High Court Kerala High Court

Joy vs M.M.Joseph on 22 October, 2009

Kerala High Court
Joy vs M.M.Joseph on 22 October, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 1821 of 2005()


1. JOY, S/O.VARGHESE,
                      ...  Petitioner

                        Vs



1. M.M.JOSEPH, S/O.M.U.MATHEW,
                       ...       Respondent

2. JOSE, S/O.DEVASSY,

3. MANAGER, UNITED INDIA INSURANCE CO.

4. K.S.NABEESA, W/O.M.A.MOIDEEN,

5. M.ABDUL AZIZ, S/O.MUTHU RAWATHER,

                For Petitioner  :SRI.P.V.BABY

                For Respondent  :SRI.J.MATHAPPAN

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :22/10/2009

 O R D E R
                      M.N.KRISHNAN, J.
                   ...........................................
                  M.A.C.A.NO.1821 OF 2005
                  .............................................
           Dated this the 22nd day of October, 2009

                          J U D G M E N T

This is an appeal preferred against the award of the

claims Tribunal, Irinjalakuda in OP(MV)No.860/1999. The

said petition was tried along with the other cases and an

award has been passed under Section 163 A directing

compensation to be paid by respondents 4 and 5 in all the

cases. The question that arises for determination is whether

the Tribunal was justified in directing compensation to be

paid by the owner and the driver of the lorry involved in the

accident. The facts of the case would show that, the

allegation is that, a lorry after overtaking another vehicle,

hit on an auto rickshaw which lost its control on account of

the impact and hit on the pedestrians thereby resulting in

injuries to them. Originally, the claim petition was filed

under Section 166 of the Motor Vehicles Act and it was then

amended as one under Section 163 A. The Tribunal found

that the accident was taken on account of the negligence of

the lorry driver and decided to order those persons to give

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M.A.C.A.NO.1821 OF 2005

compensation. The Tribunal was totally aware of the fact

that the question of negligence was not a matter for

consideration in a petition under Section 163 A of the Motor

Vehicles Act. So, the decision of the Tribunal on the basis

that the lorry driver was responsible for the accident and

thereby the driver and the owner of the lorry is bound to pay

the compensation may not be a correct order under Section

163 A of the Motor Vehicles Act. The very purport of Section

163 A of the Motor Vehicles Act is to avoid the finding on

the question of negligence and to restrict the class of

people involved in the accident whose annual income does

not exceed Rs.40,000/= and it is the social benefit

conferred upon the accidental victim who does not have

much financial resources. Another object of the same is to

avoid protraction of the litigation on the question of

negligence. This Court did have an opportunity to consider

the question in the decision reported in New India

Assurance Co. Ltd. v. Vappu and Others (2007 (3) ACJ

1511) (I was a party to the decision) therein the Division

Bench was made it clear that there was no question of

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M.A.C.A.NO.1821 OF 2005

apportioning the question of negligence between the joint

tortfeasors in order to apportion their inter se liability in an

application under Section 163 A of the Motor Vehicles Act.

Section 163 A only contemplates a situation that accident

should have arisen out of the use of a motor vehicle.

2. Therefore, the finding of the Tribunal is set aside and

the matter is remitted back to the Tribunal to consider the

question in the light of the principles laid down in the

decision referred to above and also any subsequent decision,

if any, and then dispose of the matter in accordance with

law. The parties are directed to appear before the Tribunal

on 1.12.2009.

Disposed of accordingly.

M.N.KRISHNAN, JUDGE

cl

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