Kerala High Court
The Manager, New India Assurance Co. Ltd vs Lakshmi on 16 July, 2025
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M.A.C.A.No.360 of 2020
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 16TH DAY OF JULY 2025 / 25TH ASHADHA, 1947
MACA NO. 360 OF 2020
AGAINST THE AWARD DATED 14.08.2019 IN OP(MV) NO.77 OF
2018 OF ACCIDENT CLAIMS TRIBUNAL, WAYANAD, KALPETTA
APPELLANT/3RD RESPONDENT:
THE MANAGER, NEW INDIA ASSURANCE CO. LTD.,
MANANTHAVADY, REPRESENTED BY LEKHA VIJAYAN,
D/O.A.C.VIJAYAN, RESIDING KARTHIKA, MNRA - 59,
CUSAT P.O., THRIKKAKARA, ASST. MANAGER, REGIONAL
OFFICE, KANDAMKULATHY TOWERS,
M.G.ROAD, COCHIN - 682011.
BY ADV SRI.P.G.GANAPPAN
RESPONDENTS/CLAIMANTS & 1ST RESPONDENT & SUPPL. RESPONDENTS 4
TO 6:
1 LAKSHMI,
AGED 79 YEARS
D/O.KANDA, SISTER OF LATE MADHAVAN, THEKKANAL,
KARTIKULAM P.O., EDAYOORKUNNU, WAYANAD DISTRICT,
PIN - 670 646.
2 BHAVANI,
AGED 77 YEARS, W/O.PRAABHAKARAN, SISTER OF LATE
MADHAVAN, KOCHUMALAYIL HOUSE, MANEED P.O.,
ERNAKULAM, PIN - 686 664.
3 KRISHNAN,
AGED 72 YEARS, S/O.KANDAN, B/O.LATE MADHAVAN,
THEKKANAL HOUSE, EDAYOORKUNNU, KARTHIKULAM P.O.,
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M.A.C.A.No.360 of 2020
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PIN - 670 646.
4 SREEDHARAN,
AGED 70 YEARS, S/O.KANDAN, B/O.LATE MADHAVAN,
THEKKANAL HOUSE, EDAYOORKUNNU, KARTHIKULAM P.O.,
PIN - 670 646.
5 PADMANABHAN,
AGED 68 YEARS, S/O.KANDAN, B/O.LATE MADHAVAN,
THEKKANAL HOUSE, KANIYARAM, MANANTHAVADY P.O.,
PIN - 670 645.
6 NARAYANI,
AGED 65 YEARS
D/O.KANDAN, SISTER OF LATE MADHAVAN, THEKKANAL
HOUSE, EDAYOORKUNNU, KARTHIKULAM P.O.,
PIN - 670 646.
7 RAJAMMA,
AGED 65 YEARS, W/O.LATE KUNJU, THEKKANAL HOUSE,
THRISSILERY P.O., PIN - 670 646.
8 PRABA T.K.,
AGED 54 YEARS, D/O.LATE KUNJU, THEKKANAL HOUSE,
THRISSILERY P.O., PIN - 670 646.
9 JOSHY T.,
AGED 50 YEARS, S/O.LATE KUNJU, THEKKANAL HOUSE,
THRISILERY P.O., PIN - 670 646.
10 SARASAMMA,
AGED 76 YEARS, W/O.LATE KUMARAN, VELAMPARAMBIL
HOUSE, THEKKANAL HOUSE, 251, MARIKA P.O.,
PALAKUZHA, MUVATTUPUZHA, ERNAKULAM, PIN - 686 662.
11 SAJU,
AGED 50 YEARS, S/O.LATE KUMARAN,VELAMPARAMBIL
HOUSE, THEKKANAL HOUSE, 251, MARIKA P.O.,
PALAKUZHA, MUVATTUPUZHA, ERNAKULAM, PIN - 686 662.
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12 SANTHOSH KUMAR,
AGED 45 YEARS, S/O.LATE KUMARAN, VELAMPARAMBIL
HOUSE, THEKKANAL HOUSE, 251, MARIKA P.O.,
PALAKUZHA, MUVATTUPUZHA, ERNAKULAM, PIN - 686 662.
13 SYAMKUMAR,
AGED 45 YEARS, S/O.LATE KUMARAN, VELAMPARAMBIL
HOUSE, THEKKANAL HOUSE, 251, MARIKA P.O.,
PALAKUZHA, MUVATTUPUZHA, ERNAKULAM, PIN - 686 662.
14 LATHA,
AGED 40 YEARS, D/O.LATE KUMARAN, VELAMPARAMBIL
HOUSE, THEKKANAL HOUSE, 251, MARIKA P.O.,
PALAKUZHA, MUVATTUPUZHA, ERNAKULAM, PIN - 686 662.
15 AJITHA,
AGED 49 YEARS, D/O.LATE KUMARAN, VELAMPARAMBIL
HOUSE, THEKKANAL HOUSE, 251, MARIKA P.O.,
PALAKUZHA, MUVATTUPUZHA, ERNAKULAM, PIN - 686 662.
16 JIJI,
AGED 47 YEARS, D/O.LATE KUMARAN, VELAMPARAMBIL
HOUSE, THEKKANAL HOUSE, 251, MARIKA P.O.,
PALAKUZHA, MUVATTUPUZHA, ERNAKULAM, PIN - 686 662.
17 ANITHA,
AGED 42 YEARS, D/O.LATE KUMARAN, VELAMPARAMBIL
HOUSE, THEKKANAL HOUSE, 251, MARIKA P.O.,
PALAKUZHA, MUVATTUPUZHA, ERNAKULAM, PIN - 686 662.
* 18 LALITHA, (DIED)
AGED 69 YEARS, W/O.LATE NARAYANAN, THEKKANAL HOUSE,
KARTHIKULAM P.O., PIN - 670 646.
* 19 SINDU, (LR TO R18)
AGED 42 YEARS, D/O.NARAYANAN, THEKKANL HOUSE,
KARTHIKULAM P.O., PIN - 670 646.
20 SHIBU N.T., (LR TO R18)
AGED 41 YEARS, S/O.NARAYANAN, THEKKANAL HOUSE,
KARTHIKULAM P.O., PIN - 670 646.
(DEATH OF 18TH RESPONDENT IS RECORDED AND
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M.A.C.A.No.360 of 2020
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RESPONDENTS 19 AND 20 ARE RECORDED AS LEGAL
REPRESENTATIVES OF THE DECEASED 18TH RESPONDENT AS
PER ORDER DATED 26/8/2021 IN MEMO DATED 17/5/2021).
21 SIVADASAN P.G.,
AGED 47 YEARS, S/O.GOPALAKRISHNAN P.D., PEDALADY
HOUSE, PANAVALLY P.O., POTHUMOOLA, THIRUNELLY
VILLAGE, PIN - 688 526.
22 JANAKI,
AGED 61 YEARS, W/O.LATE GOPALAKRISHNAN, PEDALADY
HOUSE, THIRUNELLY P.O., MANANTHAVADY,
PIN - 670 646.
23 SANIL,
AGED 41 YEARS, S/O.LATE GOPALAKRISHNAN, PEDALADY
HOUSE, THIRUNELLY P.O., MANANTHAVADY,
PIN - 670 646.
24 KAMALADEVI,
AGED 39 YEARS, D/O.LATE GOPALAKRISHNAN, PEDALADY
HOUSE, THIRUNELLY P.O., MANANTHAVADY,
PIN - 670 646.
BY ADV SRI.P.G.GANAPPAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN COME UP
FOR FINAL HEARING ON 7.7.2025, THE COURT ON 16.07.2025,
DELIVERED THE FOLLOWING:
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M.A.C.A.No.360 of 2020
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C.S.SUDHA, J.
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M.A.C.A.No.360 of 2020
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Dated this the 16th day of July 2025
JUDGMENT
This appeal has been filed under Section 173 of the
Motor Vehicles Act, 1988 (the Act) by the third respondent/insurer in
O.P.(MV) No.77/2018 on the file of the Motor Accidents Claims
Tribunal, Kalpetta, (the Tribunal), aggrieved by the amount of
compensation granted by Award dated 14/08/2019. The respondents
herein are the claim petitioners, first respondent and supplementary
respondent nos.4 to 6 respectively in the petition. In this appeal, the
parties and the documents will be referred to as described in the
original petition.
2. According to the claim petitioners, on 30/05/2015 at
10:00 a.m., the deceased was walking through the extreme side of
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the road from Puzhivayal to Kartikulam and when he reached near
Valanchery palam, jeep bearing registration no.KL-12/A-5679
driven by the first respondent in a rash and negligent manner,
knocked down the deceased, as a result of which he sustained
grievous injuries. A sum of ₹9,00,000/- was claimed as
compensation under various heads.
3. The first respondent/driver of the offending vehicle filed
written statement contending that the accident occurred due to the
negligence of the deceased.
4. The third respondent/insurer filed written statement
admitting the existence of a valid policy. The negligence attributed
to the first respondent was denied. It was contended that the
compensation claimed was quite excessive.
5. Respondents 4 to 6 who are the legal representatives of
deceased second respondent/owner entered appearance and filed
written statement contending that the accident occurred due to the
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negligence of the deceased.
6. Before the Tribunal, no oral evidence was adduced on
the side of the claim petitioners. Exts.A1 to A9 were marked on the
side of the claim petitioners. No oral or documentary evidence was
adduced on the side of the respondents.
7. The Tribunal on consideration of the documentary
evidence and after hearing both sides, found that the accident was
due to the negligent driving of the first respondent/driver. Hence
awarded an amount of ₹5,25,000/- together with interest @ 8% per
annum from the date of the petition till realisation along with
proportionate costs. Aggrieved by the quantum of compensation,
the third respondent/insurer has come up in appeal.
8. The only point that arises for consideration in this appeal
is whether there is any infirmity in the findings of the Tribunal
calling for an interference by this Court.
9. Heard the learned counsel for the appellant. Though
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notice was served on the respondents, they neither appeared in
person nor through counsel.
10. It was submitted by the learned counsel for the third
respondent/insurer that an application under Section 166 of the Act
was converted by the Tribunal into an application under Section
163A of the Act and thereafter the benefits as per the amended
Section 163A has been awarded, which is a gross error committed
by the Tribunal and hence requires to be rectified.
11. As noticed earlier, though notice was served on the
respondents, they have neither appeared in person nor through
counsel. The application moved by the claim petitioners was under
Section 166 of the Act. The Tribunal relying on the dictum in
Manjuri Bera v. Oriental Insurance Company Ltd., AIR 2007
SC 1474, went on to consider the application under Section 163A of
the Act. In Manjuri Bera (Supra), it has been held that where a
legal representative who is not a dependent, files an application for
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compensation, the quantum cannot be less than the liability referable
to under Section 140 of the Act. Therefore, even if there is no loss
of dependency, the claimant if he or she is a legal representative will
be entitled to compensation, the quantum of which shall not be less
than the liability flowing from Section 140 of the Act.
11.1. Section 140 of Act deals with liability to pay
compensation in certain cases on the principle of no fault. It says
that where death or permanent disablement of any person has
resulted from an accident arising out of the use of a motor vehicle(s),
the owner(s) of the vehicle shall jointly and severally, be liable to
pay compensation in respect of such death or disablement in
accordance with the provisions of this Section. Sub-section (2) says
that the amount of compensation payable under sub-section (1) in
respect of death of any person shall be a fixed sum of fifty thousand
rupees and the amount of compensation payable under the sub-
section in respect of the permanent disablement of a person shall be
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a fixed sum of twenty-five thousand rupees. Sub-section (3) says
that in any claim for compensation under sub-section (1), the
claimant shall not be required to plead and establish that the death or
permanent disablement in respect of which the claim has been made
was due to any wrongful act, neglect or default of the owner or
owners of the vehicle or vehicles concerned or of any other person.
11.2. Here the compensation that has been worked out by the
Tribunal under Section 166 of the Act comes to ₹1,44,000/-. In
United India Insurance Company Ltd. v. Akbar Shihab, 2012
KHC 304, a Division Bench of this Court held that proceedings
under Section 166 of the Act can be initiated either on an application
of the person who suffered loss/injury in the accident or on any
report of accident forwarded to the Tribunal under sub-section (6) of
Section 158 of the Act. Proceedings under Section 163A of the Act
can be initiated only on an application by the claimants. Under
Section 166 of the Act, the Tribunal is required to assess the
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compensation for the injury or death of a person, as the case may be,
involved in an accident where the cause of the accident is the
negligence of the driver of any offending vehicle. For succeeding in
a claim under Section 166 of the Act, proof of negligence of the
driver of the vehicle is essential. However, under Section 163A of
the Act, the claimant is not required to prove the negligence on the
part of the driver of the offending vehicle. Section 166 of the Act
takes care of claims pertaining to all types of injuries, death and
property damage. Section 163A has been enacted notwithstanding
the provisions of Section 166 of the Act and claims under Section
163A is limited only to circumstances mentioned therein, i.e. the
death or permanent disablement. In an application under Section
166 of the Act, the Tribunal is to hold an enquiry into the claim and
make an Award determining the amount of compensation which
appears to it to be ''just'' subject to the provisions of Section 162 of
the Act. Compensation in a claim under Section 163A is to be
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determined with reference to the second schedule of the Act. This
special provision for paying compensation on structural formula was
introduced by the legislature as a social security scheme to avoid
long drawn litigation. As Section 163A and Section 166 of the Act
are mutually exclusive and independent of each other, envisaging
two different situations, it has been held that the Tribunal cannot suo
motu convert a claim petition under Section 166 of the Act to one
under Section 163A. Adoption of such a course by the Tribunal was
held to be impermissible. In the said case, reference was also made
to the dictum of the Apex Court in Deepal Girishbhai Soni v.
United India Insurance Company Limited, 2004 KHC 595 :
(2004)5 SCC 385 wherein it has been held that having regard to the
fact that Section 166 of the Act provides for a complete machinery
for laying a claim on fault liability, the question of giving an option
to the claimants to pursue their claims either under Section 163A or
Section 166 of the Act does not arise. Remedy for payment of
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compensation both under Sections 163A and 166 of the Act, being
final and independent of each other as statutorily provided, claimant
cannot pursue his remedies thereunder simultaneously. One, thus,
must opt/elect to go either for a proceeding under Section 163A or
under Section 166 of the Act, but not under both.
12. In the light of the aforesaid dictums, I find that the
Tribunal went wrong in suo motu converting an application under
Section 166 of the Act to one under Section 163A. Yet another
mistake that has committed by the Tribunal is awarding
compensation as per the amended Section 163A of the Act. The
incident in this case took place on 30/05/2015. The amended
provisions of Section 163A came into effect only from 22/05/2018.
Therefore, even assuming that Section 163A was applicable, the
amended provisions could not have been invoked in this case.
In the result, the appeal is allowed and the impugned Award is
modified by which an amount of ₹1,44,000/- awarded under Section
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166(1)(c) of the Act as compensation to the claim petitioners is
affirmed.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S. SUDHA
JUDGE
ami/
