IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.D.RAJAN TUESDAY ,THE 11TH DAY OF DECEMBER 2018 / 20TH AGRAHAYANA, 1940 MACA.No. 1812 of 2015 AGAINST THE AWARD IN OPMV 967/2005 of M.A.C.T OTTAPPALAM DATED 23-

03-2015 APPELLANT/PETITIONER:

SIVADAS ALIAS SIVADASAN, AGED 34 YEARS, S/O PONNUCHAMI, KIZHAKKEMURI, KANJIKKODE, PALAKKAD BY ADV. SRI.P.K.MOHANAN(PALAKKAD)

RESPONDENTS/RESPONDENTS:

1 RADHAKRISHNAN S/O KUNJUKUTTY, 12/603, ADUPPUKALAM, PO MENON PARA, PALAKKAD, PIN-678 621

2 SURESHKUMAR S/O DANDAPANI, K .PUDUR, KANJIKODE POST, PALAKKAD,PIN-678 621

3 NATIONAL INSURANCE CO.LTD, EAST FORT BUILDING CHITTOOR ROAD, PALAKKAD PIN-678 001

4 GIROY THOMAS S/O THOMAS, MADASSERY VEEDU, ANGAMALI, MOOPPENNUR VILLAGE, PIN -683 572

5 NATIONAL INSURANCE CO.LTD PALAKKAD PIN 678 001 BY ADVS.

SRI. ELDHO CHERIAN SRI.E.M.JOSEPH SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

This appeal is preferred against the award in O.P.

(MV)No.967/2005 of the Motor Accidents Claims Tribunal, Ottapalam by the injured. On 13.02.2005 at 6 pm, appellant sustained injuries in a motor accident and the Tribunal awarded compensation of Rs.59,600/- under Section 163A of the Motor Vehicles Act, 1988. Being aggrieved by that, the injured preferred this appeal.

2. The claimant's case in the lower court was that on 13.02.2005 at 6 pm, he was travelling in a motor cycle KL01T 7856, when he reached at Walayar out post on the Palakkad - Coimbatore NH road, the rider turned the motor cycle to the right side and hit behind another motor cycle HR 26J 0548 which was proceeding in the same direction. As a result, he sustained serious injuries. Immediately, he was removed to hospital. The accident was due to the rash and negligent driving of KL 01T 7856 by its rider. R1 is the owner and R3 is the insurer. R4 is the owner cum rider and R5 is the insurer of the other vehicle.

3. The first respondent, owner denied the negligence of the offending vehicle. The second respondent was set ex-parte. The third respondent admitted the insurance of the vehicle, but contended that they have issued only act only policy and the pillion rider is not covered as per the policy. The fourth respondent was set ex-parte. The fifth respondent denied the insurance of the other vehicle. As per order dated 20.10.2009, the learned Tribunal dismissed the claim petition. Against that the appellant preferred MACA No.553/2010 before this court and the award of the Tribunal was set aside and remanded to lower court for fresh consideration. Thereafter, the injured was examined as PW1 and his documents were marked as Exts.A1 to A19.

Respondents did not adduce any oral evidence.

4. Sec.163A of the Motor Vehicles Act, 1988 (for short, 'MV Act' ) reads as follows:

163A. Special provision 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 inforce or instrument having the force of law, the owner of the motor vehicle or 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.

Explanation.- For the purposes of this sub-section, “ permanent disability” shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of

1923).

(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.

(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time a