Point of Law: Section 163A of MV Act reads as special provisions as to payment of compensation on structured formula basis.

JUDGMENT :

SOPHY THOMAS, J.

1. The claimant in OP (MV) No. 1400 of 2004 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, is the appellant herein, challenging the award of the Tribunal, by which his claim for compensation was dismissed.

2. On 06.03.2004 at 11.40 p.m. while the appellant was travelling in his lorry bearing Registration No. KL-8/Y-9909, driven by the 4th respondent, he met with a road traffic accident, and as a result, he sustained serious bodily injuries including amputation of his right hand. He was travelling in that lorry as the owner-cum-spare driver. The accident occurred when the lorry owned by the appellant happened to hit against KL-10/L-8460 lorry, which was parked in a public road in a negligent manner, without putting on the park lights or any other precautionary indications. The 2nd respondent was the driver of that lorry, 1st respondent was its owner and the 3rd respondent was its Insurer.

3. The 4th respondent was the driver of the lorry owned by the appellant and the 5th respondent was its Insurer. The appellant approached the Tribunal with a claim under Section 163A of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the MV Act’) but it was dismissed finding that a claim under Section 163A of the MV Act was not maintainable, and he was not eligible to get any compensation even under Section 166 of the MV Act. Aggrieved by the dismissal of his claim for compensation, he has come up with this appeal.

4. Respondents 1 and 2 remained ex-parte. Notice against the 4th respondent was dispensed with. Respondents 3 and 5 entered appearance. The 5th respondent, i.e. the Insurer of the lorry owned by the appellant, contended that the appellant was only a gratuitous passenger in that lorry, and even as the owner of the vehicle or as the insured, he cannot claim any compensation under Section 163A of the MV Act, as the owner was not covered by the Policy issued by the company.

5. The 3rd respondent, the Insurer of the lorry, which was in parked condition, though admitted the insurance coverage of that lorry as on the date of accident, according to them, the said lorry was not involved in any accident. In fact, that lorry was safely parked at the side of the road and the accident occurred due to the rashness and negligence on the part of the 4th respondent-the driver of the appellant. So they also contended that the claim of the appellant under Section 163A of the MV Act was not maintainable.

6. Before the Tribunal, PW-1 was examined Exts. A1 to A9 and B1 were marked.

7. Heard learned counsel Sri. P.V. Baby appearing for the appellant learned counsel Sri. A.C. Devy appearing for the 3rd respondent and learned counsel Smt. Raji T. Bhaskar appearing for the 5th respondent.

8. Now let us have a re-appraisal of the facts and evidence to find out whether there is any illegality or impropriety in the impugned award, warranting interference by this Court.

9. Learned counsel for the appellant admitted that there was no personal accident coverage for the owner, as per Ext. B1 Policy Certificate, and so he is not making any claim against the 5th respondent. During cross-examination of PW-1 appellant by the 5th respondent, he admitted that there was no negligence from the part of the 4th respondent, who was the driver of his lorry, and so much so the 5th respondent has no liability to indemnify the insured. Moreover, he stated in unequivocal terms that he is not claiming any compensation from the 5th respondent, who is the Insurer of the lorry owned by him. So, there is no need to look into the liability of the 5th respondent. Now the question is regarding the liability, if any, of respondents 1 to 3 to compensate the appellant.

10. The main argument of the 3rd respondent-Insurer is that KL-10/L-8460 lorry insured with them, was not involved in any road traffic accident, and in fact, it was safely parked by the roadside. Due to the rash and negligent driving of KL-8/Y-9909 lorry by the 4th respondent, it d