IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 MACA.No. 66 of 2007(B) ---------------------- OPMV.1122/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PARAVUR .................... APPELLANT/3RD RESPONDENT: ------------------------------------------------- UNITED INDIA INSURANCE COMPANY LTD., REP. BY ITS ASST.MANAGER, REGIONAL OFFICE, SHARANYA, HOSPITAL ROAD, KOCHI-11. BY ADV. SRI.P.R.RAMACHANDRA MENON RESPONDENT(S): PETITIONER & RESPONDENT 1 & 2 RESPECTIVELY: -------------------------------------------------------------------------------------------------------- 1. A.K. RAMESH, AGED ABOUT 31 YEARS, S/O. KRISHNANKUTTY, AIKKATTUKUZHI HOUSE, WEST KADUNGALLUR, MUPPATHADOM P.O., N.PARAVUR TALUK, ERNAKULAM DIST. 2. K. SANKARAN, PULUKUTHIPARAMBIL HOUSE, MUPPATHADOM P.O., ALUVA, ERNAKULAM DIST. 3. SATHEESHKUMAR, S/O.THANKAPPAN PILLAI, AIKKATTUKUZHI HOUSE -DO-. ADV. SRI.G.BALAMURALEEDHARAN (PARAVUR) FOR R1 SRI.MATHEWS V.JACOB (PARAVUR) FOR R1 SRI.N.T.NANDAKUMAR (PARAVUR) FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON I.A.NO.64/2007 IN M.A.C.A.NO.66/2007 DISMISSED 3/12/2008 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J ----------------------- M.A.C.A.No. 66 OF 2007 --------------------------------- Dated this the 3rd day of December, 2008 JUDGMENT This appeal is preferred against the award of the Motor Accident Claims Tribunal, N. Paravur in O.P.(MV) No.1122/2002. Though the original claim was filed under Section 166 of the Motor Vehicles Act subsequently it has been amended under Section 163 A. The tribunal has awarded a compensation of Rs. 48,020/- with 7% interest. The Insurance Company has challenged the award on the ground that since the accident had taken place on account of the negligence of the claimant himself, he is not entitled to claim compensation under Section 163 A. Further after contending for the position that he was a pillion rider the tribunal had permitted the claimant to amend the petition. Now it is a fairly settled position of law that the party is entitled to file applications under Section 166 or 163A. But the rider is that he can prosecute the case under one of these sections. Since the tribunal has found that the claimant was riding the vehicle and the accident had taken place on account of his negligence and as the petition is amended one to under Section 163A, the question of negligence does not M.A.C.A.No. 66/2007 -2- arise for consideration. Then legal question argued by the counsel is whether a person who is responsible for the accident can file a claim petition under Section 163A. This position is clearly covered by a Full Bench decision of this Court reported in National Insurance Company Ltd. v. Malathi C. Salian [2003 (3) KLT 460 (F.B)], wherein the Full Bench held that: “Insurance Company cannot defeat a claim under Section 163 A on the ground that the death or disablement had occurred due to the wrongful act, neglect or default on the part of the deceased or the disabled person”. Subsequently another decision is seen rendered by the Karnataka High Court. That is the decision reported in Oriental Insurance Company ltd. v. Salma and others [2008 ACJ 1197]. There also the question of maintainability of the petition was considered following the dictum of the Hon'ble Supreme Court in Deepal Girishbai Soni v. United India Insurance Co. Ltd. [2004 ACJ 934]. The Division Bench of the Karnataka High Court held that such a petition is maintainable. The facts of that case would reveal that one Rahiman was driving a Toyota Qualis and the vehicle suddenly went off the road and fell into the roadside drainage M.A.C.A.No. 66/2007 -3- resulting in sustainment of injuries and later on the death of the person who had driven the vehicle. Then the specific question of law was raised whether a petition under Section 163 A of the Motor Vehicles Act is maintainable before the MACT when the accident had occurred due to negligence of the victim. After elaborately considering the entire matter the division Bench held that it is maintainable. It has held that in view of the above said principle laid down by the Hon'ble Supreme Court, it is clear that a petition under Section 163 A of the Motor Vehicles Act is maintainable even in case where negligence is on the part of the victim. It has also referred to the earlier ruling of the Karnataka High Court while rendering this decision. Therefore on the basis these two authorities it has to be held that the claim petition under Section 163 A is maintainable. 2. So far as compensation is concerned under Section 163 A , either death must have resulted or there should have been permanent disablement. Here in this case, the claimant has sustained visual disablement of 30% which is a permanent disablement contemplated under the provisions of law that is under the Workmen's Compensation Act which is shown as explanation to M.A.C.A.No. 66/2007 -4- Rule 163A of the Motor Vehicles Act. Then the tribunal scaled down the disability. When a permanent disablement is sustained, the entitlement is for actual loss of earning for not more than 52 weeks, medical expenses not more than Rs. 15,000/-, compensation of pain and suffering for minor injury at 1,000/- and grevious injury at Rs. 5,000/-. In this case tribunal has awarded Rs. 10,000/- towards medical expenses , Rs. 1,000/- towards pain and suffering and disability compensation of Rs. 37,020/-. They are perfectly in tune with the structured formula under the Motor Vehicles Act. There was a pleading regarding the absence of driving licence which has not been substantiated by the Insurance Company and therefore that contention has been repelled. So from these discussions, I hold that the tribunal has not committed any error which requires interference at the hands of this court. The M.A.C.A. lack merits and accordingly it is dismissed. M.N. KRISHNAN,JUDGE vkm