IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 29TH AUGUST 2008 / 7TH BHADRA 1930 MACA.No. 1932 of 2008() ----------------------- OPMV.2947/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/4TH RESPONDENT: ----------------------------------------- THE ORIENTAL INSURANCE CO.LTD., EDAPPALLY, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI - 18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENTS/RESPONDENTS/CLAIMANTS: ---------------------------------- 1. THOMAS B.KAYANATTU, S/O.DECEASED BABY, KAYANATTU HOUSE, NAZARATH ROAD, ALUVA. 2. THRESSIAMMA THOMAS, W/O. LATE THOMAS, KAYANATTU HOUSE, NAZARATH ROAD, ALUVA. 3. VENUGOPAL, S/O. SANKUNNI, MADACHIKKAL HOUSE, KOMMADI WARD, ALAPPUZHA MUNCIPALITY WARD II, ALAPPUZHA DISTRICT. 4. KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY THE MANAGING DIRECTOR, KSRTC, THIRUVANANTHAPURAM. 5. ROBIN, T.S/O. SRI.K.V.THOMAS, KAYANATTU HOUSE, NAZARATH ROAD ALUVA. BY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: J.B.KOSHY & THOMAS P. JOSEPH, JJ. ------------------------------- M.A.C.A.NO.1932 OF 2008 () ----------------------------------- Dated this the 29th day of August, 2008 J U D G M E N T KOSHY,J. Respondents 1 and 2 filed claim petitions before the Motor Accidents Claims Tribunal, Ernakulam, contending that the father of the 1st respondent died in a motor accident on 3.1.1998. While he was driving a car, it hit a K.S.R.T.C. bus and he sustained fatal injuries. The respondents 1 and 2 claimed compensation originally under Section 166 of the Motor Vehicles Act. Thereafter, it was amended as one under Section 163A of the M.V. Act. Death of the deceased in the accident is not disputed. Tribunal assessed the monthly income of the deceased as Rs.3,000/- and granted compensation of Rs.2,96,500/-. Tribunal also found that being a claim under Section 163A, negligence of both the drivers need not be taken into account for awarding compensation. But the Tribunal noticed that two vehicles are involved in the accident. Therefore, 50% of the amount of compensation was directed to be paid by the 2nd respondent, K.S.R.T.C. and 50% by the appellant. MACA.1932/08 2 2. The first contention raised in this appeal is that the Tribunal went wrong in considering the case under Section 163A. Respondents 1 and 2 filed an application before the Tribunal for amendment of the application originally filed under Section 166 of the Act. That amendment was allowed and carried out. Therefore, the only application which was pending before the Tribunal was the one filed under Section 163A. The Apex Court in Bangalore Metropolitan Transport Corporation v. Sarojamma and another ((2008) 5 SCC 142) and in Oriental Insurance Co. Ltd. v. Hansrajbhai V. Kodala and others (2001 ACJ 827 (SC)) held that under Section 163A, negligence of the driver need not be proved. Absolute and strict liability principle enshrined under Section 163A is also elaborated by the Honourable Supreme Court in Deepal Girishbhai Soni and others v. United India Insurance Co. Ltd. (2004 ACJ 934). 3. It is then contended that under Section 163A, a person driving the vehicle cannot claim compensation against the insurer of that vehicle. In National Insurance Co. Ltd. MACA.1932/08 3 v. Malathi C. Salian (2003 (3) KLT 460 (FB)) it was held by the Full Bench that contributory negligence on the claimant driver also cannot be looked into. It is then contended that there is no provision for apportioning the liability on both the drivers in an application filed under Section 163A. But there is also no bar in apportioning liability for compensation among the drivers of the two vehicles when two vehicles are involved, in a case where negligence need not be proved. Insurance coverage for the car and liability of the Insurance company except for the above contentions are not disputed. Only compensation as per the 2nd Schedule was awarded. In the above circumstances, we are of the view that no interference is required. Hence, this appeal is dismissed. J.B.KOSHY, JUDGE THOMAS P. JOSEPH, JUDGE prp J.B.KOSHY & K.P.BALACHANDRAN, JJ. -------------------------------------------------------- M.F.A.NO. OF 2006 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 4th August, 2008