The Kerala High Court on 29 July, 2011 in United India Insurance Vs. Mohanan, 2011 (3) KLT 669 : 2011 (3) KLJ 712 : ILR 2011 (3) Ker. 660 held that “the express language of Section 163A makes it crystal clear that negligence is irrelevant in a claim under Section 163A. If negligence is irrelevant, contributory negligence must also definitely be held to be irrelevant. A plain reading of Section 163A must make it clear that the liability under Section 163A does not at all depend on negligence or fault”.
The crucial question arose for consideration before a bench comprising of Justice R. Basant and Justice N.K. Balakrishnan was that “where two vehicles are involved in an accident and the driver/rider of one vehicle suffers injury on account of his own alleged negligence is he entitled to sustain a claim under Section 163A of the Motor Vehicles Act against the owner and authorised insurer of the other vehicle involved in the accident?
This is a case where the deceased was riding one motorcycle; it was involved in an accident with another motor cycle and the legal heirs of the deceased have staked claims against the owner/authorised insurer of the other vehicle involved in the accident. The claim was not against the owner and/or the authorised insurer of the vehicle which the deceased was riding.
While dismissing the appeal the Court held that it is important to ascertain the rationale and the logic underlying Section 163A of the Motor Vehicles Act. Groomed in the tradition of Law of Torts it may be difficult to understand the foundation of liability. The foundation of liability is certainly not fault.
The liability under Section 163 A is not the liability recognised under the law of Tort. It is a different, distinct, absolute, statutory liability and the language of Section 163A makes the position crystal clear. Search for negligence is not necessary and is not permitted under Section 163A. The shift in emphasis under Section 163A is from fault to suffering. It is the suffering endured in an accident involving a motorvehicle that gives rise to the liability under Section 163A.
Modern jurisprudence recognizes such no fault liability. In these circumstances, the Court unable to accept the contention that in view of the finding in the impugned award, though unnecessary for the purpose of deciding the claim under Section 163A, that the deceased was negligent and such negligence had resulted in the accident, the claim of the legal heirs of the deceased under under Section 163A has to be repelled.
# Facts of the Case
On fundamental facts there is no dispute. The claimants are the legal heirs of a deceased person who was riding his motorcycle at the time of the accident. On that motorcycle, in addition to the rider there were two pillion riders. When the deceased was riding that motorcycle, that motorcycle was involved in an accident.
There was a collision between that motor cycle and another motorcycle. In that, other motorcycle there was one rider and one pillion. All the five persons who were travelling in the two motor cycle suffered injuries. One of them, the rider of motorcycle succumbed to the injuries. Claimants are the legal heirs of the said rider.
Advocates P.V. Jyothi Prasad appeared for the petitioner and T.K. Koshy, T.A. Rajan, B. Pramod for the respondents.