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Motor Accidents Claims Appeal

M.A.C.A. No. 376 of 2010 - United India Insurance Co. Ltd. Vs. Pappu, 2011 (1) KLT 922 : 2011 (1) KLJ 341 : 2011 (2) RCR (Civil) 500

posted Feb 2, 2013, 6:09 AM by Law Kerala   [ updated Feb 2, 2013, 6:16 AM ]

IN THE HIGH COURT OF KERALA

 M.N. Krishnan, J.

M.A.C.A. No. 376 of 2010

Decided On: 06.01.2011

United India Insurance Co. Ltd.

Vs.

P.O. Pappu

Head Note:-

Motor Vehicle Act, 1988 - Section 147 – Whether a goods autorickshaw driver can carry another person in the autorickshaw?

Held:- Most probably, this argument is raised on the basis of the decision in 2008 (4) KLT 552 (SC) United India Insurance Company Ltd. v. Suresh. In that case the Hon'ble Supreme Court held that the driver of the autorickshaw cannot share his seat with anybody else and therefore, no other person other than the driver can travel in the cabin. But so far as this case is concerned materials are made available before me to show that two persons are permitted to be carried in the vehicle. As per the registration certificate the seating capacity including the driver is shown as two in numbers. So one person other than the driver is entitled to travel in the cabin. When it is so, the question of sharing the driver's seat does not arise.

Motor Vehicle Act, 1988 - Section 166 – Appreciation of Evidence Wound Certificate - Vehicle involved was an auto rickshaw and it overturned resulting in the accident - The mere recital in the wound certificate cannot be substitute for evidence and do other materials are forthcoming to substantiate the contention raised by the Insurance Company. Wound certificate cannot be taken as a conclusive material, especially when witnesses and the investigating agency had stated how the accident had taken place.

For Appellant: Siby Mathew, Philip J. Vettickattu, B. Premnath (E) and Anie Paul, Advs.

For Respondents: V.K. Gopalakrishna Pillai, G. Gopakumar (Aluva) and Martin Paul, Advs.

J U D G M E N T

M.N. Krishnan, J.

1. This is an appeal preferred against the award of the Claims Tribunal, Perumbavur in OP (MV) No. 360/2004. The claimant sustained injuries and the Tribunal has awarded him a compensation of Rs. 31,700/- and directed the Insurance Company to pay the amount. It is against that decision the Insurance Company has come in appeal challenging these liability as well as the very accident.

2. Heard the learned Counsel for the Appellant as well as the Respondent.

3. The learned Counsel for the Insurance Company would contend that as per the wound certificate and other case records the cause of injury is given as on account of overturning a tempo van. It is also contended that the First Information Report was registered only in 2004 and therefore, there is no explanation for the delay. On the other hand, learned Counsel for the claimant, would contend that the claimant is a 53 year old man and he do not have much idea about the vehicles. Originally he was admitted as an out patient in the hospital and subsequently, when it aggravated he was readmitted. On 30.7.2003 itself he has preferred a private complaint before the Magistrate Court giving the correct description of the vehicle involved which was an autorickshaw. It is true that it took a long time for Court and the authorities to act upon and register the crime. Subsequently, a charge sheet has also been filed. So the investigating part of the case done by the investigating agency, would point out that the vehicle involved was an auto rickshaw and it overturned resulting in the accident. The mere recital in the wound certificate cannot be substitute for evidence and do other materials are forthcoming to substantiate the contention raised by the Insurance Company. On the other hand, the claimant had examined himself as PW1 and also PW2. These two witnesses support the case of the claimant with respect to the involvement of the autorickshaw in the accident. So the only piece of document which may go against the claimant is the recital in the wound certificate. It cannot be taken as a conclusive material, especially when PW1 and PW2 and the investigating agency had stated how the accident had taken place. Therefore, I am not prepared to accept the contention of the Insurance company regarding the fact that the accident took place when the tempo van overturned. I do not find any reason to interfere with the Tribunal on that point.

4. The next point is regarding the liability of the insurance company. Now the insurance company would contend that the vehicle involved in the accident is a goods auto rickshaw. The policy is issued to cover one driver and one employee. The claimant even going by his case is not an employee of the insured. Therefore, provisions of the policy does not cover the risk of the claimant. Now the next question i s whether there is a statutory coverage as contemplated under Section 147 of the Motor Vehicles Act. As decided in Asharani's case (2003 (1) KLT 165 (SC)) prior to the amendment of the Motor Vehicles Act under Act 54 of 1994 the person accompanying the goods or the owner of the goods were not covered by the terms and conditions of the policy. But by virtue of the incorporation of the amended provision the owner of the goods or the representative of the owner of the goods is statutorily covered. Now it is the case of the claimant that he has been accompanying the goods as the owner of the goods against which there is no contra evidence. Claimant along with the driver of Autorickshaw was travelling in the autorickshaw as the owner of the goods.

5. Now the next question that may arise for consideration is whether an autorickshaw driver can carry another person in the autorickshaw. Most probably, this argument is raised on the basis of the decision in 2008 (4) KLT 552 (SC) United India Insurance Company Ltd. v. Suresh. In that case the Hon'ble Supreme Court held that the driver of the autorickshaw cannot share his seat with anybody else and therefore, no other person other than the driver can travel in the cabin. But so far as this case is concerned materials are made available before me to show that two persons are permitted to be carried in the vehicle. As per the registration certificate the seating capacity including the driver is shown as two in numbers. So one person other than the driver is entitled to travel in the cabin. When it is so, the question of sharing the driver's seat does not arise. Even as per the provision of the insurance policy, coverage is therefore one driver plus one employee. I am referring to this only for the reason that the insurance company also knew the fact that the autorickshaw can carry two persons. I am conscious of the fact that the coverage of two employees will not take in the claimant. But by virtue of the statutory fiction under Section 147 of the Motor Vehicles Act the owner of the goods or the representative of the owner of the goods is covered by the policy without additional premium. Since the claimant had travelled in the autorickshaw whichcan take two persons and that as he had travelled as the owner accompanying the goods by virtue of the dictum laid down in Asharani's case as well as the statutory fiction under Section 147(1) of the Motor Vehicles Act, the said person is covered under the Act. Therefore, the insurance company cannot get exonerated from the liability and they are liable to pay the amount. Therefore, from these discussions, I find nothing to interfere with the decision rendered by the Tribunal. Therefore, the appeal fails and the same is dismissed.


M.A.C.A. No. 1322 of 2004 - T.R. Sreevalsalan Vs. Jaimon T. Kuruvilla, (2012) 272 KLR 007

posted Nov 4, 2012, 10:09 PM by Law Kerala   [ updated Nov 4, 2012, 10:10 PM ]

(2012) 272 KLR 007

IN THE HIGH COURT OF KERALA AT ERNAKULAM 


PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI 

FRIDAY, THE 17TH DAY OF AUGUST 2012/26TH SRAVANA 1934 

MACA.No. 1322 of 2004 (D) 

------------------------- 

OP(MV)NO.1722/1998 of MOTOR ACCIDENTS CLAIMS TRIBUNAL,KOTTAYAM 

----------------------------------------------- 


APPELLANT/PETITIONER:: 

--------------------------------------- 

T.R. SREEVALSALAN, S/O. RAJAPPAN, THAYYIL HOUSE, VELLOOR VILLAGE, MAVELLOOR P.O., KOTTAYAM. 
BY ADVS.SRI.MATHEW JOHN(K) SRI.SUJESH MENON V.B. 

RESPONDENT(S): 

----------------------------- 

1. JAIMON. T. KURUVILLA, S/O. KURUVILLA, THOTTATHIL HOUSE, ONAMTHURUTHU P.O., KOTTAYAM. 
2. P.J. JAMES, S/O. P.K. JOSEPH, PUTHENPURACKAL, NEENDOOR P.O., KOTTAYAM. 
3. ORIENTAL INSURANCE CO.LTD., KANJIKUZHY, KOTTAYAM. 
4. BABU, S/O. VASU, THAYYIL HOUSE, MEVELLOOR P.O., KOTTAYAM. 
5. V.N. RAMACHANDRAN, S/O. NARAYANAN, VAIPEL HOUSE, MEVELLOOR P.O., KOTTAYAM. 
6. ORIENTAL INSURANCE CO.LTD., THRIPPOONITHURA P.O., ERNAKULAM DISTRICT. 
R2 BY ADV. SRI.A.K.HARIDAS R3 & R6 BY ADV. SRI.V.P.K.PANICKER 

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01-08-2012, THE COURT ON 17-08-2012 DELIVERED THE FOLLOWING: sts 


C.R. 

PIUS C.KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ 

--------------------------------------------- 

MACA No.1322 of 2004 

--------------------------------------------- 

Dated this the 17th day of August, 2012 

Head Note:-

Negligence - Composite Negligence and Contributory Negligence Distinction between - When the amount of fault of each wrong doer cannot be ascertained with reasonable certainty, an innocent claimant can claim compensation from anyone of them, without being driven to the risk of proving the role of each wrongdoer.  
Held:- "Composite negligence" refers to the negligence on the part of the two or more persons. Where a person is injured as a result of the negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case the injured need not establish the extent of responsibility of each wrong-doer separately. On the other hand, where a person suffers injury partly due to the negligence on the part of another person or persons and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Composite negligence is not a term defined or explained. It should ordinarily mean that both acts of negligence operate at the same time so as to form one transaction, which gets so mixed up that it is not possible to separate the same in order to find out the whole fault in question. Principles of composite negligence are, when more than one person are responsible in the commission of the wrong, that the person wronged has a choice of proceeding against all or anyone or more than one of the wrongdoers. Every wrongdoer is liable for the whole damage if it is not otherwise made out. Primary distinction between 'contributory negligence' and 'composite negligence' is that in the former an act or omission on the part of the injured or deceased is involved, which has materially contributed to the damage. In the latter, a person is injured or his death occurs without any negligence on his part, but as a result of the combined effect of the negligence of two or more other persons.

JUDGMENT 


Ramakrishna Pillai, J 


The appellant, a 32 year old labourer approached the Motor Accidents Claims Tribunal claiming a sum of `3 lakhs as compensation on account of the injuries sustained by him in a road traffic accident occurred on 28.5.1996. 


2. Allegedly, the appellant, who was a pillion passenger of a scooter met with an accident as the scooter collided with a lorry coming from the opposite direction. The first respondent was at the wheels of the lorry. It was insured with the third respondent Insurance Company. 


3. Against the claim, the learned Tribunal awarded a sum of `65,580/- as compensation attributing negligence against the driver of the lorry and the rider of the scooter in the ratio 1:1.


4. In this appeal, the appellant is mainly challenging the adequacy of compensation awarded. In addition to that the appellant has taken a contention that the accident was due to the composite negligence of the driver of the lorry as well as the rider of the scooter and the appellant being a pillion rider, is only a third party and he be permitted to realise the compensation from the insurer of any one of the vehicles as the liability of driver, owner and insurer of both the vehicles are joint and several. 


5. We have heard the learned counsel for the appellant and the learned counsel for the third respondent Insurance Company. The impugned award was perused. 


6. Before going into the question of apportionment of the award amount, we will first consider the adequacy of compensation awarded by the learned Tribunal to the appellant. Ext.A5 is the wound certificate of the appellant which would go to show that he had sustained a lacerated wound on the scalp as well as lacerated wound on the left leg. There were multiple abrasions and swelling on the wrist. Ext.A7 is the discharge card issued by the Medical College Hospital where the appellant had undergone treatment. It reveals that the appellant sustained a fracture to the left wrist coupled with a gallazzy fracture on the right. He was hospitalised for a period of 15 days. The learned Tribunal awarded a sum of `10,000/- as compensation for pain and suffering. Considering the nature of injuries and the period of hospitalisation, we are of the view that some more amount could have been awarded to the appellant towards compensation for pain and suffering. We award to the appellant an additional sum of `5,000/- under that head. 


7. Presumably, the appellant might have been compelled to take rest atleast for a few weeks and thus, he is entitled to get compensation for loss of amenities in life during the period of treatment and convalescence. We award `5,000/- under that head, as no amount is seen awarded by the learned Tribunal. 


8. According to the appellant, he was a headload worker and he was earning `2,500/- per month. The learned Tribunal fixed his monthly income at `1,500/-. The accident was in the year 1996. The appellant was aged 32 years at the time of the accident. So it is only reasonable to hold that the appellant might have been earning at least `2,000/- per month, by engaging himself in any job. Presumably, he might not have been able to go for work at least for a period of three months. Hence, towards loss of earnings for three months, he is entitled to get `6,000/-. As the learned Tribunal has awarded only `3,400/- under that head, we award to the appellant an additional sum of `2,600/- towards loss of earnings. 


9. As the accident was in the year 1996, the appellant is entitled to get bystander's expenses during the period of hospitalisation at the rate of `150/- per day. As noticed above, he was hospitalised for 15 days. As the learned Tribunal has awarded only `1,000/-, we award to the appellant an additional sum of `1,250/-. 


10. The learned Tribunal has awarded a sum of `34,680/- towards permanent disability and `15,000/- towards loss of earning power. As the appellant is a labourer, these two heads overlap. Hence, we reckon the aforesaid sum of `49,680/- towards compensation for residual disability affecting his earning power. Though a disability certificate was pressed into service, the learned Tribunal was not inclined to accept the same, as the same did not inspire confidence due to the failure on the part of the appellant to prove the same. However, the learned Tribunal fixed the percentage of his disability at 10%. We feel that we would be justified in fixing the percentage of disability of the appellant at 12%, considering the nature of injury as well as his avocation. When the disability compensation is re-worked on the basis of the revised monthly income as well as the revised percentage of disability, it will come to `48,960/- only. As the learned Tribunal has awarded `49,680/-, which is more than what he is entitled to get, we are not awarding any additional sum towards permanent disability. Thus, the appellant becomes entitled to get a sum of `13,850/- (Rupees Thirteen Thousand Eight Hundred and Fifty only), over and above what has been awarded by the Tribunal. 


11. The learned Tribunal arrived at the conclusion that the accident had occurred due to the negligence of the driver of the lorry and the rider of the scooter. As the accident had occurred somewhere in the middle of the road which is evident from the scene mahazar, the learned Tribunal apportioned the blame among them in the ratio 1:1.


12. The argument advanced by the learned counsel for the appellant is that the appellant, being a pillion rider, was only a third party and, as the accident had occurred due to the composite negligence of the drivers of two vehicles, the appellant be permitted to realise the entire sum of compensation from the third respondent, as the liability is joint and several. In support of the argument, the learned counsel relied on two decisions. 


13. The first decision relied on is Anthony v Karvarnan (2008 (3) KLT 431(SC) where the Apex Court had made a clear distinction between composite negligence and contributory negligence as under. 

"Composite negligence" refers to the negligence on the part of the two or more persons. Where a person is injured as a result of the negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case the injured need not establish the extent of responsibility of each wrong-doer separately. On the other hand, where a person suffers injury partly due to the negligence on the part of another person or persons and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence."

14. The next decision relied on by the learned counsel for the appellant is Sally Joseph v Jose V.Jose (2002 (1) KLT 573). There, this Court observed, 

"Composite negligence is not a term defined or explained. It should ordinarily mean that both acts of negligence operate at the same time so as to form one transaction, which gets so mixed up that it is not possible to separate the same in order to find out the whole fault in question. Principles of composite negligence are, when more than one person are responsible in the commission of the wrong, that the person wronged has a choice of proceeding against all or anyone or more than one of the wrongdoers. Every wrongdoer is liable for the whole damage if it is not otherwise made out. Primary distinction between 'contributory negligence' and 'composite negligence' is that in the former an act or omission on the part of the injured or deceased is involved, which has materially contributed to the damage. In the latter, a person is injured or his death occurs without any negligence on his part, but as a result of the combined effect of the negligence of two or more other persons." 

15. What can be discerned from the decision cited above is that when the amount of fault of each wrong doer cannot be ascertained with reasonable certainty, an innocent claimant can claim compensation from anyone of them, without being driven to the risk of proving the role of each wrongdoer. 


16. In this case, there was no act or omission on the part of the appellant. Hence, we can identify this as a case of composite negligence of the driver of the lorry and the rider of the motor cycle. 


17. In Sally Joseph v Jose V.Jose (supra) this Court went to the further extent of examining the scope and ambit of Section 110B of the Motor Vehicles Act, 1939 which corresponds to Section 168 of the Motor Vehicles Act,1988. It was held that while awarding the amount in a case of composite negligence, the Tribunal can direct payment of the entire compensation jointly and severally, but at the same time would apportion the liability between the two owners for their facility and if both the owners or two insurance companies, as the case may be, pay amounts to the claimant in proportion, as awarded by Tribunal, there is no problem for the claimant. But, if one of the parties liable does not want to honour the award of the Tribunal, it will be open to the claimant to recover the entire amount from the other, leaving such party to claim rateable distribution from the other. Here, the appellant does not have a case that he is unable to recover 50% of the amount from the registered owner of the scooter. His case is that he is not in a position to recover the amount from the insurer of the scooter as the policy in respect of the scooter was an 'Act only Policy' which did not extend to pillion rider. 


18. The learned counsel for the third respondent insurance company invited our attention to the decisions of this Court in National Insurance Company Limited v Sivasankara Pillay (1995(1) KLT 51) and National Insurance Company Ltd. v Yohannan (1997(2) KLT 771) . The substance of these two decisions is that while determining the amount of compensation, the Tribunal is called upon to decide not only the compensation which confers to be just but the Tribunal shall also specify the persons to whom the compensation shall be paid and also specify the person who shall pay the said amount. It was further observed that there is specific bar of jurisdiction of civil courts under Section 110F of the Motor Vehicles Act 1939 which corresponds to S.175 of the Motor Vehicles Act, 1988 on the question relating to any claim for compensation which may be adjudicated upon by the Tribunal. 


19. In the instant case, the owner, driver and insurer of both the vehicles involved in the accident were in the party array. The learned Tribunal in exercise of the powers conferred upon it found that the driver of the lorry as well as the rider of the two wheeler were equally at default on the basis of the reliable evidence and apportioned the liability in the ratio 1:1. We do not see any reason to interfere with the said finding. It is true that, in a case of composite negligence where, it is extremely difficult to find out as to who was at fault, the claimant can proceed against the owner, driver and insurer of any one of the vehicles. In this case, on the basis of the available evidence, the learned Tribunal has found that the drivers of both the vehicles are liable in equal proportion. The challenge now raised by the appellant is only because the insurer of the scooter has disputed liability as the policy issued by them did not cover the risk of pillion riders as it was only an 'act only policy'. It has to be noted that the learned Tribunal has not found that the appellant would not get the full amount of compensation. It was apportioned among the owner, driver and insurer of both the vehicles in equal proportion. Hence, we see no force in the submission made by the learned counsel for the appellant that the appellant be permitted to realise the entire amount from the third respondent. We uphold the finding of the learned Tribunal regarding apportionment. 


In the result, we allow the appeal only by enhancing the amount of compensation by `13,850/- as above with interest at the same rate specified in the impugned award. 


Sd/- PIUS C.KURIAKOSE, JUDGE 

sd/- A.V.RAMAKRISHNA PILLAI, JUDGE 

css/ true copy P.S.TO JUDGE 


M.A.C.A. No. 1984 of 2008 - National Insurance Company Limited Vs. Annakutty Thomas, (2012) 257 KLR 220 : 2012 (3) KLT 246

posted Jul 30, 2012, 10:48 AM by Law Kerala   [ updated Jul 30, 2012, 10:48 AM ]

(2012) 257 KLR 220

IN THE HIGH COURT OF KERALA AT ERNAKULAM

 

PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI 

TUESDAY, THE 19TH DAY OF JUNE 2012/29TH JYAISHTA 1934 

MACA.No. 1984 of 2008 (E) 

-------------------------------- 

OPMV.995/2006 of MACT PALA 

---------- 

APPELLANT(S)/APPELLANT: 

------------------------------ 

NATIONAL INSURANCE COMPANY LIMITED, REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE OMANA BUILDINGS, JEWS STREET, PADMA JUNCTION KOCHI-682 035. 
BY ADV. SRI.LAL GEORGE 

RESPONDENT(S): 

------------------- 

1. ANNAKUTTY THOMAS, AGED 60 YEARS, W/O DECEASED THOMAS, KAITHOLIL HOUSE, RAMAPURAM VILLAGE, PIZHAKU.P.O, KOTTAYAM DISTRICT. 
2. SALY JOY, AGED 40 YEARS, W/O. JOY, KARIKKAKUNNEL, KADAPPATTOOR.P.O, PALA. 
3. BEENA BABY, AGED 38 YEARS, W/O BABY, THEKKEDATHU HOUSE, THOTTUMUKKAM. 
4. SHERLY RAJU, AGED 36 YEARS, W/O RAJU, MOOLASSERIYIL HOUSE, VAZHITHALA.P.O, IDUKKY (DT.) 
5. SHAJI THOMAS, AGED 34 YEARS, S/O DECEASED THOMAS, KAITHOLIL HOUSE, RAMAPURAM VILLAGE, PIZHAKU.P.O, KOTTAYAM DISTRICT. 
6. MINI JOJO, AGED 32 YEARS, W/O JOJO, NAJALOOR HOUSE, MUTHALAKODE.P.O, THODUPUZHA IDUKKY (DT) 
7. K.VISWAMBHARAN, S/O KANDAN, KAKKATTUPILLIL, HOUSE, KANJUKUZHI VILLAGE THODUPUZHA, IDUKKY (DT.)  
BY ADV. SRI.C.M.TOMY BY ADV. SRI.MATHEW SKARIA BY ADV. SRI.K.J.JOSEMON BY ADV. SRI.K.C.BINEESH 

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 


PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ. 

C. R. 

------------------------------------------------ 

M. A. C. A No. 1984 of 2008 

------------------------------------------------ 

Dated this the 19th day of June, 2012 

Head Note:-

Motor Vehicle Act, 1988 - Section 168 - Travel Expenses - Son of the deceased who came down from London to Cochin by an Air India flight for participating in the funeral - Expenses incurred by the son to have a last glimpse of his father's face and also for participating in the funeral and to perform obsequies as any other dutiful and affectionate son would, ought to be reimbursed to him by the Insurance Company.

J U D G M E N T 


Pius C. Kuriakose, J 


The Insurance Company is the appellant and they are challenging in this appeal the award of the Motor Accidents Claims Tribunal by which a total amount of ` 3,79,000/- was awarded as against a claim for much larger amounts. 


2. Even though various grounds have been raised in this memorandum of appeal challenging award of compensation by the learned Tribunal under various heads, at the time of arguments Sri.Lal George, the learned counsel for the appellant would give thrust to the argument based on the ground that the award of ` 46,000/- towards air fare expended, to respondent No.5 Shaji Thomas, the only son of the deceased Thomas who came down from London to Cochin by an Air India flight for participating in the funeral of  his deceased father is not sustainable. 


3. Even though Sri.Lal George, the learned counsel for the appellant addressed very emphatic and persuasive submissions and argued that the journey of Sri.Shaji Thomas from London to Kerala by air is not strictly attributable to the accident, we are of the view that the expenses actually incurred by the fifth respondent/Shaji Thomas who was the only son of late Thomas to have a last glimpse of his father's face and also for participating in the funeral and to perform obsequies as any other dutiful and affectionate son would, ought to be reimbursed to him by the Insurance Company on the terms of the contract of indemnity which they have entered into with the owner of the vehicle in question. It is not in dispute that the Shaji travelled by economy class and that there was no other conveyance by which he could have reached Kerala on time to participate in his father's funeral. We are not impressed by the argument that late Thomas aged 70 had already reached the evening of his life and would have died a natural death even without the accident. It is in evidence that late Thomas, an agriculturist belonging to Meenachil Taluk was otherwise quite sturdy and could have lived for some more years but for the injuries he sustained in the accident. It is also in evidence that had it not been to discharge his filial obligation of participating in his father's funeral, respondent No.5 need not have flown to Kerala at that point of time. 


4. We are not inclined to interfere with the impugned award. The appeal will stand dismissed. 


Sd/- PIUS C. KURIAKOSE JUDGE 

Sd/- A. V. RAMAKRISHNA PILLAI JUDGE 

kns/- //TRUE COPY// P.A. TO JUDGE


M.A.C.A. No. 300 of 2007 - Oriental Insurance Co. Ltd. Vs. Joseph V. V. @ Johny, 2012 (2) KLJ 195 : 2012 (2) KHC 1

posted Jun 10, 2012, 9:47 AM by Law Kerala   [ updated Jun 10, 2012, 9:48 AM ]

(2012) 244 KLR 753

IN THE HIGH COURT OF KERALA AT ERNAKULAM

 

PRESENT: THE HON'BLE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON 

TUESDAY, THE 24TH DAY OF JANUARY 2012/4TH MAGHA 1933 

MACA.No. 300 of 2007 ( ) 

------------------------ 

OPMV.36/2003 of MACT,THODUPUZHA dated 26.07.2006 


APPELLANT: 

------------ 

THE ORIENTAL INSURANCE CO.LTD, THIRUVALLA, REPRESENTED BY ITS ASSISTANT MANAGER REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. 
BY ADV. MR. GEORGE CHERIAN (THIRUVALLA) 

RESPONDENTS : 

-------------- 

1. JOSEPH V.V. @ JOHNY, S/O.VARGHESE, VADAKKEPARAMBIL HOUSE MUTHALAKODAM P.O., THODUPUZHA, IDUKKI DIST. 
2. BRIGTH JOSEPH @ LISSY, W/O.JOSEPH V.V., VADAKKEPARAMBIL HOUSE MUTHALAKODAM P.O., THODUPUZHA, IDUKKI DIST. 
3. LEJU GEORGE, S/O.GEORGE ABRAHAM, KALATHARAYIL HOUSE, PANDANANDU, CHENGANNUR P.O. ALAPPUZHA DISTRICT. 
R1 AND R2 BY SRI.SOJAN MICHEAL 

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 

(CR.) 


MANJULA CHELLUR, Ag. C.J., T.R. RAMACHANDRAN NAIR, J. & P.R. RAMACHANDRA MENON J. 

~~~~~~~~~~~~~~~~~~~~~~~ 

M.A.C.A No. 300 Of 2007 

~~~~~~~~~~~~~~~~~~~~~~~ 

Dated, this the 24th day of January, 2012 

Head Note:-

Motor Vehicles Act, 1988 - Sections 149 and 163A - Insurance Company cannot defeat a claim under S.163A on the ground that the death or disablement had occurred due to the wrongful act, neglect or default on the part of the deceased or the disabled person.  
Motor Vehicles Act, 1988 - Section 163A - It is open for the owner of the vehicle or insurer to defeat the claim under Section 163A by pleading or establishing any one of the three faults i.e 'wrongful act', 'neglect' or 'default'
Motor Vehicles Act, 1988 - Section 163A - Once the insurer or the insured comes up with the defence of absolving the liability to pay compensation, on the ground, that the deceased was responsible for the death or injury on account of either wrongful act, negligent act or default, then, the liability of the insurer can be absolved, if such plea or defence is established. 
Motor Vehicles Act, 1988 - Sections 149 and 163A - Only in a case where the coverage of rider is included in the policy or where the owner of the policy is covered and the permitted rider takes the position of a owner by virtue of terms of contract then alone the insurer would be liable to pay compensation.  
Motor Vehicles Act, 1988 - Section 149 - If the insured and the insurer of other vehicle were to be party to the proceedings, then automatically the deceased and his legal representatives, who are the claimants could be termed as third parties so far as the other vehicle is concerned.  
Motor Vehicles Act, 1988 - Section 149(2)  - Direction to pay and recover - If there are violations of the terms of the policy, the question of pay and recover would arise. When the case of the deceased is not covered under the policy, the question of pay and recover would not arise. 

Overrruled:-

New India Assurance Co. Ltd. Vs. Radhika, 2009 (2) KLT 488

J U D G M E N T 


Manjula Chellur, Ag.C.J. 


This appeal is by way of reference before us by order dated 24.08.2009. It reads as under: 

"Respondents 1 and 2 filed claim petition under Section 163A of the Motor Vehicles Act. They claim to be the legal representatives of their son, who died in a motor accident.  
2. The deceased was riding the motor cycle. The learned counsel for the appellant contends that the driver of the motor cycle was not covered by the policy. The learned counsel for the respondents 1 and 2 relied on the decision of the Division Bench of this court which is reported in New India Assurance Co. Ltd., V. Radhika (2009 (2) KLT 488). The same position has arisen for consideration in this appeal. The conditions of Policy providing for liability to third party were as follows, in the said decision: 
"In terms of and subject to the limitations of the indemnify which is granted by this Section to the Insured the company will indemnify any Driver who is driving the Motor Cycle on the insured's order or with his permission provided that such Driver shall as though he were the insured observe, fulfill and be subject to the terms, exceptions and conditions of this Policy in so far as they can apply. In the event of death of any person entitled to indemnify under this Policy the company will in respect of the liability incurred by such person indemnity his personal representatives in the terms of and subject to the limitations of this Policy provided that such personal representatives shall as though there were the insured observe, fulfill and be subject to the terms, exceptions and conditions of this Policy in so far as they can apply."  
3. The Division Bench has taken the view that the driver is covered. We are unable to subscribe to the dictum. The liability which appears to be undertaken by Clause 3 and 4 would appear to be the liability under a contract of indemnity. The company has undertaken to indemnity the driver and Clause 4 also provides for the indemnification of the personal representative of such person, who is entitled to indemnity in the event of his default. It is very clear from Clause 4 that the company undertakes to indemnify in respect of the liability incurred by such person. His personal representative would be the beneficiary of such indemnification. The liability is clearly undertaken only to the third parties in our view. In view of our disagreement, place this matter before the Honorable Chief Justice, for passing appropriate orders for reference to a Larger Bench."

2. It is necessary to refer to the facts of the present case to understand the real question of controversy raised in the matter. The claimants before the Tribunal are the parents of one Mr. Shine aged about 21 years, who met with an accident on 22.08.2000 at Bangalore, while riding a motor cycle belonging to the insured, third respondent. He succumbed to injuries on 30.09.2000. The claimants, parents of the deceased Shine, approached the Tribunal claiming compensation for the death of their son in a motor accident. The respondents were; the owner of the vehicle - the insured and the present appellant - the insurer of the motorcycle in question. The defence raised by the appellant/insurer before the Tribunal was, the rider was negligent and the injury leading to his death was not covered under the policy, therefore, they are not liable to pay compensation. The Tribunal, though held that the accident was due to the negligent riding of the vehicle by the deceased Shine, but assessed compensation, ultimately directing the appellant insurance company to pay the amount and recover from the owner of the vehicle, the insured. Aggrieved by the same, the appellant/insurance company approached this Court. As stated above, the Division Bench referred the matter to a larger Bench. 


3. The deceased was not the paid employee of the insured. As a matter of fact, two vehicles involved in the accident i.e the motor cycle manned by the deceased Shine and also another vehicle. But the details of the other vehicle are not placed before us. According to the claimants, they could not secure the details of the other vehicle, which collided with the motor cycle in question. Therefore, we have to consider the question, whether insurance company would be liable to pay compensation by indemnifying the owner of the motor cycle in question. In order to understand the liability i.e. under what circumstances the owner would be liable to pay compensation and under the insurer would be liable to indemnify the insured, one has to refer Section 149 of the Motor Vehicles Act and the terms and conditions of the policy, especially Section II - Liability to third parties. It is not in dispute that the deceased was the rider of the vehicle, but he was neither an insured nor a paid driver under the insured. In that situation can he be termed as a third party ? 


4. Section 149 of the Motor Vehicles reads as follows: 

"149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks - (1) If, after a certificate of insurance has been issued under sub- section (3) of section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as is required to be covered by a policy under clause (b) of sub-section (1) of section 147 (being a liability covered by the terms of the policy) [or under the provisions of section 163A] is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments. 
(2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely;- 
(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely; 
(i) a condition excluding the use of the vehicle - 
(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or 
(b) for organised racing and speed testing or 
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or 
(d) without side-car being attached where the vehicle is a motor cycle; or 
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or 
(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or 
(b) that the policy is void on ground that it was obtained by the non disclosure of a material fact or by a representation of fact which was false in some material particular. 
(3) Where any such judgment as is referred to in sub- section (1) is obtained from a Court in a reciprocating country and in the case of foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in sub- section (1) as if the judgment were given by a Court in India. Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to who mnotice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in sub-section (2). 
(4) Where a certificate of insurance has been issued under sub-section (3) of section 147 to the person by whom a policy has been effected, so much of the policy as purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in clause (b) of sub-section (2) shall as respects such liabilities as are required to be covered by a policy under clause (b) of sub- section (1) of section 147, be of no effect: 
Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub section shall be recoverable by the insurer from that person. 
(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured by a policy exceeds the amount for which the insurer would apart from the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person. 
(6) In this section the expression "material fact" and "material particular" means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will take the risk and if so, at what premium and on what conditions, and the expression "liability covered by the terms of the policy" means a liability which is covered by the policy or which would be so covered but for the fact that the insurer is entitled to avoid or cancel or has avoided or cancelled the policy. 
(7) No insurer to whom the notice referred to in sub- section (2) of sub -section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit or any such judgment or award as is referred to in sub-section (1) or in such judgment as is referred to in sub-section (3) otherwise than in the manner provided for in sub-section (2) or in the corresponding law of the reciprocating country, as the case may be. 
Explanation : For the purpose of this section, "Claims Tribunal" means a Claims Tribunal constituted under section 165 and "award" means an award made by that Tribunal under Section 168.

5. The reference came to be made as the Division Bench in the above appeal disagreed with the view taken by another Division Bench of this Court in New India Assurance Company Limited Vs. Radhika (2009 (2) KLT 488). Reading of paragraph 3 of the above decision would indicate that the Division Bench placing reliance on Section II incorporated in the policy opined, that the driver who was driving the vehicle would also be treated as a third party, therefore the insurer has to pay the compensation. The appellant/insurer is not denying the coverage of the vehicle, but according to the appellant/insurer the rider himself was negligent in causing the accident. Therefore, he cannot seek compensation for his own negligent act. In other words, he being a tort-feasor cannot claim damages. In the present case, the legal representatives of the tort-feasor are before us as claimants.


6. On earlier occasion, the Full Bench of this Court had an occasion to deal with some what similar situation reported in National Insurance Company Ltd. Vs. V. Malathi C. Salian (2003 (3) KLT 460). In this case the question that arose before their lordships was, whether insurance company can absolve its liability to pay compensation claimed under Section 163A on the ground that death or disablement had occurred due to the wrongful act, neglect or default on the part of the deceased or disabled person. Their lordships after referring to several judgments of the Apex Court and this Court ultimately held at paragraphs 13, 14 and 15 as under: 

13. A Division Bench of the Himachal Pradesh High Court in Kokla Devi v. Chet Ram & Anr. (2002 ACJ 650) has also considered similar situation. In that case according to the Insurance Company the death had occurred due to negligence of the driver himself and Insurance Company cannot be made liable. After elaborately surveying the various decisions on the point the court held as follows: 
"Looking to the provisions of law and decisions referred to herein above we are of the view that the claim petition was maintainable on behalf of the claimant under S.163A of the Act and on fulfilment of the requirements as envisaged thereunder, she was entitled for payment of compensation. Decisions relied upon by the Tribunal below while rejecting the claim of the appellant, were of no consequence keeping in view the change in law as made by the Acts compared to the provisions of Motor Vehicles Act, 1939 and then by Central Act 54 of 1994. At the risk of repetition we may also observe that S.163A (supra) starts, firstly with non obstante clause and further makes owner of the vehicle or the authorised insurer liable to pay in case of death or permanent disability due to accident arising out of the use of a motor vehicle as indicated in the Second Schedule. Another marked distinction in S.163A and S.166 of the Act is that under the former legal heirs or the victim as the case may be, is entitled for payment of compensation under S.163A, whereas in the latter provision compensation payable in case of death (with which we are concerned in the present case) is claimable by the legal representatives of the deceased." 
The court also held as follows: 
"S.163A brought about drastic change in the concept of tortious liability prevailing prior to it. It by non obstante clause permits even the tortfeasor to claim compensation on the principle of no fault liability which otherwise he is (if employee and has done wrong in the discharge of his duty) entitled to under Workmen's Compensation Act, 1923, or under the contract of insurance." 
It was held that Insurance Company can challenge the claim only on the ground of no contract at all, i.e., no insurance or on the above stated grounds. It was not a case of the appellant that the vehicle in question was not insured with it or that the insurance was not in force at the time of accident, or that the accident had never occurred or that the claimants are not the legal heirs of the deceased. The court also held as follows: 
"Regarding licence the scheme of the provisions of S.163A does not provide a scope to raise a plea in defence so as to challenge the claim on the ground of no licence or category thereof; being different because under S.163A as stated earlier the sums on ad hoc basis under social obligation has to be paid notwithstanding other provisions." 
We are in full agreement with the reasoning of the Division Bench of the Gujarat High Court, Bombay High Court as well as the Himachal Pradesh High Court that Insurance Company cannot defeat a claim under S.163A on the ground that the death or disablement had occurred due to the wrongful act, neglect or default on the part of the deceased or the disabled person as the case may be. 
14. The Apex Court in Rita Devi v. New India Assurance Company Limited (2000 (5) SCC 113) also held that a conjoint reading of the two sub-sections of S.163A shows that a victim or his heirs are entitled to claim from the owner/Insurance Company a compensation for death or permanent disablement suffered due to accident arising out of the use of the motor vehicle without having to prove wrongful act or neglect or default of anyone. The court held that if it is established by the claimants that the death or disablement was caused due to an accident arising out of the use of the motor vehicle then they will be entitled for payment of compensation. The Apex Court in Kaushnumma Begum v. New India Assurance Co. Ltd. (2001 (1) KLT 408 (SC) = 2001 (2) SCC 9) found though the accident had occurred not due to any negligence of the driver or the owner as the case may be, directed the Insurance Company to pay the compensation applying the structured formula under S.163A. 
15. The liability to pay compensation under S.163A is on the principle of no fault and, therefore, the question as to who is at fault is immaterial and foreign to an enquiry under S.163A. S.163A does not make any provision for apportionment of the liability. If the owner of the vehicle or the insurance company is permitted to prove contributory negligence or default or wrongful act on the part of the victim of claimants naturally the claimants will have to lead evidence which would defeat the object and purpose of S.163A. Legislature never wanted the claimant to plead or establish negligence on the part of the owner or the driver. Once it is established that death or disablement occurred during the course of the user of the vehicle and the vehicle is insured the insurance company or the owner, as the case may be, shall be liable to pay the compensation. This is a statutory obligation. Claimant is therefore entitled to get legitimate amount on the basis of the structured formula based on the no fault theory from the insurance company or the owner or owners of the vehicle on the plea that the liability is joint and several. 

As a matter of fact, in this judgment, their lordships were of the opinion that once the death or disablement occurred during the course of user of a vehicle and if the vehicle was found to be insured with the insurer, then the insurer cannot avoid its liability to pay compensation. 


7. However, the latest judgment of the Apex Court in National Insurance Company Ltd. Vs. V. Sinitha [2011 (4) KLT 821 (SC)] directly deals with a situation of present nature, where, in detail Section 163 A with reference to Section 140 of the Motor Vehicles Act as well as Sections 166 & 168 of the Motor Vehicles Act came to be analysed. The two questions came up for consideration before their lordships were as under : 

(i) Whether S. 163 A is founded on the "fault" liability ? 
(ii) Whether it is open to a concerned party (owner or insurer) to defeat a claim raised under S. 163 A by pleading and establishing any one of three "faults" namely "wrongful act, neglect" or "default"? 
Ultimately, their lordships at paragraph 13 and 14 held as under : 
13. In the second limb of the present consideration, it is necessary to carry out a comparison between Sections 140 and 163 A of the Act. For this, S. 163 A of the Act is being extracted hereunder : 
"S. 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 or the authorised 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 purpose 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 amend the Second Schedule."  
A perusal of Section 163 A reveals that sub-s.(2) thereof is in pari materia with sub s.(3) of S. 140. In other words, just as in S. 140 of the Act, so also under S. 163A of the Act, it is not essential for a claimant seeking compensation, to "plead or establish", that the accident out of which the claim arises suffers from "wrongful act" or "neglect" or "default" of the offending vehicle. But then, there is no equivalent of sub-s (4) of S 140 in S. 163 A of the Act. Whereas, under sub - s. (4) of S.140, there is a specific bar, whereby the concerned party (owner of insurance company) is precluded from defeating a claim raised under S. 140 of the Act, by "pleading and establishing", "wrongful act", "neglect" or "default", there is no such or similar prohibiting clause in S. 163 A of the Act. The additional negative bar, precluding the defence from defeating a claim for reasons of a "fault" ("wrongful act", "neglect" or "default"), as has been expressly incorporated in S. 140 of the Act (through sub-s. (4) thereof), having not been embodied in S. 163 A of the Act, has to have a bearing on the interpretation of S. 163 A of the Act. In our considered view the legislature designedly included the negative clause through sub-s.(4) in S.140, yet consciously did not include the same in the scheme of S. 163 A of the Act. The legislature must have refrained from providing such a negative clause in S. 163 A intentionally and purposefully. In fact, the presence of sub-s. (4) in S. 140, and the absence of similar provision in S. 163A, in our view, leaves no room for any doubt, that the only object of the Legislature in doing so was, that the legislature desired to afford liberty to the defence to defeat a claim for compensation raised under S. 163 A of the Act, by pleading and establishing "wrongful act", "neglect" or "default". Thus, in our view, it is open to a concerned party (owner or insurer) to defeat a claim raised under S. 163A of the Act, by pleading and establishing any one of the three faults namely "wrongful act", "neglect" or "default". But, for the above reason, we find no plausible logic in the wisdom of the legislature, for providing an additional negative bar precluding the defence from defeating a claim for compensation in S. 140 of the Act, and in avoiding to include a similar negative bar in S. 163A of the Act. The object for incorporating sub S. 2 in S. 163 A if the Act is, that the burden of pleading and establishing proof of "wrongful act", "neglect" or "default" would not rest on the shoulders of the claimant. The absence of a provision similar to sub-s (4) of S. 140 of the Act from S. 163A of the Act, is for shifting the onus of proof on the grounds of "wrongful act", "neglect" or "default" onto the shoulders of the defence (owner or the insurance company). A claim which can be defeated on the basis of any of the aforesaid considerations, regulated under the "fault" liability principle. We have no hesitation therefore to conclude, that S. 163 A of the Act is founded on the "fault"  liability principle. 
14. There is also another reason, which supports the aforesaid conclusion. S. 140 of the Act falls in Chapter X of the Motor Vehicles Act, 1988. Chapter X of the Motor Vehicles Act 1988 is titled as "Liability Without Fault in Certain Cases". The title of the Chapter in which S. 140 falls, leaves no room for any doubt, that the provisions under the chapter have a reference to liability "......... without fault......", i.e. ..; are founded under the "no-fault" liability principle. It would, however, be pertinent to mention, that S. 163 A of the Act, does not find place in Chapter X of the Act. S. 163 A falls in Chapter XI which has the title "Insurance of Motor Vehicles Against Third Party Risks". The Motor Vehicles Act, 1988 came into force with effect from 01.07.1989 (i.e. the date on which it was published in the Gazette of India Extraordinary Part II). S. 140 of the Act was included in the original enactment under Chapter X. As a against the aforesaid, S. 163A of the Act was inserted therein with effect from 14.11.1994 by way of an amendment. Had it been the intention of the legislature to provide for another provision (besides S. 140 of the Act), under the "no- fault" liability principle, it would have rationally added the same under Chapter X of the Act. Only because it was not meant to fall within the ambit of the title of Chapter X of the Act "Liability Without Fault in Certain Cases", it was purposefully and designedly not included thereunder." 

Reading of paragraphs 13 and 14 of the above judgment clearly indicates that the Apex Court, following its earlier judgment in 2001 (2) KLT 235 (SC) (Oriental Insurance Company Limited Vs. Hansrajbhai V. Kodala), held that it is open for the owner of the vehicle or insurer to defeat the claim under Section 163A by pleading or establishing any one of the three faults as stated above. This would only mean that to avoid the liability of payment of compensation, the insurer and the insured can always take the defence by pleading any one of the faults as stated above i.e 'wrongful act', 'neglect' or 'default'. 


8. In the present case the appellant/insurer is pleading negligent act on the part of the rider of the motor vehicle, who is none other than the deceased himself. Therefore, in a case, where though a claim is raised under Section 163 A, once the insurer or the insured comes up with the defence of absolving the liability to pay compensation, on the ground, that the deceased was responsible for the death or injury on account of either wrongful act, negligent act or default, then, the liability of the insurer can be absolved, if such plea or defence is established. In the present case, the Tribunal has already concluded the cause for the accident as the negligence of the rider himself i.e. deceased Shine. There is no contra material brought on record indicating that he was not responsible for the accident. Though, a feeble attempt came to be made on the part of the claimants/respondents counsel suggesting that another vehicle was involved in the accident, which was responsible for the accident, unfortunately neither the owner nor the insurer of that vehicle are before us. If the insured and the insurer of other vehicle were to be party to the proceedings, then automatically the deceased and his legal representatives, who are the claimants could be termed as third parties so far as the other vehicle is concerned.


9. On an earlier occasion also, in Oriental Insurance Company Limited Vs. Rajni Devi and Others (2008 (5) SCC 736), the Apex Court had an occasion to deal with a case arising under Section 163 A. In this case, the owner of the vehicle himself was involved in the accident and the question that arose for consideration was whether claim on behalf of the owner can be put forth against the insurer, when the owner himself was involved in the accident. Their lordships had categorically stated that the owner of the vehicle, being both claimant and also a recipient of compensation, Section 163 A cannot be taken recourse to. In the said case also, it was the legal representatives of the deceased owner who came up with the claim under Section 163A. Their lordships held that, the heirs of the deceased could not have maintained a claim in terms of Section 163 A of the Act and only by virtue of the terms of the contract of insurance they can take recourse to. In other words, what their lordships would mean is, unless the terms of the policy cover a case of present nature, the claim by the heirs of the owner, wherein the owner himself was the victim of the accident cannot be considered under Section 163 A. For example, if the owner of the vehicle insures the vehicle by paying additional premium, as personal accident coverage, then by virtue of the terms of contract of insurance, the insurer would be liable to pay compensation depending upon the limits of liability. 


10. Apparently, in the present case it is not the contention of the respondents/claimants that the owner of the motor cycle had paid premium covering the personal accident coverage and therefore, by virtue of terms of policy (Section II), the Insurance company would be liable to pay the compensation. Though, there is a comprehensive policy in the case on hand, neither in 'Act' policy, which normally known as 'A' Policy nor in 'B' Policy covering the 3rd party liability, such coverage is envisaged. As already stated the deceased cannot be equated with the status of a 3rd party in the present case. In order to understand what exactly Section II of the terms of the Policy would mean, it is just and proper to reproduce the necessary clauses of Section II, they are clauses 3 and 5. 

"3. In terms and subject to the limitations of the indemnity which is granted by this Section to the insured the company will indemnify any Rider who is driving the Motor Cycle on the insured's order or with his permission provided that such Rider shall as though he were the insured observed, fulfil and be subject to the terms, exceptions, conditions and limitations of this policy in so far as they can apply. 
5. In the event of the death of any person entitled to indemnity under this Policy the Company will, in respect of the liability incurred by such person indemnify his personal representatives in the terms of and subject to the limitations of this Policy provided that such personal representatives shall as though they were the insured Observe, fulfil and be subject to the terms exceptions and conditions of this Policy in so far as they can apply. 

Reading of clause 3 would mean, subject to the limitation of indemnity, which is granted by virtue of Section II, the insurance company would undertake to indemnify the owner, in case, the vehicle which met with an accident was driven by a person with the consent of the owner. In other words, it means, in a case where the rider or driver of a vehicle with the permission of the owner happens to use vehicle, which met with an accident, in that situation the Company would still indemnify the owner. This undertaking of the company to indemnify the owner cannot and would not mean that even for the death of such rider or driver, the company would be liable to pay compensation. In other words, what it says is, if a vehicle handed over to a person by consent of the owner results in an accident, then the claims of the 3rd parties against the owner would be indemnified by the insurer. Then clause 5 is also relevant, which would include the representative of the insured also to be indemnified by the insurer. The reading of the above clauses would explicitly clarify the position that by virtue of terms of contract, the appellant/insurer undertakes to indemnify the owner even in case the vehicle is used by a third person with the permission of the owner meets with accident and claim arises out of such accident. In that view of the matter, we are of the opinion that the law laid down in the case of 2009 (2) KLT 488 (cited supra) is not the correct position of law. 


11. It is also pertinent to mention that the Tribunal concluded that the policy in question did not cover the rider of the vehicle, therefore, if the rider was not covered, question of indemnifying the owner would not arise. Only in a case where the coverage of rider is included in the policy or where the owner of the policy is covered and the permitted rider takes the position of a owner by virtue of terms of contract then alone the insurer would be liable to pay compensation. 


12. By virtue of Sub Section 4 of Section 149, Court has to see whether there has to be a direction to pay and recover. If there are violations of the terms of the policy, the question of pay and recover would arise. When the case of the deceased is not covered under the policy, the question of pay and recover would not arise. 


Reference is answered accordingly. Ultimately, the liability of the insurance company is absolved and the Appeal is allowed. 


Sd/ MANJULA CHELLUR, (Ag. CHIEF JUSTICE) 

Sd/- T.R. RAMACHANDRAN NAIR, (JUDGE) 

Sd/- P. R. RAMACHANDRA MENON, (JUDGE) 

kmd 


M.A.C.A. No. 1044 of 2005 - United India Insurance Vs. Akbar Shihab

posted Jun 5, 2012, 12:21 AM by Law Kerala   [ updated Jun 5, 2012, 12:21 AM ]

IN THE HIGH COURT OF KERALA AT ERNAKULAM



Pius C. Kuriakose & A.V. Ramakrishna Pillai, JJ.
M.A.C.A. No. 1044 of 2005
Dated this the 12th day of March, 2012
Head Note:-
Motor Vehicles Act, 1988 – Sections 163A & 166 – Suo motu conversion of the claim petition which was originally filed under Section 166 of the Act to one under Section 163A of the Act without an application of claimant that too after taking evidence is unjustifiable. Such an option has to be exercised by the claimant before the commencement of trial, so that no prejudice would be caused to the opposite party. 
Motor Vehicles Act, 1988 – Sections 163A - A proceeding under Section 163A can be initiated only in the case of death or permanent disablement with a specific averment in a petition to the effect that the annual income of the claimant does not exceed Rs. 40,000.
For Appellant:- 
  • P.A. Reziya 
For Respondents :- 
  • P.V. Jayachandran
  • G. Unnikrishnan
  • S. Sreedev
J U D G M E N T

A.V. Ramakrishna Pillai, J

1. The Insurance Company has come up in appeal.

2. On 29-03-1998 while the first respondent was riding a two wheeler he met with an accident in his attempt to overtake a bus proceeding ahead. He preferred a claim for Rs.1,70,000/-, against which the Tribunal awarded a sum of Rs.87,000/- as compensation.

3. The appellant Insurance Company, while admitting the policy contended that the accident was the result of the negligence on the part of the first respondent. To substantiate that, they relied on Ext.B1 which is the final report submitted by the Police before the Judicial First Class Magistrate Court concerned requesting the court to refer the case as 'mistake of fact'. The claim was preferred under Section 166 of the Motor Vehicles Act (hereinafter referred to as the 'Act' for short). After trial, the Tribunal found that the accident was the direct result of negligence of the first respondent. However, the learned Tribunal awarded compensation in terms of Section 163A of the Act apportioning the negligence in the ratio 1:1 between the appellant and the driver of the bus and accordingly directed the appellant Insurance Company to pay 50% of the award amount. This finding is under challenge.

4. We have heard the learned counsel for the appellant Insurance Company and the learned counsel for the first respondent. We have also perused the impugned award.

5. The suo motu conversion of the claim by the Tribunal to one under Section 163A of the Act after trial is seriously challenged by the appellant. The learned counsel for the first respondent, per contra, justified the conversion in the light of the decision of the Calcutta High Court in Sharmila Singh Vs. Rabin Ghosh, 2010 ACJ 1428, where it was observed that if the claimant fails to prove the negligence of the driver of the offending vehicle in a proceeding under Section 166 of the Act, the Tribunal can convert the same to one under Section 163A of the Act provided the claimant avers that the income of the victim is below Rs.40,000/- per annum. As an averment by the claimant regarding the annual income limit was insisted as a condition precedent for converting the claim to one under S.163A, it can be discerned that what was intended in Sharmila Sing's case was not a suo motu conversion.

6. Before going into the merits of the rival submissions made at the Bar, it is useful to examine the relevant provisions of the Act. Section 163A of the Act reads as follows:
163A. 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 or the authorised 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 sub­section, "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 amend the Second Schedule.
7. Section 166 of the Act is as under:
166. Application for compensation.- (1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of Section 165 may be made - 
(a) by the person who has sustained the injury; or 
(b) by the owner of the property; or 
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or 
(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be: 
Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application. 
(2) Every application under sub section (1) shall be made, at the option of the claimant, either to the claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed: 
Provided that where no claim for compensation under Section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant. 
(3) xxxxx 
(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub section (6) of Section 158 as an application for compensation under this Act.
8. Section 168 of the Act runs as follows:
168. Award of the Claims Tribunal.- (1) On receipt of an application for compensation made under Section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of Section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be: 
Provided that where such application makes a claim for compensation under Section 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X. 
(2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award. 
(3) When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct."
9. The following propositions emerge on a combined reading of the aforesaid sections:
(a) Proceedings under Section 166 can be initiated either on an application of the person who suffered loss/injury in the accident or on any report of accident forwarded to the Tribunal under sub section 6 of Section 158. Proceedings under Section 163A can be initiated only on an application by the claimants. 
(b) under Section 166 of the Act, the Tribunal is required to assess the compensation for the injury or death of a person, as the case may be, involved in an accident where the cause of the accident is the negligence of the driver of any offending vehicle. For succeeding a claim under Section 166, proof of negligence of the driver of the vehicle is essential. However, under Section 163A of the Act, the claimant is not required to prove the negligence on the part of the driver of the offending vehicle. 
(c) Section 166 takes care of claims pertaining to all types of injuries, death and property damage. 163A has been enacted notwithstanding the provisions of Section 166 of the Act and claims under Section 163A is limited only to circumstances mentioned therein, i.e. the death or permanent disablement. 
(d) On an application under Section 166 of the Act, the Tribunal shall hold an enquiry into the claim and make an award determining the amount of compensation which appears to it to be 'just' subject to the provisions of Section 162 of the Act. Compensation in a claim under Section 163A shall be determined with reference to second schedule of the Act. This special provision for paying compensation on structural formula was introduced by the legislature as a social security scheme to avoid long drawn litigation. Now it is settled by judicial pronouncement that there need not be any strict adherence to the multiplier as per the second schedule, especially in the case of death of unmarried persons where the multiplier has to be determined with reference to the age of the claimant though the second schedule does not permit the adoption of a multiplier applicable to the age of the claimant [See Ramesh Singh and another Vs. Satbir Singh and another (2008 ACJ 814].
10. As Sections 163A and Section 166 of the Act, which are mutually exclusive and independent of each other, envisage two different situations, we are of the considered view that the conversion of a claim petition filed under Section 166 of the Act to one under section 163A suo motu by the Tribunal is incompetent. Nor is it possible for the Tribunal to award compensation in terms of Section 163A of the Act when after evidence, it is satisfied that the claimants have to be divested of the compensation under Section 166 of the Act. The legislature has not intended any such procedure. Adoption of such a course by the Tribunal could not be permissible. For this conclusion, we draw support from an observation by the Apex Court in Deepal Girishbhai Soni Vs. United India Insurance Company Limited, 2004 (2) KLT 395 which can be profitably extracted here:
"Having regard to the fact that Section 166 of the Act provides for a complete machinery for laying a claim on fault liability, the question of giving an option to the claimants to pursue their claims either under Section 163A or Section 166 does not arise. Remedy for payment of compensation both under Sections 163A and 166 being final and independent of each other as statutorily provided, a claimant cannot pursue his remedies thereunder simultaneously. One, thus, must opt/elect to go either for a proceeding under Section 163A writer Section 166 of the Act, but not under both".
11. In the above case, the claimants proceeded to file two applications one under Section 163A and the other under Section 166 of the Act. Both claims were entertained and the Tribunal as well as the High Court proceeded on the basis that the amount of compensation under Section 163A was by way of an interim award and the same would not preclude the claimant from proceeding with the claim under Section 166 of the Act. Laying down the law as above, because of the special circumstances of that case, the claim under Section Section 163A was treated as one under Section 140 of the Act and the claimants were directed to refund the balance after adjusting the amount provided under Section 140 of the Act.

12. In paragraphs 59 and 60 of the aforesaid judgment, it was further observed as under:
59.The question may be considered from different angles. As for example, if in the proceedings under S.166 of the Act, after obtaining compensation under S.163A, the awardee fails to prove that the accident took place owing to negligence on the part of he driver or if it is found as of fact that the deceased or the victim himself was responsible therefore as a consequence whereto the Tribunal refuses to grant any compensation; would it be within its jurisdiction to direct refund either in whole or in part the amount of compensation already paid on the basis of structured formula? Further more, if in a case, the tribunal upon considering the relevant materials comes to the conclusion that no case has been made out for awarding the compensation under S.166 of the Act, would it be at liberty to award compensation in terms of S.163A thereof?. 
60. The answer to both the aforementioned questions must be rendered in the negative. (emphasis added). In other words, the question of adjustment or refund will invariably arise in the event if it is held that the amount of compensation paid in the proceedings under S.163A of the Act is interim in nature."
13. We do notice that Deepal's case is silent regarding the point of time at which the option has to be exercised by the claimants to go for a proceeding either under section 163A or under Section 166 of the Act. We are of the firm view that such an option has to be exercised by the claimant before the commencement of trial, so that no prejudice would be caused to the opposite party.

14. In the present case, the learned Tribunal proceeded to pass an award under Section 163A of the Act on the claim petition, which was originally filed under Section 166 of the Act without an application by the claimant, that too, after it was found that the accident had occurred due to the negligence of the claimant. The suo motu conversion is unjustifiable for other reasons also. As pointed out earlier, a proceeding under Section 163A can be initiated only in the case of death or permanent disablement. In this case, the respondent/claimant did not have a case that he was disabled permanently. In Deepal's case, the Apex Court has further observed that the proceeding under Section 163A being a social security provision, providing for a distinct scheme, only those whose annual income is upto Rs. 40,000/- can take the benefit there of. All other claims are required to be determined in terms of Chapter XII of the Act. In a claim under Section 163A of the Act there should be a specific averment in the petition to the effect that the annual income of the claimant does not exceed Rs. 40,000/-.

15. Thus, we find force in the argument advanced by the learned counsel for the appellant Insurance Company that the course of action taken by the Tribunal treating the claim petition as one under Section 163A, after the evidence is over, is not at all justifiable and the same has to be interfered with. We hold that the conversion of the claim petition to one under Section 163A was unwarranted and the claim had to be treated as one under Section 166 of the Act.

16. The learned counsel for the first respondent, relying on the decision of the Apex Court in Kaushnuma Begum Vs. New India Assurance Co.Ltd., (2001) 2 SCC 9 would argue that the first respondent is entitled to get compensation on the basis of the 'rule of strict liability' proposed in Rylands Vs. Fletcher without resorting to strict proof of negligence. The ratio upheld by the House of Lords in Rylands Vs. Fletcher is as follows:
'We think that the true rule of law is that the person who, for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, he is prima facie answerable for all the damage which js the natural consequence of its escape."
17. In Kaushnuma Begum's case, a jeep, while in motion capsized, due to the bursting of tyre and in that process, it hit down a pedestrian and he sustained fatal injuries. The Apex Court found that the 'rule of strict liability proposed in Rylands Vs. Fletcher can be made applicable in such cases where there was no negligence on the part of the driver. It was held that compensation on account of the accident arising out of the use of motor vehicles can be claimed under common law even without the aid of a statute. The principle behind the said decision is that claims in respect of death or bodily injury of innocent persons shall not be disallowed merely because there was no negligence on the part of the driver of the vehicle involved in the accident.

18. A brilliant observation made by the Apex Court in Gujarat State Road Transport Corporation, Ahmadabad Vs. Ramanbhai Prabhatbhai and another, (1987) 3 SCC 234 is worth quoting in this context. It reads:
"When a pedestrian without negligence on his part is injured or killed by the motorist whether negligent or not, he or his legal representatives, as the case may be, should be entitled to recover damages if the principle of social justice should have any meaning at all." 
(emphasis applied).
19. In both the cases referred to above, the Apex Court was highlighting the need of compensating innocent victims in motor accidents even in the absence of negligence on the part of the driver. The fact situation in the present case is entirely different from Kaushnuma Begum's case, as it is evident that the first respondent also had some role in causing the accident. The contention taken by the appellant Insurance Company in the written statement filed by them before the Tribunal was that the accident was due to the negligence of the first respondent. The first respondent who was riding his two wheeler was trying to overtake a bus which was proceeding ahead and when he saw a bus coming from the opposite direction, he suddenly lost control over his vehicle and thus his vehicle hit the bus which was proceeding ahead, so contended the appellant Insurance Company relying on Ext.B1 final report filed by the police. The learned Tribunal relying on Ext.A2 scene mahazar found that the accident had occurred somewhere in the middle of the road. It is common knowledge that one cannot keep his side while overtaking. Overtaking is not an illegal act, unless it is specifically prohibited by the authorities concerned by sigh boards or other indications. None of the parties have a case that any such sign board was there at the scene of occurrence. However, it is the duty of the driver of the vehicle overtaking to ensure that no vehicle is coming from the opposite side and sufficient distance is kept between his vehicle and the vehicle that is being overtaken. Evidence regarding these aspects are not forthcoming in this case.

20. In view of the inconsistent finding regarding the negligence entered into by the learned Tribunal and also in view of the suo motu conversion of the claim petition which was originally filed under Section 166 of the Act to one under Section 163A of the Act after the evidence is over resulting in the impugned award, we feel that the award has to be interfered with and the matter has to be remanded back to the Tribunal for fresh disposal.

21. In the result, we allow the appeal. The impugned award is hereby set aside. O.P.(MV) No.655 of 1998 on the file of the Motor Accidents Claims Tribunal, Tirur is remanded to the Tribunal for fresh disposal treating the same as one under Section 166 of the Act. Both parties shall be afforded an opportunity to adduce further evidence, if any. The entire exercise shall be completed by the learned Tribunal within a period of three months from the date of appearance of the parties.

22. Parties shall enter appearance before the Tribunal on 9.4.2012. Needless to mention that the appellant Insurance Company is entitled to receive back the amount already deposited.

M.A.C.A. No. 590 of 2011 - Royal Sundaram Alliance Insurance Co. Ltd. Vs. Manmeet Singh, 2012 (2) KLT SN 84 (C.No. 78) Del.

posted Jun 1, 2012, 11:55 PM by Law Kerala   [ updated Jun 2, 2012, 12:04 AM ]

IN  THE  HIGH  COURT  OF  DELHI  AT  NEW  DELHI
HON'BLE MR. JUSTICE G.P.MITTAL
30th January, 2012
Head Note:-
Motor Vehicle Act, 1988 - Section 168 - Compensation for death of house wife - The gratuitous services rendered by wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with the services rendered by others.  
Motor Vehicle Act, 1988 - Section 168 - Compensation for death of house wife - A readymade formula given in Clause 6 (b) of the second Schedule cannot be adopted to award just and fair compensation which is the very basis of an award passed under Section 168 of the M.V. Act.   
Motor Vehicle Act, 1988 - Section 168 - Compensation for death of house wife - If a deceased housewife who lost her life in a motor accident would have died a natural death, the pecuniary advantage on account of savings made of the expenditure required for her maintenance would have otherwise also accrued to the benefit of the Claimants. Since this pecuniary advantage does not become receivable only on account of accidental death the portion of the husband' s income (spent on the deceased' s maintenance) cannot be deducted.  

M.A.C.A. No. 2291 of 2008 - Oriental Insurance Company Limited Vs. Jayarajan O., 2012 (2) KLJ 358 : 2012 (2) KHC 472

posted May 27, 2012, 12:53 AM by Law Kerala   [ updated Jun 7, 2012, 1:37 AM ]

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Pius C. Kuriakose & A.V. Ramakrishna Pillai, JJ.

M.A.C.A. No. 2291 of 2008

Dated this the 19th day of March 2012

Head Note:-

Motor Vehicles Act, 1988 – Section 166 and 168 – Does the amputation of one of the legs above knee entitle a headload worker to claim compensation for 100% disability i.e. for total disablement? 
Held:Medical evidence reveal that the respondent suffered a permanent disability of 45%. The respondent was a headload worker. Undoubtedly the respondent could not have continued his job as a headload worker after the accident. That does not mean that he is totally incapacitated to do any kind of work. Total disablement has to be considered with reference to the loss of ability to do any work, which the claimant was capable of doing. With the present disability of 45% the respondent can do some work which is conducive to his present body condition. There can be 100% disability only when the tolerance level of the human body reaches Zero. Total disability in relation to earning capacity in our considered view, is the incapacity to do any work and not the incapacity to do the particular job, which the claimant was performing before his incapacitation.

For Appellant:- 

  • Mathews Jacob (Senior)
  • P. Jacob Mathew

For Respondent:- 

  • T.C. Suresh Menon
  • Jibu P. Thomas
  • P.S. Appu

J U D G M E N T

A.V. Ramakrishna Pillai, J.

1. Does the amputation of one of the legs above knee entitle a headload worker to claim compensation for 100% disability i.e. for total disablement, is the question we were called upon to answer in this appeal. Under challenge in this appeal is the quantum of compensation awarded by the Tribunal for permanent disability to a 35 year old headload worker, whose right leg was amputated above knee on account of a crush injury sustained in a road traffic accident on 18-01-2004.

2. The relevant facts can be briefly surveyed.

3. The claimant, hereinafter referred to as the respondent, while riding his motorcycle, was hit down by a car insured with the appellant insurance company. Evidently, the car driver was negligent. The respondent was hospitalised with fracture to both bones of his right forearm and crush injury on his right leg with evidence of fracture to right femur. Fracture to the right fronto parietal bone with sub arachnoid haemorrhage and diffused brain oedema were also noticed. His right leg had to be amputated above the level of knee. He was hospitalised for 11 days. He was confined to bed for a few months.

4. Against the claim of Rs.15,00,000/- preferred under Sec.166 of the Motor Vehicles Act, the learned Tribunal awarded a sum of Rs.4,91,100/- as compensation, inclusive of a sum of Rs.3,84,000/-, awarded towards compensation for permanent disability. The learned Tribunal fixed the permanent disability of the respondent at 100%, though Ext. A9 disability certificate proved through PW 1 doctor showed his permanent disability as 45%. This was on the reasoning that the respondent became totally disabled to perform his job as a headload worker. The said finding and the consequential award, according to the appellant insurance company, is not legally sustainable. Hence the appeal.

5. Rival submissions have been heard and the impugned award was perused.

6. The amount of compensation awarded by the learned Tribunal for permanent disability is exorbitant and it is not a just compensation, as contemplated under S.168 of the Motor Vehicles Act: so submitted Mr. Mathews Jacob, the learned senior counsel for the appellant insurance company. According to him, as PW 1 doctor fixed the disability of the respondent at 45%, the learned Tribunal was not justified in fixing 100% disability for granting disability compensation.

7. According to Mr. Mathews Jacob, as the injury and the consequential amputation has not rendered the respondent totally disabled to do any kind of work, there is no justification in awarding compensation for total disablement. The learned senior counsel took us to the decision of the Full Bench of this Court in Vanajakshan Vs. Joseph, 2003 (2) KLT 462 (FB) where the ambit and import of total disablement in the context of Sec.2 to 4 of the Workmen's Compensation Act, 1923, was considered.

8. In that case, a driver aged 33 years, who had suffered disability of 45% due to loss of vision on account of the injuries sustained during the course of employment, made a claim for a lump sum payment of Rs.68,060/- before the Workmen's Compensation Commissioner. The claim petition was amended after the closing of evidence claiming to have suffered 100% disability and praying for enhanced compensation of Rs.1,51,745/-. The Authority under the Workmen's Compensation Act awarded a compensation of Rs.45,374/-, as it was found that the disability of the claimant workman was only 45% as per the medical evidence. On appeal by the claimant workman the Full Bench considered the following question for consideration:

"Does the statute provide for the award of compensation on the basis of loss of earning capacity with reference to the ability to do the work which the claimant was actually doing at the time of the accident?"

9. After considering the relevant provisions of the statute and the various decisions covering the subject, the following propositions were laid by the Full Bench:

a) The competent authority has to award compensation on the basis of the evidence adduced by the parties during the proceeding. 
b) The compensation has to be assessed with reference to loss in earning capacity and not on the basis of the ability to perform the duties of the particular job, which was being performed by the workman. If in a given case, a workman is able to prove that he was incapable of doing any other job, the competent authority shall consider and decide the matter in the light of the evidence as adduced by the parties.

10. Though the aforesaid decision was rendered in the context of Workmen's Compensation Act, we can draw analogy from the said decision as it covered a fact situation more or less similar to the one in the present case. The same logic can be profitably followed in this case also.

11. In this case, medical evidence reveal that the respondent suffered a permanent disability of 45%. The respondent was a headload worker. Undoubtedly the respondent could not have continued his job as a headload worker after the accident. That does not mean that he is totally incapacitated to do any kind of work. Total disablement has to be considered with reference to the loss of ability to do any work, which the claimant was capable of doing. With the present disability of 45% the respondent can do some work which is conducive to his present body condition. There can be 100% disability only when the tolerance level of the human body reaches Zero. Total disability in relation to earning capacity in our considered view, is the incapacity to do any work and not the incapacity to do the particular job, which the claimant was performing before his incapacitation.

12. Mr. T.C. Suresh Menon, the learned counsel for the respondent, per contra, submitted that as the respondent lost one of his legs above knee, his life was completely changed and he had to start a new venture for his livelihood. Thus, he justified the award.

13. In support of his argument, Mr. Suresh Menon has referred to the decision of the Apex Court in Pallavan Transport Corporation Limited Vs. M Jaganathan, (2002) 9 SCC 728. In that case, the claimant sustained very serious injuries in a motor occurrence resulting in 85% disability. Taking into account the peculiar circumstances of that case, the Apex Court refused to interfere with the findings of the Tribunal which awarded compensation for total disablement in view of the fact that the claimant's life was completely changed. We cannot read this judgment to mean that incapacity to do work has to be determined only with reference to the particular job for which the claimant was engaged.

14. Mr. Suresh Menon further pointed out that the scope of interference with the compensation awarded for permanent disability is limited, as the learned Tribunal has fixed a lesser monthly income (Rs.2,000/-) and adopted a lower multiplier (multiplier 16) for arriving at the quantum. Though, we see force in the said submission, we cannot uphold the disability compensation awarded by the learned Tribunal for the reasons stated above. As both sides have pointed out infirmities in the method adopted by the Tribunal, we have to re - fix the compensation for permanent disability to be awarded to the respondent.

15. As the accident was in the year 2004 and as it is an admitted fact that the respondent was a headload worker, it is only reasonable to presume that the respondent might have been earning atleast Rs.3,000/- per month during the relevant period. For adopting the multiplier we lean ourselves to the Ilnd Schedule of the Motor Vehicles Act. As the respondent was only 35 years on the date of the accident, the multiplier 17, which is applicable to the age group between 30 to 35, can be adopted. Recalculation of the disability compensation adopting the aforesaid multiplier and monthly income as well was the percentage of disability in Ext. A9 certificate (45%), will take us to the figure Rs.2,75,400/-. As the learned Tribunal has awarded a sum of Rs.3,84,000/- under that head, the disability compensation shall stand reduced by Rs.1,08,600/-.

16. Being the last Court on facts, we feel it appropriate to make a quick reappraisal of the amount awarded by the learned Tribunal under other heads also. As we have refixed the monthly income of the respondent as Rs.3,000/-, the amount awarded towards loss of earning has to be revised.

17. We are of the definite view that on account of the injuries the respondent might not have been able to go for any work atleast for nine months. As the learned Tribunal has awarded only a sum of Rs.4,000/-under that head, we hold that the respondent is entitled to get Rs.23,000/-more on that count [(Rs.3,000/- x 9) - Rs.4,000/-].

18. Also, we are of the view that the respondent is eligible to get Rs.5,000/- more towards loss of amenities in life during the period of treatment and convalescence, as he might have been compelled to take rest for a few months.

19. Further, the respondent is entitled to get bystanders expenses at the rate of Rs.200/- per day for eleven days during which, he was hospitalised, as the accident was in the year 2004. As the learned Tribunal has awarded Rs.1,100/- only towards bystanders expenses, the respondent will get a further sum of Rs.1,100/- under that head. Other heads of award do not call for any interference. Thus, we find that the respondent is entitled to get an additional sum of Rs.29,100/-.

20. While offsetting this additional amount against the excess amount arrived at above, the total compensation awarded by the Tribunal shall stand reduced by Rs.79,500/- (Rs.1,08,600/- - Rs.29,100/-). That means the respondent will get only Rs.4,11,600/- (Rs.4,91,100/- - Rs.79,500/-) as compensation. The amount shall carry interest at the rate specified in the award.

Appeal is allowed and the award shall stand modified as above. No costs.


M.A.C.A. No. 571 of 2008 - Sulaiman C.M. Vs. E.M. Varghese, (2012) 246 KLR 507 : 2012 (2) KLJ 361

posted May 26, 2012, 11:20 PM by Law Kerala   [ updated Jun 7, 2012, 1:42 AM ]

(2012) 246 KLR 507

 IN THE HIGH COURT OF KERALA AT ERNAKULAM 


PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI 

WEDNESDAY, THE 21ST DAY OF MARCH 2012/1ST CHAITHRA 1934 

MACA.No. 571 of 2008 

------------------------ 

OPMV.326/2003 of M.A.C.T.,PERUMBAVOOR 


APPELLANT/PETITIONER IN OP(MV) 326/03: 

---------------------------------------- 

SULAIMAN C.M., AGED 34 YEARS S/O.LATE MUHAMMED, CHERIPARAMBIL HOUSE, KUNNATHERI THAIKKATTUKARA P.O., ALUVA. 
BY ADVS.SRI.V.K.GOPALAKRISHNA PILLAI SRI.GOPAKUMAR G. (ALUVA) 

RESPONDENTS/RESPONDENTS IN OP(MV)326/03: 

------------------------------------------ 

1. E.M.VARGHESE, PRINCIPAL TOCH PUBLIC SCHOOL, JANATHA ROAD, VYTTILA KOCHI-682019 
2. UNITED INDIA INSURANCE CO.LTD. CITY BRANCH OFFICE-1, VETTUKATTIL BUILDING, II FLOOR JOSE JUNCTION, M.G.ROAD, ERNAKULAM 682021. 
3. JOLLY MAMPILLY, MAMPILLY HOUSE ELOOR EAST, UDYOGAMANDAL P.O. 683501 
4. UNITED INDIA INSURANCE CO.LTD. 1ST FLOOR THARAKANS, RAJAGIRI ROAD KALAMASSERY 683106. 
BY ADV. SRI.S.MAMMU 

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 


PIUS C.KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ. 

===================== 

M.A.C.A. NO. 571 of 2008 

===================== 

Dated this the 21st day of March 2012 

Head Note:-

Motor Vehicles Act, 1988 - Section 166 – Composite Negligence - the accident was due to the composite negligence on the car driver and the rider of the scooter the appellant can realise the amount either from the insurer of the car or from the owner of the scooter involved in the accident. 

J U D G M E N T 


Ramakrishna Pillai. J; 


A 30 year old man who met with a road traffic accident on 10/10/2003 approached the Tribunal claiming compensation for the injuries sustained by him. Allegedly while the appellant was riding on the pillion of a scooter, he was hit down by a car. Both the vehicles involved in the accident were insured with the United India Insurance Company. Since the accident had occurred at a Junction, the learned Tribunal found that there was 50% negligence on the part of the rider of the scooter and 50% negligence on the part of the car driver. As the policy in respect of the scooter was an act only policy, it was directed that 50% of the award amount be realised from the insurer of the car and the balance 50% be realised from the registered owner of the scooter. This finding as well as the quantum of compensation are under challenge in this appeal. 


2. We have heard the learned counsel for the appellant and the learned standing counsel for the Insurance company. We have also perused the impugned award. 


3. Admittedly, the appellant was a pillion rider. The accident arose out of a collision between the scooter on which the appellant was travelling and a car coming from the opposite direction. The accident occurred at a Junction. The road where the accident occurred, as per the records, is lying on the north south direction. The two wheeler on which the appellant was travelling was coming from the south and the car was coming from the north. The accident occurred while the scooterist was taking the right turn, i.e. towards east. The scene mahazar would reveal that the accident spot is visible from a considerable distance from either direction. The learned Tribunal found that there was 50% negligence on the part of the rider of the scooter. As far as the appellant was a pillion rider, he cannot be penalised for the negligence of the rider of the scooter unless there is some evidence to show that the appellant also had contributed to the cause of the accident. As rightly submitted by the learned counsel for the appellant that it was a case of composite negligence of the car driver and the scooterist. In such cases, the injured can proceed against anyone of the tort-feasors as the liability of the joint tort feasors are jointly and severally. Hence, we interfere with the finding of the learned Tribunal and hold that the accident was due to the composite negligence of the car driver and the scooterist, their liability being 50% each, i.e. in the ratio 1:1. 


4. The learned counsel for the appellant further submitted that compensation awarded is inadequate. The appellant sustained fracture to both bones of his left leg. He was hospitalised for 15 days. We are of the view that the amount of compensation awarded by the Tribunal for pain and suffering is inadequate. Hence, we are awarding Rs.5,000/- more on that count. 


5. Presumably the appellant might have been forced to take rest at least for a period of three months. The learned Tribunal has awarded a sum of Rs.10,000/- a compensation for loss of amenities. We are awarding to the appellant Rs.5,000/- more towards compensation for loss of amenities. 


6. As the accident was of the year 2003, the appellant is entitled to get by-stander's expenses at the rate of Rs.200/- per day. As he was hospitalised for 15 days, he is entitled to get an additional sum of Rs.1000/- on that count. 


7. According to the appellant, he was earning a monthly income of Rs.3,000/-. But the learned Tribunal fixed the monthly income of the appellant at Rs.2,000/-. As the accident was in the year 2003 and the appellant was aged 30 years, we are of the view that he might have earned at least Rs.3000/- per month by engaging himself in any job or profession. Towards loss of earnings for three months, we are awarding Rs.3,000/-more. 


8. Ext.A9 disability certificate was produced and the same was proved through PW2 which states that he was having a residual disability at 7%. But the learned Tribunal fixed the residual disability of the appellant at 4%. When the compensation for disability is recalculated fixing the monthly income of the appellant at Rs.3000/- and adopting 4% disability as well as the multiplier 18 which is applicable to the age group of the appellant, the appellant will get additional sum of Rs. 9600/-. Thus in total the appellant becomes entitled to get an additional sum of Rs.23,600/-. The learned Tribunal has already awarded a sum of Rs.89,890/- as compensation to the appellant. Thus in total the appellant becomes eligible to get a sum of Rs.1,13,490/- as compensation. The total amount will carry interest at the rate of 7.5% per annum from the date of petition till realisation. 


9. As we have already found that the accident was due to the composite negligence on the car driver and the rider of the scooter, we are of the view that the appellant can realise the amount either from the insurer of the car or from the owner of the scooter involved in the accident. 


10. The appeal is allowed and the award is modified as above. 


Sd/- PIUS C.KURIAKOSE, JUDGE 

Sd/- A.V.RAMAKRISHNA PILLAI, JUDGE 

ks True copy P.S.To Judge


M.A.C.A. No. 1709 of 2010 - Sridharan Vs. Prasad, 2011 (3) KLT 19 : 2011 (3) KLJ 66 : ILR 2011 (2) Ker. 925 : 2011 (2) KHC 777

posted Jan 8, 2012, 2:23 AM by Kerala Law Reporter


IN THE HIGH COURT OF KERALA


Hon'ble Mr. Justice A.K. Basheer and Hon'ble Mr. Justice P.Q. Barkath Ali, JJ.

M.A.C.A. No. 1709 of 2010

Decided On: 29.03.2011
Head Note:
Motor Vehicles Act, 1988 - Section 173(1) - The owner/driver would be liable to make the pre-deposit in their appeal even if the insurance company has deposited the award amount in favour of the claimant.
Chronological List of Cases Cited:
  1. Abdul Rahiman v. Rajan, 2004 (2) KLT 1113
  2. Trilochan Singh v. Kanta Devi and Ors., 2001 (1) TAC 661
  3. Rajasthan State Road Transport Corporation v. Santosh and Ors., 1995 ACJ 721
For Appellant: 
  • D. Krishna Prasad
  • O.K. Santha
  • P.L. Mary Treasa, Advs.
For Respondents: 
  • Rajan P. Kaliyath
J U D G M E N T

A.K. Basheer, J.

1. When this appeal came up for consideration on an earlier occasion, it was noticed that the Appellant had not made the statutory deposit as mandated under Section 173(1) of the Motor Vehicles Act. On a request made by the learned Counsel, the case was adjourned, so as to enable the Appellant to make the deposit. Thereafter, two more adjournments were granted to the Appellant as requested.

2. Today, when the case is taken up for consideration, learned Counsel submits that the Appellant is not in a position to make the deposit. However, he invites our attention to a decision rendered by a Division Bench of this Court in Abdul Rahiman v. Rajan, 2004 (2) KLT 1113 which, according to the learned Counsel, governs the field. It is pointed out by the learned Counsel that in this decision, it has been held that the stipulation contained in the first proviso to Section 173(1) of the Motor Vehicles Act will not come into play if the Insurance Company is directed to satisfy the award initially, and recover the amount from the owner and driver later. Learned Counsel submits that in the case on hand, an identical situation has arisen and therefore, the Appellant need not make the pre-deposit.

3. Appellant is the driver of the lorry which was involved in the accident. He has come up in appeal challenging the finding entered by the Tribunal that the licence possessed by him was not valid at the time of the accident. According to the Appellant, he had made an application for renewal of the licence and therefore, this aspect ought to have been kept in view by the Tribunal while deciding the question of validity of the licence.

4. We have carefully perused the decision in Abdul Rahiman's case (supra). In our view, the proviso to Section 173 (1) of the Motor Vehicles Act gives no room for any ambiguity or doubt.
Section 173. Appeals. - (1) Subject to the provisions of Sub-section (2), any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court: 
Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty per cent of the amount so awarded, whichever is less, in the manner directed by the High Court. 
(Emphasis supplied)
First proviso to Sub-section (1) makes it unambiguously clear that no appeal can be preferred by a person who is required to pay any amount in terms of the award unless he has deposited with the appellate court twenty-five thousand rupees or 50% of the amount so awarded, whichever is less, in the manner directed by the High Court.

5. According to the Appellant, since the amount awarded by the Tribunal in favour of the claimant has already been deposited by the Insurance Company (of course with liberty to the Company to recover it from the owner and driver of the offending vehicle), he is well within his right to institute this appeal without making the pre-deposit.

6. But, it has to be remembered that the Appellant does not have a case that no liability has been fastened on him by the award that is impugned in this appeal. The Appellant is obviously aggrieved by the award passed by the Tribunal, as otherwise, he would not have come up in appeal. It is true that the Tribunal has directed the Insurance Company to deposit the award amount before the Tribunal so as to ensure that the claimant gets the fruits of the decree passed in his favour without any delay or hassle. Undoubtedly, it cannot be said that the Appellant has been exonerated from the liability to pay the compensation. So long as the ultimate liability hangs over the head of the Appellant, he is bound to satisfy the award, though there is no imminent threat of execution against him. Any how, by no stretch of imagination, it can be said that the Appellant "is not required to pay any amount in terms of the award" unless and until he succeeds in the appeal. But, if his appeal is to be entertained, he has to necessarily comply with the statutory mandate.

7. As has been noticed already, the Tribunal found that the Appellant did not possess a valid driving licence at the time of the accident and therefore, the Insurance Company has been exonerated from the liability, though it has been directed to pay the compensation to the claimant and recover it later from the owner and the Appellant/driver. Thus, even if the insurer has complied with the direction issued by the Tribunal to deposit the award amount, the liability fastened on the Appellant would still subsist.

8. In Trilochan Singh v. Kanta Devi and Ors. 2001 (1) TAC 661, the Apex Court had occasion to consider the appeal preferred by the owner of an offending vehicle which was involved in an accident. Appellant had challenged the order passed by the High Court dismissing his appeal because of his failure to make the statutory deposit of Rs. 25,000. In fact the Insurer had paid the full amount covered under the award to the claimants and the only question that remained was regarding right of recovery. The Apex Court, obviously, did not accept the contention raised by the Appellant; but permitted him to prosecute his appeal before the High Court on condition that he deposited an amount of Rs. 50,000 in addition to the amount of Rs.10,000, which he had already deposited in the High Court, only in view of the fact that he was a retired Military Officer. A perusal of the above judgment will show that the Apex Court did not show any indulgence to the Appellant in that case in the matter of statutory pre-deposit. Therefore, the above decision will settle the issue against the Appellant in this case.

9. In Rajasthan State Road Transport Corporation v. Santosh and Ors., 1995 A.C.J. 721, the Rajasthan High Court has taken the view that under Section 173 of the Motor Vehicles Act, the appellate court has no discretion to reduce or enhance the amount of deposit as mandated in the Statute.

10. In Abdul Rahiman's case (supra), it has been held that the owner and driver would be liable to make the pre-deposit in their appeal only if the Insurance Company has been totally exonerated from the liability due to absence of insurance coverage. It has been further held that first proviso to Section 173 (1) will not be attracted in the case of an appeal preferred by the owner and driver of the offending vehicle, if the Insurance Company is directed to satisfy the award. Evidently, the decision of the Apex Court in Trilochan Singh's case (supra) was not brought to the notice of this Court while deciding Abdul Rahiman's case (supra).

11. Keeping in view the unambiguous provisions contained in Section 173 of the Motor Vehicles Act, we have no hesitation to hold that the Appellant is liable to make the pre-deposit as mandated by the Statute. Since the Appellant has failed to make the deposit in spite of three or four opportunities given to him, the appeal is not liable to be entertained.

Therefore, the appeal is rejected.

Appeal dismissed.

M.A.C.A. No. 29 of 2007 - Kuttappan Vs. Director

posted Jan 2, 2012, 3:01 AM by Kerala Law Reporter   [ updated Jan 8, 2012, 2:26 AM ]


IN THE HIGH COURT OF KERALA AT ERNAKULAM 

The Hon'ble MR. Justice A.K.BASHEER 

The Hon'ble MR. Justice P.Q.BARKATH ALI 

=~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~=

M.A.C.A. No. 29 of 2007

=~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~=

Dated this the 3rd day of January, 2011 

1. KUTTAPPAN, S/O.IDUKKULA, AGED 54 YEARS, ... Petitioner

Vs

1. THE DIRECTOR,

... Respondent

2. SANKARAN NAIR, S/O.RAMAN PILLAI,

3. THE ORIENTAL INSURANCE COMPANY LTD., 

For Petitioner :SRI.SAJITH KUMAR V. 

For Respondent :SRI.ABRAHAM JOHN

JUDGMENT

Barkath Ali, J.

Appellant is the claimant in O.P.(MV) No. 1686 of 2000 on the file of the Motor Accidents Claims Tribunal, Alappuzha. In this appeal he challenges the judgment and award of the Tribunal dated December 2nd, 2005 awarding a compensation of Rs.52,000/- for the loss caused to him on account of the injuries sustained by him in a motor accident.

2. The claimant sustained laceration on the occipital area, discharge from left ear and contusion on the left maxilla. The accident happened on May 27, 1999 near Angamali railway station. While he was cycling along the road in front of the Railway Station, Angamaly he was knocked down by a tempo van bearing registration No.KL- 7/L 8082 driven by the 2nd respondent. Alleging negligence against the 2nd respondent, the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles .Act claiming a compensation of Rs.2,12,500/-.

3. Respondents 1 and 2, owner and driver of the offending tempo van, filed a written statement admitting the accident, but contended that the accident occurred due to the negligence of the claimant. The 3rd respondent Insurance Company filed a written statement admitting the policy but attributed negligence on the side of the claimant.

4. Exts.A1 to A10 and Ext.C1 were marked on the side of the claimant. No evidence was adduced by the respondents. On an appreciation of the evidence, the Tribunal found that the accident occurred due to negligence on the part of 2nd respondent and awarded a compensation of Rs.52,000/- with interest @ 6% p.a. from the date of petition till realization. The claimant has come up in appeal challenging the quantum of compensation awarded by the Tribunal.

5. Heard the learned counsel for the claimant and learned counsel for the Insurance Company.

6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence of the 2nd respondent is not seriously challenged in this appeal. Therefore, the only question, which arises for consideration, is whether the claimant is entitled to any enhanced compensation.

7. The Tribunal awarded a total compensation of Rs.52,000/-. Break up of the compensation awarded is as under:-

Permanent disability : Rs. 25,000 

Loss of earning : Rs. 4,500 

Treatment expenses : Rs. 4,000 

Transportation : Rs. 1,000 

Bystander expenses : Rs. 2,000 

and extra nourishment.

Damage to clothing : Rs. 500 

Pain and suffering : Rs. 10,000 

Loss of amenities : Rs. 5,000 

------------------

Total : Rs.52,000

=======

8. The claimant sustained the following injuries in the accident:-

1) Laceration on the occipital area and discharge from left ear.

2) Contusion on left maxilla.

3) Multiple pneumowebs in supra and infratentorial compartments.

4) Fracture on occipital bone and petrous.

9. The learned counsel for the appellant/claimant sought enhancement of compensation for the disability caused and on other heads.

10. The Tribunal took the monthly income of the claimant as Rs.1,500/-, took the percentage of disability as 10%, adopted multiplier of 14 and awarded a compensation of Rs.25,000/- towards disability caused to the claimant. The claimant is engaged in the business of rearing duck. Taking into consideration the above aspect, we feel that his monthly income can reasonably be fixed at Rs.2,500/-. The Medical Board assessed his disability at 20%, as seen from Ext.C1 report of the Medical Board. The claimant has now profound sensory neural hearing loss in his left ear. Therefore, we feel that his percentage of disability can reasonably be fixed at 15%. Mutliplier adopted by the Tribunal 14 is not seriously challenged. Thus calculated for .the disability caused, the claimant is entitled to a compensation of Rs.63,000/- (Rs.2,500/- x 12 x 14 x 15%). Thus, the claimant is entitled to an additional compensation of Rs.38,000/- on this count.

11. The Tribunal awarded Rs.5,000/- for the loss of amenities and enjoyment in life, which appears to be very low. Taking into consideration the nature of the injuries sustained by the claimant, we feel that a compensation of Rs.10,000/- would be reasonable on this count. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same.

12. In the result, the claimant is found entitled to an additional compensation of Rs.43,000/-. The Tribunal awarded interest only @ 6% per annum, which appears to be very low. He is entitled to interest @ 7.5% per annum from the date of petition till realization for the compensation already awarded by the Tribunal and also for the enhanced compensation. The 3rd respondent shall .deposit the amount within two months from the date of receipt of a copy of this judgment with notice to the claimant. The award of the Tribunal is modified to the above extent.

The appeal is disposed of as found above. 

A.K.BASHEER,

JUDGE.

P.Q. BARKATH ALI,

JUDGE.

mn


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