Kerala High Court

The New India Assurance Company Ltd vs C.Mohan Das on 26 June, 2025

                                                          2025:KER:45672
MACA Nos.1961/2014 & 2248/2015
                                     ..1..

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

            THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

         THURSDAY, THE 26TH DAY OF JUNE 2025 / 5TH ASHADHA, 1947

                           MACA NO. 1961 OF 2014

  OPMV NO.40 OF 2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD

APPELLANT/2ND RESPONDENT:

             THE NEW INDIA ASSURANCE COMPANY LTD.
             NO.43,PDC BANK, BUILDING, JPO ROAD,SULTHANPET,PALAKKAD
             DISTRICT,REPRESESNTED BY ITS MANAGER, REGIONAL OFFICE,
             M.G.ROAD,ERNAKULAM


             BY ADV SHRI.SEBASTIAN VARGHESE(K/141/2000)


RESPONDENTS/CLAIMANT & 1ST RESPONDENT:

     1       C.MOHAN DAS, AGED 44 YEARS
             S/O.LATE CHAMU,CHEMBALODE HOUSE, OPP.BPL SANYO,
             CHANDRANAGAR, PALAKKAD DISTRICT 678 007

     2       M.P.INDIRA, AGED 38 YEARS
             W/O.MOHANDAS,7/406,KURUPATH HOUSE, MARUTHA
             ROAD,PALAKKAD DISTRICT,678 007


             BY ADVS.
             SRI.BINOY VASUDEVAN
             SRI.R.MANIKANTAN



      THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 19.06.2025, ALONG WITH MACA.2248/2015, THE COURT ON 26.06.2025
DELIVERED THE FOLLOWING:
                                                           2025:KER:45672
MACA Nos.1961/2014 & 2248/2015
                                     ..2..


                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

            THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

         THURSDAY, THE 26TH DAY OF JUNE 2025 / 5TH ASHADHA, 1947

                           MACA NO. 2248 OF 2015

  OPMV NO.40 OF 2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD

APPELLANT/PETITIONER:

             C.MOHAD DAS, AGED 51 YEARS
             S/O.LATE CHAMU, RESIDING AT CHEMBALODE HOUSE, OPP.BPL
             SANYO, CHANDRANAGAR, PALAKKAD DISTRICT.


             BY ADVS.
             SRI.BINOY VASUDEVAN
             SMT.P.G.BABITHA
             SRI.R.MANIKANTAN



RESPONDENTS/RESPONDENTS:

     1       M.P.INDIRA, AGED 45 YEARS
             W/O.MOHANDAS, RESIDING AT 7/406, KURUPATH HOUSE,
             MARUTHAROAD, PALAKKAD DISTRICT-678102

     2       THE NEW INDIA ASSURANCE CO.LTD.
             (WRONGLY TYPED IN THE CAUSE TITLE AS THE INDIA
             ASSURANCE CO.LTD.)NO.43, PDC BANK, BUILDING, HPO ROAD,
             SULTHANPET, PALAKKAD DISTRICT-678105


             BY ADV SHRI.SEBASTIAN VARGHESE(K/141/2000)


      THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 19.06.2025, ALONG WITH MACA.1961/2014, THE COURT ON 26.06.2025
DELIVERED THE FOLLOWING:
                                                               2025:KER:45672
MACA Nos.1961/2014 & 2248/2015
                                     ..3..




                                 JUDGMENT

These appeals arose from the impugned award dated

04.11.2013 in OP(MV) No.40 of 2008 of the Motor Accidents Claims

Tribunal, Palakkad. MACA No. 1961 of 2014 is filed by the insurer

challenging the liability as well as quantum of compensation awarded by

the tribunal. MACA No.2248 of 2015 is filed by the claimant challenging

the finding of 50% contributory negligence on his part and also, the

quantum of compensation awarded by the tribunal.

2. Since the parties and the cause of action are the same,

the appeals are heard together and are being disposed of by this

judgment. For brevity, the parties are referred to as they are arrayed

before the tribunal.

3. The case of the claimant is that on 06.06.2005, while

he was entering the road from a petrol pump on his motorcycle bearing

Reg.No.KL-09-H-4951, another motorcycle hit against the motorcycle

ridden by the claimant, whereby he sustained serious injuries. He

approached the tribunal claiming compensation under Section 163A of

the Motor Vehicles Act.

2025:KER:45672 MACA Nos.1961/2014 & 2248/2015 ..4..

4. The first respondent, who is the owner of the

motorcycle bearing Reg.No.KL-09-H-4951, remained ex parte before the

tribunal. The 2nd respondent insurer filed a written statement,

admitting the policy coverage for the offending vehicle, but disputing

the liability and quantum of compensation claimed. Before the tribunal,

PW1 was examined and Exts.A1 to A15 were marked on the side of the

claimant & Ext.B1 were marked on the side of the respondent. The

tribunal, after analysing the pleadings and materials on record, found

50% negligence on the part of the claimant in causing the accident and

assessed a total compensation of ₹1,97,687/- under different heads and

awarded 50% of the assessed compensation, i.e., ₹98,844/-, with interest

@ 9% per annum from the date of petition till realization, against the

second respondent insurer of the motorcycle bearing Reg.No.KL-09-H-

4951. Challenging the impugned award, the claimant as well as the

insurer has come up in appeal.

5. I have heard the learned Standing Counsel for the

second respondent insurer and the learned counsel for the claimant.

6. The learned Standing Counsel for the insurer

submitted that the claim petition was filed under Section 163A of the

Motor Vehicles Act (for short, "the Act") and the policy was an 'act only'

policy. It is further submitted that the claimant was the rider of the 2025:KER:45672 MACA Nos.1961/2014 & 2248/2015 ..5..

motorcycle bearing Reg.No.KL-09-H-4951; and his wife, who was pillion

riding on the said motorcycle, is the owner; and since the claim is under

Section 163A of the Act, the claim payable is only to third parties. It is

pointed out that the accident occurred due to collision of two

motorcycles and A charge and B charge were also framed against the

riders, including the claimant. Thus, placing reliance on the judgment of

the apex court in National Insurance Co. Ltd. v. Sinitha & others [2012

(2) SCC 356], the learned Standing Counsel argued that the claimant,

who is charge sheeted, is not entitled for compensation.

7. The learned counsel for the claimant pointed out that

the decision in Sinitha (supra) is overruled now in United India

Insurance Co. Ltd. v. Sunil Kumar [2017 (4) KLT 1093 (SC)]. In Sunil

Kumar (supra), it was held that grant of compensation under Section

163A of the Act on the basis of structured formula is in the nature of a

final award and the adjudication thereunder is required to be made

without any requirement of any proof of negligence of the driver/owner

of the vehicles involved in the accident.

8. The main ground raised in the appeal by the insurer is

regarding negligence on the part of the rider of the motorcycle. In a

claim petition filed under Section 163A of the Act, negligence cannot be

looked into, and hence, the main issue raised by the insurer in appeal 2025:KER:45672 MACA Nos.1961/2014 & 2248/2015 ..6..

fails in view of Sunil Kumar (supra).

9. From the materials on board, the original policy has

not been produced so as to enable this Court to verify the nature of the

policy. Since the decision in Sinitha (supra) is overruled in Sunil Kumar

(supra) and since the original policy has not been produced, I find that

the grounds raised by the insurer as regards the maintainability of the

claim petition will not stand.

10. As regards the quantum of compensation awarded by

the tribunal, the learned Standing Counsel for the insurer submitted

that the tribunal, while awarding compensation, granted excess

amounts and the compensation awarded is much more than the

structured formula. On a perusal of the award passed, I find that the

amount awarded by the tribunal is not as per the structured formula

and the tribunal has gone beyond and awarded compensation.

Therefore, I deem it appropriate to modify the impugned award,

re-assessing the compensation payable to the claimant.

11. Accordingly, the compensation payable to the claimant

is reassessed as follows:

11.1. Notional income - The learned counsel for the claimant

submits that the claimant was 44 years at the time of the accident and 2025:KER:45672 MACA Nos.1961/2014 & 2248/2015 ..7..

he was a salesman in a garment shop. Considering the fact that the

claim is under Section 163A of the Act, following the structured formula,

I deem it appropriate to notionally fix the monthly income of the

claimant at ₹3,300/-.

11.2. Loss of earnings - The learned counsel for the claimant

submits that the claimant could not go to work for almost eight months.

From the impugned award, it is seen that claimant sustained

comminuted fracture of upper end of tibia and fibula and right iliac and

gross medial instability of right knee. Considering the nature of injuries

sustained and the age of the claimant, I am of the opinion that six

months can be taken for awarding compensation for loss of earnings.

Accordingly, the claimant will be entitled to get a total compensation of

₹19,800/- (3300 x 6) under this head.

11.3. Pain and suffering - Considering the injuries sustained

by the claimant and the sufferings that he had undergone, I am inclined

to grant an amount of ₹5,000/- as total compensation towards pain and

suffering. Thus, the claimant will be entitled to get an amount of

₹5,000/- as compensation towards pain and suffering.

11.4. Medical Expenses - Considering the injuries sustained

by the claimant, following the schedule in Section 163A of the Act, I 2025:KER:45672 MACA Nos.1961/2014 & 2248/2015 ..8..

award a compensation of ₹15,000/- towards medical expenses.

11.5. Permanent disability - As per Ext.A14 certificate, the

claimant is assessed to have 10% whole body disability and since the

claimant was 44 years old at the time of the accident, the multiplier to

be adopted is '14'. The monthly income of the claimant is also fixed at

₹3,300/-. Thus, applying the above standards, the claimant will be

entitled to get a total compensation of ₹55,440/- (3300 x 12 x 14 x 10%)

towards permanent disability.

12. The tabulation of the compensation is as follows:

Sl.

 No.             Head of Claim               Amount awarded in appeal
                                                       (in ₹)
 1.    Loss of earnings                               19800
 2.    Pain and sufferings                             5000
 3.    Medical expenses                               15000
 4.    Permanent disability                           55440
       Total                                          95240

Accordingly, the appeals are allowed in part and the impugned

award is modified, awarding the claimant a total compensation of

₹95,240/- (Rupees ninety five thousand two hundred and forty only) with

interest @ 9% per annum from the date of petition till realization and

proportionate costs. The insurer shall deposit the said amount together 2025:KER:45672 MACA Nos.1961/2014 & 2248/2015 ..9..

with interest and costs within a period of two months from the date of

receipt of a certified copy of this judgment. The claimant shall furnish

copies of the PAN Card, AADHAAR Card and bank details before the

insurer within a period of one month so as to enable the insurance

company to make the deposit as ordered above. In case of failure to

furnish details as above, it shall be open for the insurer to deposit the

said amount before the tribunal. Upon such deposit being made, the

entire amount shall be disbursed to the claimant at the earliest in

accordance with law. However, it is made clear that the enhanced

compensation will not carry interest for the period of delay of 402 days

in filing MACA No.2248 of 2015.