Kerala High Court
P. Saraswathy vs K.M. Joseph on 3 February, 2025
MACA 1536/2016
1
C.R.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 3RD DAY OF FEBRUARY 2025 / 14TH MAGHA, 1946
MACA NO. 1536 OF 2016
OPMV NO.1176 OF 2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,
PALAKKAD
APPELLANT/CLAIMANT
P. SARASWATHY,
W/O. LATE K.P. NARAYANAN, R.V.G. COMPOUND, MANANCHIRA,
MANJAKULAM ROAD,PALAKKAD,
BY ADVS.
SRI.P.VENUGOPAL (1086/92)
SMT.T.J.MARIA GORETTI
RESPONDENTS/RESPONDENTS
1 K.M. JOSEPH
PROPRIETOR M/S KAYJAY AGENCY, INDIRA GANDHI ROAD, W.
ISLAND, KOCHI- PIN;682003.
2 GOAL GOALY @ JAMES
CHAHALAKAD HOUSE, SOUTH MULANKUZHY, MUNDENVELI,
ERNAKULAM, PIN- 685207
3 UNITED INDIA INSURANCE COMPANY LIMITED
HANDCRAFTS BUILDING, W. ISLAND, KOCHI-PIN- 682003.
BY ADVS.
SRI.A.R.GANGADAS
SRI.JOHN JOSEPH VETTIKAD - SC
SRI.C.JOSEPH JOHNY
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
20.1.2025, THE COURT ON 03.02.2025 DELIVERED THE FOLLOWING:
MACA 1536/2016
2
C.R.
JUDGMENT
Dated : 3rd February, 2025
A mother, who lost her 31 year old unmarried son in a motor vehicle
accident that occurred on 10.2.2010 and whose claim petition has been
dismissed by the Tribunal, is before me in appeal. The main reason for the
dismissal is, she happened to file OP(MV).1176/2010 before the Motor
Accidents Claims Tribunal, Palakkad, under Section 163A of the Motor
Vehicles Act ('the M.V.Act' for short), instead of filing it under section 166 of
the M.V.Act.
2. According to the petitioner, while her son was travelling in a car
from Thrissur to Palakkad, at about 8.15 p.m on 10.2.2010, a container lorry
driven by the 2nd respondent in a rash and negligent manner hit against the car
and as a result of which, her son was crushed to death. Though the OP was filed
under Section 163A of the M.V.Act, there was specific allegation in the petition
that the accident occurred due to the rash and negligent driving of the container
lorry by the 2nd respondent. In OP the annual income of the deceased claimed
was Rs.90,000/-. Respondents 1 and 3 are the owner and insurer of the
container lorry.
3. The 3rd respondent/insurer filed written statement admitting valid
insurance coverage to the container lorry, but contended that the accident
occurred due to the negligence of the deceased.
4. The evidence in the case consists of Extes.A1 to A8 and B1. The
documents produced by the petitioner includes copy of the FIR and charge-
sheet involved in the crime No.152/2010 of Vadakkanchery police station
against the 2nd respondent, the driver of the container lorry. After evaluating the
evidence on record, the Tribunal found that since the annual income of the
deceased was Rs.90,000/- a petition under Section 163A of the M.V.Act is not
maintainable and accordingly the claim petition was dismissed .
5. Being aggrieved by the above order of the Tribunal dismissing the
OP, she preferred this appeal.
Now the points that arise for consideration are the following :
(i) Whether the Tribunal was justified in dismissing the OP filed under
Section 163A of the M.V. Act as not maintainable for the reason that
the annual income of the victim was more than Rs.40,000/-, in spite of
the fact that there was sufficient pleadings and evidence to proceed
under Section 166 of the M.V.Act ?
(ii) Whether, at this belated stage, the claim petition is to be remanded
to the Tribunal ?
(iii) What should be the quantum of compensation to be awarded to
the petitioner, in case the claim petition is not remanded to the
Tribunal ?
6. Heard Sri.P.Venugopal, the learned counsel for the petitioner and
Sri.John Joseph Vettikad, the learned Standing Counsel for the 3rd respondent.
7. In order to bring a claim petition under Section 163A of the
M.V.Act the annual income of the victim should be within the upper limit
indicated in Schedule II of the M.V.Act, ie, Rs.40,000/-.
8. The scope of Section 163A of the M.V.Act has been explained by
the Hon'ble Supreme Court in Deepal Girishbhai Soni v. United India
Insurance Co.Ltd, 2004 KHC 595 in paragraph 67 as follows :
".... In our opinion, the proceeding under Section 163-A being a social
security provision, providing for a distinct scheme, only those whose
annual income is upto Rs. 40,000/- can take the benefit thereof. All
other claims are required to be determined in terms of Chapter XII of
the Act."
9. Relying upon the decision in Deepal Girishbhai Soni (supra) the
learned counsel for the 3rd respondent would argue that it is the option of the
claimant to file a claim petition either under Section 166 or under Section 163A
of the M.V.Act. It was argued that, once the option is exercised and a claim
petition was filed and it was dismissed, the claimants cannot claim benefit
under section 166. Therefore, he vehemently pressed for dismissal of the
appeal.
10. The learned counsel for the appellant/claimant would argue that
the claim petition filed under Section 163A on its face was not maintainable as
the annual income of the deceased disclosed in the petition was Rs.90,000/-.
The claim petition contained sufficient pleadings to the effect that the accident
occurred due to the negligence of the 2nd respondent. Therefore, he would argue
that, the procedure adopted by the Tribunal is not correct. According to him,
once it was found that the claim under Section 163A of the M.V.Act was not
maintainable as the annual income of the deceased disclosed in the petition was
Rs.90,000/-, the Tribunal ought to have proceeded under Section 166 of the
M.V.Act, instead of dismissing the same.
11. In the decision in National Insurance Company Limited v.
K.M.Jabbar, 2007 KHC 5002, relied upon by the learned counsel for the 3 rd
respondent, a learned Single Judge of this Court held that a claimant cannot
pursue his remedies both under Section 163A as well as under Section 166 and
he should opt among the two proceedings on or before the framing of the
issues.
12. In the decision in United India Insurance Company Ltd. v.
Usman Haji and Others, 2013 (1) KHC 347, relied upon by the learned
counsel for the appellant a Division Bench of this Court held that if a petition
filed under Section 163A is not maintainable, it can be treated as one under
Section 166 for the purpose of fulfillment of justice. In the above decision, the
claim petition was filed under Section 163A claiming compensation by the
legal representatives of the deceased whose annual income was Rs.72,000/-. In
the above context, the Division Bench held in paragraph 6, 8 and 9 as follows :
"6. The main contention that was advanced is that in the petition it is
stated that the deceased was having a monthly income of Rs.6,000/-. But,
the second schedule inserted by Act 54 of 1994 can be applied to a claim
under S.163A only if the annual income of the victim / deceased is not
exceeding Rs.40,000/-. In this case, the annual income stated in the
application would come to Rs.72,000/- per annum. Therefore, according to
learned counsel for appellant, the claim under S.163A is not sustainable
and that the respondents 1 to 6 should have applied under S.166 of the MV
Act. Placing reliance on the decisions reported in Deepal Girishbhai Soni
v. United India Insurance Co. Ltd., 2004 KHC 595 : 2004 (2) KLT 395
(SC): 2004 (5) SCC 385 : AIR 2004 SC 2107, National Insurance Co. Ltd
v. Divakaran, 2009 (4) KLT 90 and United India Insurance Co. Ltd v.
Akbar Shihab, 2012 KHC 304 : 2012 (2) KLT 242 : 2012 (2) KLJ 317 :
ILR 2012 (2) Ker. 666, the learned counsel sought for allowing the appeal
and remanding the matter to the Tribunal below so as to convert the
petition to one under S.166 of the Motor Vehicles Act and to recalculate the
compensation awarded. Yet another grievance of the appellant is that the
3rd respondent, who was driving the van, was not authorised to drive the
van and therefore, the Tribunal should have reserved a right to the
appellant to realise the award amount from the owner.
8. Going by S.163A, S.165 and S.166 of the Motor Vehicles Act, we find
that S.163A only provides a special provision as to payment of
compensation on structured formula basis. Even though the claim under
S.163A is also on fault basis principle, sub-clause (2) to S.163A would
show that when compensation is sought as per the structured formula, the
claimant need not plead or prove that the accident was caused due to the
rash or negligent driving of the motor vehicle or wrong or default of any
other person. But in claims under S.166, the claimants are bound to plead
and prove as to how they are entitled to claim compensation and how the
respondents are liable.
9. In this case, though the petition is styled as under S.163A, it is
specifically pleaded that the accident occurred because of the rash and
negligent driving of the 8th respondent at an exorbitant speed at a busy
junction. In the box, PW 1 also had given evidence that the accident
occurred because of the rash and negligent driving of the 3rd respondent.
That evidence of PW 1 was not assailed in cross - examination. It is not in
dispute that in the final report submitted by the police after investigation it
is alleged that the accident occurred because of the rash and negligent
driving of the van by the 8th respondent and he was accused for offences
under S.279 and S.304 IPC. Therefore, though the petition was styled as
one under S.163A, in fact, the sum and substance of the petition is a claim
with plea of negligence against the driver. In the above circumstances, in
the light of the decision of the Apex Court in Ningamma v. United India
Insurance Co. Ltd., 2009 KHC 5046 : 2009 (13) SCC 710 : AIR 2009 SC
3056 : 2009 (8) SCALE 244, we find that the petition before the Tribunal is
to be treated as one under S.166 of the Motor Vehicles Act and to be
disposed of for doing justice to the claimant. In Ningamma's case (supra),
the claim under S.163A of the MV Act was allowed by the Tribunal. High
Court allowed the appeal holding that the claim petition before the
Tribunal was not maintainable as there was no tortfeasor involved. Against
that order Civil Appeal was filed before the Apex Court with special leave.
While allowing the appeal and remanding the case to the High Court, at
page 34, it is held as follows:
"Undoubtedly S.166 of the MVA deals with "just compensation"
and even if in the pleadings no specific claim was made under
S.166 of the MVA, in our considered opinion a party should not be
deprived from getting "just compensation" in case the claimant is
able to make out a case under any provision of law. Needless to
say, the MVA is beneficial and welfare legislation. In fact, the
Court is duty bound and entitled to award "just compensation"
irrespective of the fact whether any plea in that behalf was raised
by the claimant or not."
In paragraph 37, the Apex Court requested the High Court to consider the
matter including quantum of compensation. We find that it would not be
appropriate in the interest of justice to shunt the bereaved claimants from
one forum to another forum on technical reasons especially when the
quantum of compensation as per the impugned award is not assailed."
13. Further in paragraph 12, the Division Bench held that misquoting a
provision of law in an application of this nature shall not be allowed to decline
the relief. As in the instant case, in the above case also, negligence against the
driver of the offending vehicle was pleaded and proved so as to sustain a claim
under Section 166. The Division Bench in paragraph 12 held as follows :
"........Misquoting a provision of law in an application of this nature shall
not be allowed to decline the relief. We also notice that though the income
stated in the claim petition would make the claim beyond the schedule, the
compensation claimed is within the schedule. Adding to that, the Tribunal
calculated the compensation and arrived at a conclusion that the income of
the deceased was only Rs.3000/- per month, I.e. Rs.36,000/- per annum.
Negligence against the driver was pleaded and proved to sustain the claim
under S.166. However, in the light of the decision reported in Ningamma's
case (supra), we are not going into that aspect, but we would like to mention
that because of the non-mentioning of the objection before the Tribunal, the
claimants are highly prejudiced and this claim for compensation has to be
dragged to this Court causing heart burns to the claimants as well as undue
hardship. A remand of the case after this long distance of time would
amount to insult to injury and denial of justice. Therefore, we decline the
request of the appellant for a remand."
14. In the decision in National Insurance Co.Ltd. Kottayam v.
Aravindakshan and Another, 2016 (3) KHC 78, another Division Bench of
this Court was dealing with a similar case. In that case, though the claim
petition was filed under Section 163A, the Tribunal found that the claim under
Section 163A was not maintainable. However, since there was pleadings and
evidence to prove negligence on the part of the offending vehicle, the Tribunal
proceeded to pass an Award under Section 166 of the M.V.Act and the same
was endorsed by the Division Bench in the following words :
"As mentioned above, based on the pleadings and evidence let in, the
Tribunal has already considered the matter with reference to negligence
and it was accordingly, that a clear finding was rendered in the award that
the accident was solely because of negligence of the driver of the car. This
being the position, the aspect of negligence having been established and a
finding in this regard having been rendered, there was no obligation for the
claimants to have pleaded or proved negligence [though the claim petition
was preferred under Section 163A], if the claim was otherwise
maintainable . The purpose of the remand, if at all any, is only to cause
consideration of the claim with reference to the 'principle of fault' under
Section 166 of the Motor Vehicles Act. The said course has already been
pursued by the Tribunal, though the claim was preferred under section
163A, and a finding has been rendered accordingly with reference to
negligence, which supports the cause projected by the claimants. Since
such a finding on fact has been rendered fixing negligence upon the first
respondent before the Tribunal, in turn fixing the liability upon the
shoulders of the Insurance Company, no other purpose is to be served by
causing such a remand."
15. In Sumathy Amma and Others v. Babu and Others, 2018 KHC
7529, another Division Bench of this Court relied upon the decision
Aravindakshan (supra) and held that in such circumstances, there is no
necessity to remand the matter to the Tribunal.
16. In the decision in Mamta and Ors. v. Happy and Ors,
MANU/PH/2851/2024 the question that came up before the Punjab and
Haryana High Court was whether at the appellate stage the claim petition under
Section 163A can be converted to one under Section 166 of the M.V.Act. The
Court ultimately answered the question in the affirmative, as it is necessary to
give justice to the claimants.
17. As argued by the learned counsel for the 3 rd respondent, a claimant
cannot pursue his remedies both under Section 163A and 166 of the M.V.Act
simultaneously. If two such simultaneous proceedings are pending, the claimant
has to exercise his option to proceed with any one of them and to abandon the
other one, at least at the stage of framing of issue. However, in the instant case,
there is no such situation where two proceedings are pending simultaneously. In
this case there is only one proceeding and it was filed under Section 163A,
which was prima facie not maintainable as the annual income of the deceased
claimed in the petition was Rs.90,000/-. At the same time, there was specific
pleading and evidence in the case to conclude that the accident occurred due to
the negligence of the 2nd respondent. Ext.A3 charge-sheet was also produced to
prove the negligence on the part of the 2 nd respondent, the driver of the lorry. In
the above circumstances, in the light of the decisions referred above, it is to be
held that the Tribunal was not justified in dismissing the O.P. Instead, the
Tribunal ought to have proceeded under Section 166 of the M.V.Act.
18. The appellant approached the Court seeking compensation for the
death of her son in an accident of the year 2010. Now 15 years have elapsed.
Since there is sufficient pleadings and evidence in this case to prove negligence
on the part of the 2nd respondent, at this belated stage, it is not just and proper to
remand the matter to the Tribunal for fresh disposal, as it will protract the case
further. In the above circumstances, I hold that this Court has to proceed to
dispose of the clam petition on merits under Section 166 of the M.V.Act,
instead of remanding it again to the Tribunal.
19. On the date of the accident, the deceased was aged 31. According
to the appellant, the deceased was an employee earning Rs.90,000/- per annum.
The petitioner has not adduced any evidence to prove the income of the
deceased as claimed in the OP. In the above circumstances, for awarding a just
and reasonable compensation, the notional income of the deceased is liable to
be fixed as that of a Coolie, in the light of the decision of the Hon'ble Supreme
Court in Ramachandrappa v. Manager, Royal Sundaram Alliance, (2011)
13 SCC 236 (DB). As per the above decision, the notional income of a Coolie
during the year 2010 will come to Rs.7,500/- and as such, the notional income
of the deceased is fixed at Rs.7500/-.
20. Since he was aged 31, 40% of the income is liable to be added
towards future prospects in the light of the decision in National Insurance
Co.Ltd v Pranay Sethi -[(2017(4) KLT 662 (SC)] and the multiplier to be
applied is 16 in the light of the decision in Sarla Verma v. Delhi Transport
Corporation [2010 (2) KLT 802 (SC)]. Sine he was a bachelor, half of the
income is liable to be deducted towards personal and living expenses and as
such, the loss of dependency will come to Rs.1008000/-.
21. In the light of the decision in Pranay Sethi (supra), towards
conventional heads, the petitioner can claim only Rs.15,000/- each towards
funeral expense and loss of estate and Rs.40,000/- towards loss of consortium,
with an increase of 10% for every three years. In the above circumstances, she
is entitled to get a sum of Rs.18,150/- towards loss of estate, Rs.18,150/-
towards funeral expenses and Rs.48,400/- towards loss of consortium.
22. Rs.25,000/ appears to be a just and reasonable compensation
towards 'pain and sufferings', and hence a sum of Rs.25,000/- is awarded on
the head 'pain and sufferings'.
23. Therefore, the petitioner is entitled to get a total compensation of
Rs.11,17,700/- as calculated above and given in the table below, for easy
reference.
Heads Amounts awarded in the appeal(in
Rs.)
Loss of dependency 10,08,000
Loss of estate 18150
Funeral expense 18150
Loss of consortium 48400
Pain and suffering 25000
Total 11,17,700
24. In the result, this Appeal is allowed and the 3 rd respondent is
directed to deposit a total sum of Rs.11,17,700/- (Rupees elevan lakh seventeen
thousand and seven hundred only) along with interest @ 8% per annum, from
the date of the petition till deposit/realisation, excluding interest for 339 days,
the period of delay in filing the appeal, with proportionate costs, within a
period of two months from today.
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
Mrcs/29.1.25
