Kerala High Court
New India Assurance Co.Ltd vs P.Vijayan on 25 September, 2018
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
TUESDAY ,THE 25TH DAY OF SEPTEMBER 2018 / 3RD ASWINA, 1940
MACA.No. 789 of 2012
AGAINST THE AWARD IN OPMV 416/2011 of M.A.C.T.,KOZHIKODE
DATED 08.12.2011
APPELLANT/S:
NEW INDIA ASSURANCE CO.LTD
DIVISIONAL OFFICE-III, 2ND FLOOR, REMA PLAZA, NEAR
AYYAPPAN COIL, S.S.COIL ROAD, THAMPANOOR, REPRESENTED
BY THE DULY CONSTITUTED ATTORNEY,
(M.G.RAMACHANDRAN NAIR), REGIONAL OFFICE,
KANDAMKULATHY TOWERS, M.G.ROAD, KOCHI-682011.
BY ADV. SRI.M.JACOB MURICKAN
RESPONDENT/S:
1 P.VIJAYAN
46/223, 'HARIPRASADAM', AMBALATHAZHAM PARAMBU,
P.O.KOTTOOLI, KOZHIKODE DISTRICT, PIN-673016.
2 T.SANTHAKUMARI
W/O. P.VIJAYAN, 46/223, 'HARIPRASADAM',
AMBALATHAZHAM PARAMBU, P.O.KOTTOOLI,
KOZHIKODE DISTRICT, PIN-673016.
3 P.PRASAD,S/O. P.VIJAYAN, 46/223, 'HARIPRASADAM',
AMBALATHAZHAM PARAMBU, P.O.KOTTOOLI,
KOZHIKODE DISTRICT, PIN-673016.
4 THE MANAGING DIRECTOR
KERALA STATE ROAD TRANSPORT CORPORATION,
THAMPANOOR P.O., THIRUVANANTHAPURAM, PIN-695001.
5 LEGIN M.,S/O. LAKSHMANAN, MADAKARA HOUSE,
AZHIKODE SOUTH P.O., KANNUR DISTRICT, PIN-670009.
BY ADV. SRI.AVM.SALAHUDIN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 25.09.2018, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2
MACA.No. 789 of 2012
JUDGMENT
The appeal is against the award dated 08.12.2011 passed by the Motor Accident Tribunal, Kozhikode in OP(MV) No.416 of 2011. The main challenge raised by the appellant/Insurance Company is with reference to the fixation of negligence and also the amounts awarded under different heads, despite the fact that the claim petition was preferred Section 163A of the Motor Vehicles Act, 1988.
2. The learned counsel appearing for the appellant/Insurance Company submits that the accident was due to a collision between the motor cycle ridden by the deceased and the bus insured by the appellant. Despite substantiating the fact that the accident was because of the negligence on the part of the deceased himself, huge amounts have been awarded under various heads, which is sought to be set aside/scaled down in this appeal.
3. Obviously, the challenge has been raised by the appellant, placing reliance on the verdict passed by the 3 MACA.No. 789 of 2012 Apex Court in National Insurance Co. Ltd. Vs. Sinitha [2011 (4) KLT 821], holding that, even though it is not necessary for the claimant to plead or to prove negligence in a claim under Section 163A ; once it is specifically pleaded and established, it is open for the insurer to avoid the liability, particularly in view of the conspicuous absence of a clause similar to sub- section (4) of Section 140 under Section 163A of the Act. The said dictum was doubted by a subsequent Bench, leading to reference to a Larger Bench. The issue has now been resolved by the Larger Bench as per the dictum in United India Insurance Co.Ltd. v. Sunil Kumar and Another [2017 KHC 5644] holding that, it is never open for the Insurance Company to plead or raise a ground of defence, with reference to the negligence in a claim under Section 163A. In the said circumstance, the finding rendered by the Tribunal does not warrant any interference under that head.
4. However, coming to the quantum of compensation awarded by the Tribunal, the learned counsel submits that the Tribunal had gone beyond the track laid down in Section 163A and the Second Schedule. The amounts awarded by the Tribunal under the different heads are 4 MACA.No. 789 of 2012 given below:-
Sl. The compensation claimed Amount claimed Amount allowed No. under different heads ` ` 1 Transport to hospital 2,000/- 1,000/- 2 Damages to clothings and 2000/- 500/-
articles 3 Treatment expenses 6,000/- 1,000/- 4 Funeral expenses 5,000/- 5,000/- 5 Loss of estate 30,000/- 10,000/- 6 Pain and sufferings to 50,000/- 10,000/-
the victim 7 Loss of love and 30,000/- 10,000/-
affection 8 Loss of dependency 4,50,000/- 3,24,000/-
(3,000x12x18/2) Total 6,61,500/-
Going by the provision, ie; Section 163A and the Second Schedule, only the amounts as stipulated therein alone can be awarded. This being the position, the amounts awarded by the Tribunal towards transport to hospital (Rs.1,000), damage to clothing and articles (Rs.500), towards pain and sufferings (Rs.10,000/-) and towards loss of love and affection (Rs.10,000/-) cannot be awarded. Similarly, in respect of funeral expenses, the maximum amount payable under Section 163A is only Rs.2,000/- whereas the Tribunal has awarded Rs.5,000/- and hence there is an excess to the tune of Rs.3,000/-. In respect of the head 'loss of estate', the Tribunal 5 MACA.No. 789 of 2012 has awarded Rs.10,000/-, whereas the maximum amount payable under this head, as per Section 163A-Second Schedule, is of Rs.2,500/-, thus resulting in an excess of Rs.7,500/-.
5. In the above circumstances, the compensation awarded by the Tribunal is in excess of the actual amount payable as per the Second Schedule to Section 163A of the Act; which requires to be deducted by Rs.32,000/-[Rs.1,000+ 500+ 10,000+ 10,000+ 3,000 + 7,500]. At the same time, it is to be noted that the Tribunal has deducted 50% of the income of the deceased towards personal expenses and only the remaining extent of 50% has been reckoned as the contribution to the family. Going by the strict parameters of Section 163A and the Second Schedule, as 1/3rd could have been deducted towards personal expenses and hence more amount could be granted as compensation for loss of dependency (which will exceed the amount of Rs.32,000/- to be deducted as mentioned above towards the excess already awarded). No appeal or cross obligation has been preferred by the claimants and hence this Court does not proceed to rework the figures under the above head. Considering the totality of the facts and circumstances, 6 MACA.No. 789 of 2012 this is not a fit case where the Award is to be interdicted or modified at the instance of the appellant/insurer.
Appeal fails. It stands dismissed accordingly.
Sd/-
P.R.RAMACHANDRA MENON JUDGE SB/28/09/2018 // true copy // P.A to Judge