Kerala High Court
The National Insurance Co. Ltd vs Aravindakshan on 27 December, 2011
Author: P.R. Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
WEDNESDAY, THE 16TH DAY OF MARCH 2016/26TH PHALGUNA, 1937
MACA.No. 134 of 2013 ()
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AGAINST THE AWARD IN OPMV 199/2009 of M.A.C.T.,KOTTAYAM DATED 27-12-2011
APPELLANT/ THIRD RESPONDENT:
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THE NATIONAL INSURANCE CO. LTD.
KOTTAYAM, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, 2ND
FLOOR, OMANA BUILDING, M.G ROAD, KOCHI 35.
BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)
RESPONDENT(S):
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1. ARAVINDAKSHAN,
OLIKKARAYIL (H)
MAVELLOOR P.O., VELLOOR-686 003.
2. RETNAMMA,
OLIKKARAYIL (H)
MAVELLOOR P.O., VELLOOR-686 003.
BY ADV. SRI.M.P.MADHAVANKUTTY
BY ADV. SRI.GOKUL DAS V.V.H.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON 16-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
(CR)
P.R. RAMACHANDRA MENON
&
ANIL K. NARENDRAN, JJ.
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M.A.C.A.No.134 OF 2013
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Dated this the 16th March , 2016
JUDGMENT
P.R. Ramachandra Menon, J.
The appeal has been preferred by the Insurance Company being aggrieved of the course and proceedings pursued by the Tribunal, whereby compensation to the tune of Rs.4,41,000/- has been awarded in respect of the death of a person aged 27 years, who was riding a motor cycle, which came to be collided with a car. The case projected in the appeal is that, no such award could have been passed by the Tribunal in so far as the claim petition was preferred under Section 163-A of the Motor Vehicles Act and the appeal itself was not maintainable for the reason that the monthly income fixed by the Tribunal was Rs.5,000/-; whereas the appeal to be maintainable under Section 163A, the annual income should have been within the limit of Rs.40,000/-.
2. The gist of the factual matrix is that, while the deceased M.A.C.A.No.134 OF 2013 2 was riding a motor cycle on 16.11.2008, a Maruti Alto car bearing No.KL.5/R 655 driven by the first respondent, owned by the second respondent and insured by the third respondent knocked him down, causing fatal injuries, leading to his death. This was sought to be compensated by filing a claim petition. The evidence adduced before the Tribunal consists of Exts.A1 to A9, and Ext.B1 copy of the wound certificate issued from the Medical College Hospital, Kottayam. Based on the evidence on record, the Tribunal arrived at a finding that the accident was because of negligence solely attributable to the driver of the car and proceeded to fix the quantum of compensation accordingly. It was in the said course, that the monthly income of the deceased was reckoned as Rs.5000/-, thus fixing the total annual income as Rs.60000/-. Awarding amounts under different heads, the total compensation payable was fixed as Rs.4,41,000/-, which was directed to be satisfied with interest at the rate of 7.5% from the date of petition till realisation. This in turn is under challenge in this appeal.
3. Heard both the sides.
M.A.C.A.No.134 OF 2013 3
4. The submission made by the learned Sr. Counsel for the appellant is that the benefit of Section 163A under the 2nd Schedule is intended only for the particular class/group, whose maximum income is upto Rs.40,000/- per annum. It is also pointed out that the annual income, if higher, cannot be restricted by fixing a cap or ceiling, to claim the benefit under Section 163A of the Motor Vehicles Act, where there is no burden upon the party to plead or prove negligence. The scheme /procedure contemplated is to provide the benefit by way of a 'structured formula' to the deserving lot and that alone. This Court finds considerable force in the said submission. The scope of the said provision (Section 163A) has been explained by the Supreme Court as per the decision in 2004 (2) KLT 395(SC) (Deepal Girishbhai Soni vs. United India Insurance Co. Ltd). The relevant portion as discussed in paragraph 67 is in the following terms:
"67. We, therefore, are of the opinion that Kodola (supra) has correctly been decided. However, we do not agree with the findings in Kodola (supra) that if a person invokes provisions of S.163-A, the annual income of M.A.C.A.No.134 OF 2013 4 Rs.40,000/- per annual shall be treated as a cap. In our opinion, the proceedings under S.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."
5. From the above, it is clear that the parties before the Tribunal cannot seek to fix a cap or ceiling to the monthly income, so as to bring it down, to be dealt with under Section 163A, if the actual income is higher than the maximum limit. In the instant case, based on the materials on record, the Tribunal has fixed the monthly income as Rs.5,000/- i.e., with the annual income of Rs.60,000/-. As such, the claim is not actually maintainable under Section 163A.
6. A question arises as to the further course of action. If the claim is not maintainable under Section 163A, the party is still at liberty to have the negligence on the part of the concerned party pleaded and proved, seeking to sustain the claim based on the 'principle of fault', in terms of Section 166 of the Motor Vehicles Act. Whether the matter requires to be M.A.C.A.No.134 OF 2013 5 remanded is the point to be considered.
7. 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 M.A.C.A.No.134 OF 2013 6 turn fixing the liability upon the shoulders of the Insurance Company, no other purpose is to be served by causing such a remand.
8. In the above circumstances, this Court finds that though the claim petition was not maintainable under Section 163A, the Tribunal has considered the same on the 'principle of fault' under Section 166 and has passed an Award, fixing the liability upon the concerned respondents, which warrants no interference. The appeal fails. It stands dismissed accordingly.
P.R. RAMACHANDRA MENON, JUDGE ANIL K. NARENDRAN, JUDGE lk