaluating the evidence on record, the Tribunal found
negligence on the part of the petitioner himself and dismissed the claim
petition on the ground that he himself is the tortfeasor.
7. Aggrieved by the above order dismissing the claim petition, the
petitioner preferred this appeal.
8. Heard Sri.A.V.M Salahuddeen, the learned Counsel appearing
for the petitioner/appellant, and Sri.Vinuchand, the learned Standing
Counsel for the 3rd respondent.
9. The law is well settled that in a claim petition field under
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Section 163A of the Motor Vehicles Act, the claimant need not plead or
prove the factum of negligence.
10. The learned counsel for the insurer would argue that the
petitioner ought to have proceeded against his own insurer as the
accident occurred because of his own negligence and there was no
negligence on the part of the 2 nd respondent. However the law is settled
that the insurer cannot claim against his own insurer and as such I do not
find any merits in the argument advanced by the learned counsel for the
3rd respondent.
11. As per the claim petition the petitioner is a coolie and the
income claimed in the original petition is Rs.3200/-. As per the dictum
laid down by the Hon'ble Supreme Court in the decision in
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance
Co. Ltd. [2011 (13) SCC 236], the notional income of a coolie, in the
year 2012 will come to Rs.8,500/-. The outer limit of the annual
income for maintaining a claim petition under Section 163A of the
M.V. Act is Rs.40,000/- In the above circumstance, the notional annual
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income of the petitioner is fixed at Rs.40,000/-.
12. In this case, the petitioner sustained 25% disability. At the
time of the accident, he was aged 24 years. Therefore, as per the 2 nd
Schedule to the M.V. Act,, the compensation payable to him will come
to Rs.1,80,000/- (40000x18x25/100)
13. In addition to the same, the petitioner is entitled to get a sum
of Rs.5,000/- towards pain and suffering, and maximum amount of
Rs.15,000/- towards medical expenses. In this case, the petitioner has
produced medical bills worth Rs.73,666/-. However, since the
maximum compensation payable towards medical expenses is only
Rs.15,000/-, the compensation on that head is limited to Rs.15,000/-.
Therefore, the total compensation payable to the petitioner will come to
Rs.2,00,000/- (180,000+15000+5000)
14. In the result, this Appeal is allowed in part, and Respondent
No.3 is directed to deposit a total sum of Rs.2,00,000/- (Rupees two
lakhs only), less the amount already deposited, if any, along with interest
@ 8% per annum from the date of the petition till deposit/realisation,
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with proportionate costs, within a period of two months from today.
15. On depositing the aforesaid amount, the Tribunal shall
disburse the entire amount to the petitioner, excluding court fee payable,
if any, without delay, as per rules.
Sd/-
C. PRATHEEP KUMAR,
JUDGE
sou.
