IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 14TH OCTOBER 2009 / 22ND ASWINA 1931 MACA.No. 725 of 2009(A) ---------------------- OPMV.252/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT(S): 2ND RESPONDENT --------------------------------------- UNITED INDIA INSURANCE CO.LTD., PONKUNNAM. BY ADV. SRI.P.V.JYOTHI PRASAD RESPONDENT(S): CLAIMANTS & IST RESPONDENT ---------------------------------------------------------- 1. SARADHA,W/O.UTHAMAN, PUTHANPURAKKAL HOUSE, VANDAMPATHAL P.O. 2. USHA,D/O.UTHAMAN, -DO- -DO- 3. PRAMEELA, -DO- -DO- 4. SUJATHA, -DO- -DO- 5. SAJI MATHEW,S/O.K.T.MATHEW, KALAPPURAKAL HOUSE,POOVARANI, PAIKA P.O.,PALA. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 725 OF 2009 = = = = = = = = = = = = = = = Dated this the 14th day of October, 2009. J U D G M E N T This appeal is preferred by the insurance company against the award of the Motor Accidents Claims Tribunal, Pala in O.P.(MV)252/07. The petitioners are the wife and children of one Uthaman who while travelling as a pillion rider in a motorcycle met with an accident on account of the collision between the bus and the motorcycle resulting in death of him. 2. The petition is filed u/s 163A of the M.V.Act by the claimants. The insurance company strongly contends for the position that the accident had taken place on account of the negligence of he rider of the motorcycle and therefore the claim petition against the owner, driver and the insurance company of the bus is not maintainable and therefore the claim has to be disallowed. I am afraid that the said contention cannot be accepted for the following reasons. M.A.C.A. 725 OF 2009 -:2:- 3. S.163A just like S.140 of the M.V.Act is a specifically carved out piece of legislation which do away with the question of negligence in other cases coming u/s 166 of the M.V.Act. Or in other words S.163A arises in a case where the permanent disability or death is occurred on account of the use of a motor vehicle. So the first satisfaction should be that it had arisen out of the use of a motor vehicle. S.163A(2) specifically states that, “If any claim for compensation under Sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.” Or in other words S.163A(2) specifically mandates that the negligence is outside the purview of consideration under S.163A cases. Then what will be the impact of S.163A(1) and (2) is the matter to be decided. The question of junction of the driver and the owner becomes inevitable in cases M.A.C.A. 725 OF 2009 -:3:- where there a the question of negligence in dispute. In cases arising under 166 of the M.V.Act the driver is primarily liable and the owner is made vicariously liable for the said act of the driver and the insurance company is directed to indemnify the insured on the basis of the contract. So far as S.163A is concerned it is confined to the owner or the authorised insurer. So if there is a valid policy the owner has to indemnify the insured. Now as far as this case is concerned collision has taken place between the motorcycle and a bus. So it had arisen out of the use of the two motor vehicles. One of the vehicle is a bus. Since the question of negligence does not arise for consideration as the bus is the one of the vehicles involved in the accident that had caused the accident, necessarily in a petition u/s 163A liability can be affixed on the owner and insurer of the bus. This is what is precisely done by the Tribunal and therefore I cannot accept the argument of the learned counsel for the insurance company. M.A.C.A. 725 OF 2009 -:4:- So far as the quantum is concerned the learned Tribunal has only followed schedule 2 of the M.V.Act to arrive at a figure fixing the compensation strictly in accordance with the schedule. Therefore the quantum also does not suffer from any infirmity and therefore the appeal is devoid of merits and it is dismissed. M.N. KRISHNAN, JUDGE. ul/-