IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 19TH JULY 2010 / 28TH ASHADHA 1932 MACA.No. 491 of 2008(C) ------------------------------------ [O.P.(MV).NO.1232/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA] .................... APPELLANT/PETITIONER: -------------------------------------- ASHIK, S/O NAGOORKANI, ASHIK MANZIL, PETTA, RAMAMANGALAM KARA, MARADY VILLAGE. BY ADV. SRI.T.K.KOSHY RESPONDENTS/ RESPONDENTS 1 TO 3: ---------------------------------------------------------- 1. NIZAR, S/O JABBAR, MAROTTICKAL HOUSE, SHASTAMPARA BHAGAM, MUTHALKKODAM KARA, KARIKKODE VILLAGE. 2. BIJU AUGUSTINE, KARIKKANAKUDIYIL HOUSE, MUDAVOOR P.O., MUVATTUPUZHA. 3. THE ROYAL SUNDARAM ALLIANCE CO. LTD., SOUTHERN REGIONAL OFFICE, 46, WHITE ROAD, CHENNAI-600 014. R3 BY ADV. SRI.S.MAMMU. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/07/2010, ALONG WITH M.A.C.A NOS.505/2008 & 756 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. Nos. 491, 505 & 756 of 2008 =~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 19th day of July, 2010 JUDGMENT Barkath Ali, J. All these three appeals under section 173 of the Motor Vehicles Act arise out of the common judgment and award in O.P.(MV) Nos. 1232 of 2005 and 1352 of 2003 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha. 2. O.P.(MV) Nos.1232 of 2005 and 1352 of 2003 were filed by the rider and the pillion rider respectively of the motor cycle involved in the accident. O.P.(MV) No.1232 of 2005 was dismissed by the Tribunal, while O.P. (MV) No.1352 of 2003 was allowed, granting a compensation of Rs.1,90,850/- to the claimant with interest @ 9% per annum from the date of petition till realization and cost. Claimant in O.P. (MV) No.1232 of 2005 filed M.A.C.A. No.491 of 2003, challenging the judgment and award of the Tribunal dismissing the O.P. Claimant in O.P. No.1352 of 2003 filed MACA 491/2008 & con. cases. 2 M.A.C.A. No.505 of 2008, claiming enhancement of the compensation awarded by the Tribunal. Respondents 1 and 2 in O.P. No.1352 of 2003, who are the owner and rider of the motor cycle, filed M.A.C.A. No.756 of 2008, challenging the finding of the Tribunal, exonerating the Insurance Company and also finding of the Tribunal regarding the negligence. 3. The facts, in brief, are these:- Claimant in O.P. (MV) No.1232 of 2005 was riding and claimant in O.P.(MV) No.1352 of 2003 was pillion riding on a motor cycle bearing registration No.KL-13 D/6860 on August 23, 2003 at about 9.30 p.m. While so, the motor cycle dashed against the back side of a lorry bearing registration No.KL-7/Z-3405 parked on the middle of the road. Both of them sustained serious injuries. Claimant in O.P.(MV) No.1232 of 2005 who is the rider of the motor cycle claimed compensation under section 163A of the Motor Vehicles Act against the owner, rider and insurer of the lorry. While claimant in O.P.(MV) No.1352 of 2003, pillion rider of the motor cycle, claimed MACA 491/2008 & con. cases. 3 compensation under section 166 of the Motor Vehicles Act against the rider, owner and insurer of the motor cycle as well as the owner and insurer of the lorry. In O.P.(MV) No.1352 of 2003 first respondent, owner of the motor cycle, remained absent. Second respondent, rider of the motor cycle, who is the petitioner in O.P. (MV) No.1232 of 2005 filed a written statement, attributing negligence on the part of the driver of the lorry. Third respondent, insurer of the motor cycle, filed a written statement, admitting the policy, but contended that the policy issued by it was an “Act only policy”, which will not cover the risk of the pillion rider. Fourth respondent in O.P.(MV) No.1352 of 2003, who is the owner of the lorry, remained absent. Fifth respondent, insurer of the offending lorry, filed a written statement, contending that the accident occurred due to the negligence of the rider of the motor cycle. 4. The Tribunal, on an appreciation of the evidence, found that the accident occurred due to the negligence on the part of the rider of the motor cycle, who is the claimant MACA 491/2008 & con. cases. 4 in O.P.(MV) No.1232 of 2005 and second respondent in O.P. (MV) No.1352 of 2003, and held that the claimant in O.P. (MV) No.1232 of 2005 is not entitled to any compensation and dismissed the O.P. In O.P.(MV) No.1352 of 2003 the Tribunal found that there was negligence on the part of the rider of the motor cycle and awarded a compensation of Rs.1,90,850/- against respondents 1 and 2 therein i.e., owner and rider of the motor cycle. The Tribunal also exonerated the Insurance Company of the Motor Cycle on the ground that the policy of the motor cycle was only an “Act only policy”, which does not cover the risk of the pillion rider. Claimant in O.P. (MV) No.1232 of 2005 challenging the finding of the Tribunal dismissing his O.P. as well as the finding of the Tribunal regarding negligence filed M.A.C.A.No.491 of 2008. Himself and the owner of the motor cycle also filed M.A.C.A.No.756 of 2008 challenging the finding of the Tribunal in O.P. (MV) No.1352 of 2003 exonerating the Insurance Company and also attributing negligence on the part of the rider of the motor cycle. MACA 491/2008 & con. cases. 5 Claimant in O.P. (MV) No.1352 of 2003 claimed enhancement of the compensation awarded in M.A.C.A. No.505 of 2008. 5. The following points arise for consideration:- 1) Whether the finding of the Tribunal that the accident occurred due to the negligence of the rider of the motor cycle and that there was no negligence on the part of the driver of the lorry can be sustained? 2) Whether the judgment of the Tribunal dismissing the O.P.(MV) No.1232 of 2005, which is an application filed under section 163A of the Motor Vehicles Act, can be upheld? 3) Whether the claimant in O.P.(MV) No.1352 of 2003 is entitled to any enhanced compensation? 6. First we will consider whether the judgment of the Tribunal dismissing O.P.(MV) No.1232 of 2005 can be sustained. For several reasons, we feel that the said finding of the Tribunal cannot be sustained. This is an O.P. filed MACA 491/2008 & con. cases. 6 under section 163A of the Motor Vehicles Act. 7. Section 163A(2) of the Motor Vehicles Act, reads thus:- “163-A. Special provisions as to payment of compensation on structured formula basis:- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle of the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. xxx xxx xxxx xxx (2) In 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.” It is clear from the above that section 163A totally prohibits a question of finding on negligence so far as a claim preferred by the injured or legal representatives of a deceased is concerned. A Full Bench of this Court in MACA 491/2008 & con. cases. 7 National Insurance Co. Ltd. V. Malathi C. Salian (2003(3) KLT 460) held that Insurance Company cannot defeat a claim under section 163A of the Motor Vehicles Act on the ground that death or disablement had occurred due to a wrongful act, neglect or default on the part of the deceased or the disabled person. Following the above decision, a Devision Bench of this Court in New India Assurance Co. Ltd. V. Vappu (2007(1) KLT 351) held that under section 163A of the Motor Vehicles Act it is not necessary to consider the question of negligence. In the light of the principles laid down in the above decisions, we are of the view that the Tribunal is not justified in holding that the claimant in O.P.(MV) No.1232 of 2005, who is the rider of the motor cycle was negligent, and that, therefore, he is not entitled to compensation. It follows that the claimant in O.P. (MV) No.1232 of 2005 is entitled to compensation from respondents 1 to 3 therein. The Tribunal has not quantified the compensation due to the claimant therein. Therefore, the matter has to be remitted to the Tribunal for quantifying MACA 491/2008 & con. cases. 8 the compensation. 8. Next we shall consider whether the finding of the Tribunal that the accident occurred due to negligence on the part of the rider of the motor cycle and that there was no negligence on the part of the driver of the lorry can be sustained? The accident occurred when the motor cycle dashed against the back side of the lorry, which was parked on the middle of the road. The specific case of the rider of the motor cycle was that the lorry was parked without any signal and that too in the middle of the road, which shows that there is clear negligence on the part of the driver of the lorry. The Tribunal found that the police charge was laid against the rider of the motor cycle and that there was clear vision for 100 metres southwards and 150 metres northwards on the road and that if the rider of the motor cycle was careful, the accident could have been avoided. The above observation of the Tribunal appears to be not correct. The accident occurred in 9.30 in the night and the lorry was parked in the middle of the road. The lorry driver MACA 491/2008 & con. cases. 9 has not come forward to state that he has put up proper signal on the back side of the lorry. Therefore, the finding of the Tribunal that there was no negligence on the part of the driver of the lorry and that there was negligence on the part of the rider of the motor cycle cannot be sustained. Hence, we set aside the same. 9. Any how, as we are remanding O.P.(MV) No.1232 of 2005, O.P.(MV) No.1352 of 2003 is also remanded to the Tribunal to consider the question of negligence afresh. Both the parties are permitted to adduce further evidence, if any, before the Tribunal. As these O.Ps. are remitted to the Tribunal, the Tribunal is also directed to consider the compensation, which the claimant in O.P.(MV) No.1352 of 2003 is entitled to, afresh. 10. The next question, which arises for consideration, is whether the Tribunal is justified in finding that the policy issued by the insurer of the motor cycle, Ext.B1, is only an “Act only policy”, which does not cover the risk of the pillion rider and consequently exonerating the Insurance Company MACA 491/2008 & con. cases. 10 of the motor cycle can be sustained? As we are remanding the entire matter to the Tribunal, the Tribunal shall consider the said question also afresh. 11. In the result, all these three appeals are allowed by way of remand. O.P.(MV) Nos.1232 of 2005 and 1352 of 2003 are remitted to the Tribunal for deciding all the questions mentioned above afresh. The Tribunal shall dispose of the O.Ps. as early as possible, but not later than three months from the date of receipt of a copy of this judgment. Both the parties are entitled to adduce further evidence, if any before the Tribunal. The parties shall appear before the Tribunal on September 30, 2010. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn MACA 491/2008 & con. cases. 11