IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 MACA.No. 470 of 2008() ---------------------- OPMV.1002/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT(S): APPELLANT/3RD RESPONDENT IN THE OP ------------------------------------------------ THE ORIENTAL INSURANCE CO.LTD., THRISSUR, REPRESENTED BY THE AUTHORIZED SIGNATORY THE ORIENTAL INSURANCE CO.LTD., REGIONAL OFFICE, METRO PALACE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.A.R.GEORGE RESPONDENT(S): CLAIMANT & RESPONDENTS 1 & 2 IN THE OP ----------------------------------------------------- 1. P.SUSEELA, W/O.SUNIL KUMAR, VIJAYABHAVAN, PAZHIVIL P.O., THRISSUR. 2. T.T.JOSEPH, THAIKKADAN HOUSE, VILLADAM, R.V.PURAM P.O., THRISSUR. 3. JOY, S/O.VAREED, VADAKKAN VEETIL, NALLENKARA, THRISSUR. ADV. SMT.LATHA PRABHAKARAN FOR R1 SRI.K.M.JAMALUDHEEN FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J ------------------------------------- M.A.C.A. NO. 470 OF 2008 ------------------------------------- Dated this the 18th day of September, 2009. J U D G M E N T This is an appeal preferred against the award of the Motor Accident Claims Tribunal Thrissur in O.P.(MV).No.1002 of 2002. It is the case of the claimant that on 13.9.2001 while the petitioner was travelling in a bus bearing No. KL 8H/4334 through the public road and when it reached near Mampullikavu some people pelted stones on the bus and the petitioner sustained serious injuries. Now the compensation is claimed against the driver, owner and insurance company of the bus under section 166 of the Motor Vehicles Act. The Tribunal considered and granted a compensation of Rs.72,250/-. It is against that decision of the claimant the insurance company has come in appeal. The learned counsel for the insurance company had point out to me that no case has been charge sheeted against the driver, or owner of the vehicle. The charge sheet had been filed against some miscreants who is said to have committed the offence under section 324, 326, 427 read with section 34 of the IPC. Now the question that arises for consideration is whether the claimant is entitled for compensation under section 166 of the Motor Vehicles Act. Section 166 Motor Vehicles Act is only a general M.A.C.A. NO. 470 OF 2008 2 extension of the tortuous liability. When there is a tortuous liability the question of negligence arises for consideration. The statute specifically carve out two situations wherein the general principle of negligence need not be adhered to. They are the provisions Section 140 of the Motor Vehicles Act and Section 163 A of the Motor Vehicles Act. The principles adverted to in these two sections is to compensate persons who had sustained injuries or death in the accident Under section 140 the fault is not to be found out if the persons has sustained injury in the form of permanent disablement as contemplated Under section 142 of the Motor Vehicles Act. Section 163 A has been incorporated to save the persons whose income is less than 36,000/- rupees per month and therefore, schedule has been attached to the Act. Now the question of no fault liability or the compensation under section 163 A does not arise determination in this case as the claim is Under section 166 and no permanent disablement is proved. The question of receiving compensation when miscreants enter the bus and cause injuries to the passengers had been considered by the Division Bench of this Court reported in 2007 4 KLT 1076 i.e Shaju V Babu. “ Motor Vehicles Act, M.A.C.A. NO. 470 OF 2008 3 1988 - S.166 claimants attacked by a mob while sitting in a bus and as a result of mob attack sustaining injuries is not entitled to compensation as the driver or owner was not negligent .” This Court held that to award a claim under section 166 there must be negligence on the part of the driver or owner of the offending vehicle even though proof required in a criminal case cannot be insisted by the tribunal. Preponderance of probability alone is not proved by the claimants. “After finding that there is no negligence on the part of the driver and owner, by applying the principles in Rylands V. Fletcher, we cannot direct the driver and conductor to pay compensation except under S.140 or 163 A”. So it has to be held that the compensation awarded by the tribunal under section 166 of the Motor Vehicles Act cannot be sustained in this case. Merely because the injury has been sustained by using the vehicle it will not satisfy the requirement Under section 166 of the M.V. Act. The question of negligence cannot be dispensed with under section 166. Here there is absolutely no negligence on the part of the driver or conductor of the bus and the injury had been sustained by the claimant by pelting of stones by miscreants who were outside the bus. Under such circumstances the finding of M.A.C.A. NO. 470 OF 2008 4 the tribunal that the claimant is entitled to compensation under section 166 of the Motor Vehicles Act may cannot be sustained especially in the light of the dictum laid down in the case referred to above. Therefore, when section 166 does not envisage compensation and the question of indemnity of the owner by the insurer does not arise so the insurance company cannot be also made liable. Therefore, the M.A.C.A. is allowed and the claim of the petitioner in O.P.(MV) 1002 of 2002 of the Motor Accident Claims Tribunal Thrissur is dismissed but without costs. If the insurance company has deposited any amount let it be reimbursed to it on appropriate application. M.N.KRISHNAN, JUDGE. pm