IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 8TH AUGUST 2011 / 17TH SRAVANA 1933 MACA.No. 1261 of 2011() ----------------------- OPMV.1466/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL .................... APPELLANT : 2ND RESPONDENT ---------------------------- UNITED INDIA INSURANCE CO.LTD., LMS COMPOUND ,PALAYAM,TRIVANDRUM. BY ADV. SRI.P.V.JYOTHI PRASAD RESPONDENTS : PETITIONERS -------------------------- 1. SAJITHA BEEGOM.N, W/O.LATE NOUSHAD, SAJITHA MANZIL,PALLIMUKKU,ALAMCODU PO, ATTINGAL, TRIVANDRUM DISTRICT 695 102. 2. MASTER AJIMSHA(MINOR),S/O.LATE NOUSHAD, DO. DO. 3. ABDUL SATHAR,S/O.MOITHEEN KUNJU, MELATHIL VEEDU, MEENAD EAST,CHATHANNOOR PO, KOLLAM DISTRICT 691 572. 4. RAJENDRAN,S/O.RAMASWAMY GOUNDER DOOR NO.4/39,CHINNA MUTHALAIPATTY,MUTHALAIPATTY PO NAMAKKAL,TAMIL NADU 636 111. 5. GOPALAKRISHNA PILLAI,LEKSHMI BHAVAN, KAITHAKKUZHY,AADICHANALLOOR, KOLLAM 691 573. 6. M/S.NATIONAL INSURANCE COMPANY LIMITED, TRIVANDRUM, DIVISIONAL OFFICE,IIND FLOOR,KESAVA TOWERS,GANDHARIAMMAN COIL ROAD,PULIMOODU, TRIVANDRUM 695 001. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. *********************** M.A.C.A No.1261 of 2011 ***************************** Dated this the 8th day of August, 2011 JUDGMENT BASANT, J. Insurance company is the appellant. Two vehicles were included in the accident. One is a lorry insured by the appellant. The other is a motorcycle insured by the 6th respondent. There admittedly was an accident. The rider of the motorcycle suffered injuries. He succumbed to those injuries. His legal heirs are the claimants and the application was preferred under Section 163A of the Motor Vehicles Act. The claim was staked against the owner and insurer of the motorcycle as also the owner and insurer of the lorry. The Tribunal came to the conclusion that the claim under Section 163A is legally maintainable. The Tribunal, since two vehicles are involved in the accident, directed the owner and authorised insurer of both vehicles to satisfy the claim under Section 163A. Thus the appellant is made liable to pay half the amount payable under Section 163A. 2. The appellant/insurance company claims to be aggrieved by the impugned award. What is the ground of M.A.C.A No.1261 of 2011 2 challenge? Called upon to explain and be specific, the learned counsel for the appellant/insurance company argues that the accident was attributable to the negligence of the deceased/ rider of the motorcycle. He had hit against a stationery lorry which the appellant had insured. As the responsibility for the accident/negligence is entirely on the deceased/rider of the motorcycle, his legal heirs are not entitled to claim compensation under Section 163A. This in short is the contention. 3. We have in the unreported decision dated 22.07.2011 in M.A.C.A Nos.223 and 243 of 2007 [National Insurance Company Ltd. Vs. P.C.Chacko] adverted in detail to the nature of the claim under Section 163A. Section 163A recognises a new distinct, different and absolute statutory liability to pay amounts. Negligence is irrelevant in a claim under Section 163A. Consequently contributory negligence is also absolutely irrelevant. If there be any doubt on these propositions, a Full Bench in National Insurance Co.Ltd. v. Malathi C.Salian [2003(3) KLT 460 (F.B)] has settled the controversy finally. It is true that in Suresh Vs. Vasantha Shetty [2009(1) KLT 72], another Division Bench doubted the decision of the Full Bench in M.A.C.A No.1261 of 2011 3 Malathi C.Salian (supra) and the matter has been referred by that Division Bench to a Full Bench. It is also true that in yet another subsequent decision in United India Insurance Co. Ltd. V. Vijayarajan [2009 (3) KLT 269], another Division Bench following the dictum in Ningamma V. United India Insurance Co.Ltd. [2009 ACJ 2020], has observed that the Full Bench decision is not valid and binding any more. But according to us, negligence being irrelevant in a claim under Section 163A, there is no reason for us to doubt the dictum in the binding precedent of the Full Bench in Malathi C.Salian (supra). Until the Full Bench decision is reversed, it continues to remain valid. We, on our part, do not entertain any doubt about the validity of the proposition enunciating in the Full Bench decision. True to the language of 163A, negligence is irrelevant in a claim under Section 163A. Therefore we are not persuaded to refer this matter to a Full Bench or wait for such decision. 4. It is true that in United India Insurance Co. Ltd. V. Vijayarajan [2009 (3) KLT 269], another Division Bench has taken the view that the decision of the Full Bench in Malathi C.Salian (supra) stands overruled by the decision in Ningamma M.A.C.A No.1261 of 2011 4 (supra). Ningamma (supra) was dealing with a totally different situation. A driver/rider of the vehicle had claimed amounts under Section 163A against the authorised insurer in respect of the vehicle which he was driving. It is in that context that the Supreme Court in Ningamma (supra) held that such claimant who had stepped into the shoes of the owner cannot stake a claim against the owner/insurer of the vehicle. As the owner cannot claim under Section 163A, the one who had stepped into the shoes of the owner cannot also claim, it was held by the Supreme Court. In Vijayarajan (supra), the Division Bench has not at all made it clear that which proposition laid down by the Full Bench in Malathi C.Salian (supra) is rendered invalid in the light of the decision in Ningamma (supra). 5. It is unnecessary for us to go into that question as in this appeal, we are not called upon to consider the liability under Section 163A of the owner/authorised insurer of the vehicle which the deceased was riding. So far as the appellant's insured vehicle is considered that was involved in an accident undoubtedly. The Tribunal instead of mulcting one insurance company alone with the liability to pay amount under Section 163A, had divided such liability equally among the two vehicles M.A.C.A No.1261 of 2011 5 involved. The appellant can have no grievance against that course adopted by the Tribunal which is advantageous to the appellant. 6. In this view of the matter, we are satisfied that the impugned direction of the Tribunal to the appellant to pay half the amount of compensation due under Section 163A to the claimants does not, at any rate, warrant interference at the instance of the appellant. The contention that the deceased was negligent, is not a defence recognised by law against a claim under Section 163A. The challenge against the impugned award at the instance of the appellant does not therefore merit consideration and acceptance. 7. This appeal is, in these circumstances, dismissed in limine. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/