IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1699 of 2006()
1. VINTOY, S/O. VINCENT, AGED 20 YEARS,
... Petitioner
Vs
1. M/S. NATIONAL INSURANCE CO. LTD.,
... Respondent
For Petitioner :SRI.GRASHIOUS KURIAKOSE
For Respondent :SRI.E.M.JOSEPH(B/O)
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :20/11/2008
O R D E R
J.B.KOSHY & THOMAS P. JOSEPH, JJ.
================================
M.F.A.No.993 of 2001 - D
and
Cross Objection 82 of 2004
in
M.F.A.No.993 of 2001 - D
and
M.A.C.A.No.1699 of 2006 - D
===============================
Dated this the 20th day of November, 2008.
J U D G M E N T
KOSHY, J.
Husband of the 1st petitioner sustained injuries in a motor
accident on 24.1.1997. He succumbed to the injuries on
27.1.1997. His wife and three minor children filed application for
compensation under Section 163-A of the Act. The insurance
company though admitted coverage of insurance policy,
contended that the accident occurred due to the negligence of the
deceased himself and therefore, no compensation is payable.
The motor cycle which the deceased was riding capsized and
death was caused. Merely because of the fact that the motor
cycle capsized and death was caused, it cannot be said that the
deceased was negligent. There can be speedy crossing of the
road by an animal, skidding etc. and the vehicle capsized. Since
the rider of the motor cycle died, he cannot come and give
evidence regarding the cause of accident. There is no
independent witness regarding the accident. So, we cannot
M.A.C.A.No.1699 of 2006 – D
and
M.F.A.No.993 of 2001 – D
2
presume negligence of the deceased. Under Section 163A,
negligence need not also be proved. In this connection, we refer to
the decision of the Full Bench decision of this Court in National
Insurance Co. Ltd. v. Malathi C. Salian (2003(3) KLT 460 FB). A
similar matter was considered by this Court in Oriental
Insurance Company v. Smt.Baby and Others (2008(4) KHC
103). It was held as follows:
“The need for Section 163-A was explained by
the Hon’ble Supreme Court in Oriental Insurance Co.
v. Hansrajbhai (2001(5) SCC 175). The Supreme
Court in the above case held that if the Insurance
Company is permitted to prove that insured is not at
fall, though his vehicle is involved then the whole
purpose of Legislature in introducing Section 163-A
will be frustrated. It was further held that if the
insurance company is permitted to prove the
negligence even of the victim or no negligence of the
insured, then the purpose for which the Legislature
introduced Section 163-A would be frustrated.
Sections 140 and 163-A are based on strict liability
principle formulated in Rylands v. Fletcher (1861-73
All ER (Reprint) 1). A joint reading of sections would
show that for death or permanent disablement
suffered due to accident arising out of the use of
motor vehicles, the claimants need not prove the
wrongful act or neglect or default of anyone. So,
third party need not be involved in this case. The
Apex Court in Kaushnuma Begum and Others v. New
India Assurance Co. Ltd., (AIR 2001 SC 485)
awarded compensation where the accident occurred
due to the bursting of tyres. A Full Bench of this
Court has considered the matter in detail in National
Insurance Co. Ltd. v. Malathi C. Salian (2003 (3) KLT
460 (FB))”.
M.A.C.A.No.1699 of 2006 – D
and
M.F.A.No.993 of 2001 – D
3
2. In the above referred Division Bench Decision,
difference between claims under Sections 166, 163-A and 140 is
also mentioned. In this case, since the appellants filed claim
petition under 163-A, they did not adduce any evidence regarding
the accident, as negligence need not be proved. In fact, no
evidence was adduced by the insurance company to prove that
the deceased was negligent. They only produced the policy. In
the above circumstances, we are of the opinion that the Tribunal
ought to have considered the claim for compensation based on
Section 163-A. Against the award of the Motor Accidents Claims
Tribunal, the insurance company filed the appeal M.F.A.No.993 of
2001. According to the appellant when a claim petition was filed
under Section 163-A, the Tribunal cannot award compensation
under Section 140. The claimants did not file any application
under Section 140. It is well settled law that when claim petition
is filed under Section 163-A, compensation cannot be granted
under Section 140 as both are entirely different. It is true that,
after granting compensation under Section 140, Section 166 will
lie. The Tribunal went wrong in awarding compensation under
Section 140. Therefore, we allow the appeal preferred by the
M.A.C.A.No.1699 of 2006 – D
and
M.F.A.No.993 of 2001 – D
4
insurance company so far as the award allowed under Section
140.
3. One of the claimants filed cross objection 82 of 2004
and another claimant, who at the time of accident was minor son,
on becoming major filed the appeal as M.A.C.A.No.1699 of 2006.
We are of the opinion that the Tribunal went in wrong in not
awarding compensation under Section 163-A, for the reasons
already stated. In the above circumstances, the matter is
remanded to the Tribunal. Both the appeal and cross objection
are allowed to the above extent. We are of the opinion that the
Tribunal ought to have granted compensation under Section 163-
A. It is true that if the owner (insurer) himself was a rider, the
claim under Section 163-A will not lie against insurance company
as essentially the liability is on the owner of the vehicle. Here,
the deceased was not the owner of the vehicle and the insurance
company is liable to deposit the amount under Section 163-A.
For calculating compensation, monthly income of the claimants at
the time of filing the application and age of the accident victim
have to be found out. If the annual income of the deceased was
more than Rs.40,000/-, claim under Section 163-A will not lie.
M.A.C.A.No.1699 of 2006 – D
and
M.F.A.No.993 of 2001 – D
5
But the income claimed was only Rs.3,000/- per month
(Rs.36,000/- per year). Both sides are allowed to adduce
evidence only regarding age of the victim and income so as to
calculate compensation payable to the claimants. The parties are
directed to appear before the Tribunal on 3.1.2009.
Both appeals and cross objection are allowed to the above
extent.
J.B.KOSHY, JUDGE
THOMAS P. JOSEPH, JUDGE
bkn/-