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Kerala High Court
The Oriental Insurance Company Limited vs Eswari on 21 May, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
CO NO. 164 OF 2022
AGAINST THE ORDER/JUDGMENT DATED IN MACA NO.1842 OF 2013 OF HIGH
COURT OF KERALA
CROSS OBJECTORS/RESPONDENTS 1 TO 4/ADDITIONAL PETITIONERS 2 TO 5:
1 ESWARI
AGED 86 YEARS
W/O.KARUNAKARAN, KALEEKKAL KIZHAKKATHIL, PADA VADAKKU,
KARUNAGAPPALLY, KOLLAM-, PIN - 690518
2 SHAJI
AGED 62 YEARS
/O.KESAVAN, KALEEKKAL KIZHAKKATHIL, PADA VADAKKU,
KARUNAGAPPALLY, KOLLAM-, PIN - 690518
3 SABU
AGED 62 YEARS
S/O.KESAVAN, KALEEKKAL KIZHAKKATHIL, PADA VADAKKU,
KARUNAGAPPALLY, KOLLAM, PIN - 690518
4 MANJU
AGED 58 YEARS
D/O.KESAVAN, KALEEKKAL KIZHAKKATHIL, PADA VADAKKU,
KARUNAGAPPALLY, KOLLAM-, PIN - 690518
BY ADVS.
PRATHEESH.P
ANJANA KANNATH
T.S.SREEKUTTY
RESPONDENTS/APPELLANT & RESPONDENT 5 TO 9/RESPONDENTS 3,2, & 4 TO
7:
1 M/S.ORIENTAL INSURANCE CO. LTD.
M/S ORIENTAL INSURANCE COMPANY LTD., MADRAS, NOW
REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE,
METRO PALACE, KOCHI, PIN - 682018
2 SALAHUDEEN
PANACHIVILA VEEDU, PAVUMPA VILLAGE, PAVUMPA THEKKU
MURI, KOLLAM, PIN - 690574
3 SARASWATHI AMMA
MADATHILAZHIKATHU VEEDU, KIZHAKKEKARA P.O,
KOTTARAKKARA, KOLLAM, PIN - 691506
4 DEEPTHI
CO No.164/2022 &
MACA No.1842/2013 2
MADATHILAZHIKATHU VEEDU, KIZHAKKEKARA P.O,
KOTTARAKKARA, KOLLAM, PIN - 691506
5 DEEPA
MADATHILAZHIKATHU VEEDU, KIZHAKKEKARA P.O,
KOTTARAKKARA, KOLLAM, PIN - 691506
6 ABDUL VAHAB
PUTHEN VEETTIL, P.V NORTH, THODIYOOR, KOLLAM, PIN -
690523
BY ADVS.
MATHEWS JACOB (SR.)
DILEEP P V
P.JACOB MATHEW
P.V.DILEEP
THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR
ADMISSION ON 21.05.2024, ALONG WITH MACA.1842/2013, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
CO No.164/2022 &
MACA No.1842/2013 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
MACA NO. 1842 OF 2013
AGAINST THE ORDER/JUDGMENT DATED 26.04.2013 IN OPMV NO.2435 OF
1996 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM
APPELLANT/3RD RESPONDENT:
THE ORIENTAL INSURANCE COMPANY LIMITED
MADRAS NOW REPRESENTED BY ITS ASSISTANT MANAGER
REGIONAL OFFICE, METRO PALACE, KOCHI-18.
BY ADVS.
SRI.MATHEWS JACOB (SR.)
SRI.P.JACOB MATHEW
RESPONDENTS/PETITIONERS 2 TO 5 AND RESPONDENTS 2 & 4 TO 7 :
1 ESWARI
KALEEKKAL KIZHAKKATHIL PADA: VADAKKU, KARUNAGAPALLY,
PIN 691 320.
2 SHAJI SO.KESAVAN
KALEEKKAL KIZHAKKATHIL PADA: VADAKKU, KARUNAGAPALLY,
PIN 691 320.
3 SABU SO. KESAVAN
KALEEKKAL KIZHAKKATHIL PADA: VADAKKU, KARUNAGAPALLY,
PIN 691 320.
4 MANJU DO.KESAVAN
KALEEKKAL KIZHAKKATHIL PADA: VADAKKU, KARUNAGAPALLY,
PIN 691 320.
5 SALAHUDEEN
PANACHIVILA VEEDU, PAVUMPA VILLAGE, PAVUMPA THEKKU
MURI, KOLLAM, PIN 691 319.
6 SARASWATHI AMMA
MADATHILAZHIKATHU VEEDU, KIZHAKKEKARA PO KOTTARAKKARA,
PIN 691 319.
7 DEEPTHI
MADATHILAZHIKATHU VEEDU, KIZHAKKEKARA PO KOTTARAKKARA,
PIN 691 319.
CO No.164/2022 &
MACA No.1842/2013 4
8 DEEPA
MADATHILAZHIKATHU VEEDU, KIZHAKKEKARA PO KOTTARAKKARA,
PIN 691 319.
9 ABDUL VAHAB
PUTHENVEETTIL, P.V.NORTH, THODIYOOR, PIN.691315(1ST
PETITIONER AND 1ST RESPONDENT DIED)
BY ADVS.
SRI.PRATHEESH.P
SMT.REMYA REGHUPAL
SRI.K.SUBASH CHANDRA BOSE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 21.05.2024, ALONG WITH CO.164/2022, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
CO No.164/2022 &
MACA No.1842/2013 5
JUDGMENT
[CO No.164/2022 & MACA No.1842/2013] The 3rd respondent/insurer in OP(MV) No.2435 of 1996 on the file of the Motor Accidents Claims Tribunal, Kollam filed the appeal impugning the award on the ground that the offending vehicle had no valid insurance policy during the period of accident, and hence no liability to indemnify the owner of the offending vehicle. Whereas the claimants in the above OP filed Cross Objection No.164/2022, impugning the award on the ground of inadequacy of compensation.
2. The original claimant Sri.Karunakaran met with a road traffic accident on 17/8/1996 at 8.15 am while he was riding a bicycle through NH 47 from Pulliman Junction to Karunagappally. CO No.164/2022 & MACA No.1842/2013 6 KL-2/B 9300 maruti car driven by the 2nd respondent in a rash and negligent manner knocked him down, and he sustained serious injuries. He was admitted and treated in hospital for 56 days. He was a 60 year old Mason earning monthly income of Rs.4,500/- as on the date of accident. He approached the Tribunal claiming compensation of Rs.2 Lakh. Pending OP, the original claimant died. His legal heirs were impleaded as additional claimants 2 to 5. Learned Tribunal awarded compensation of Rs.2,27,000/- exceeding their claim. So the 3rd respondent insurer filed the appeal challenging the policy as well as the quantum of compensation awarded.
3. The additional claimants 2 to 5 filed CO.No.164/2022 contending that, the CO No.164/2022 & MACA No.1842/2013 7 compensation awarded by learned Tribunal was on the lower side.
4. Now this Court is called upon to answer whether there is any irregularity, illegality or impropriety in the impugned award warranting interference by this Court.
5. Heard learned counsel for the appellant and learned counsel for the respondents/cross objectors.
6. The learned counsel for the appellant/insurer would submit that the offending vehicle KL-2/B 9300 maruti car was not insured with them as on the date of accident. According to them, the policy was valid only till 28/10/1995. But they failed to produce the policy certificate to show that the policy of the offending vehicle was valid only CO No.164/2022 & MACA No.1842/2013 8 upto 28/10/1995. Ext.A4 mahazar of the offending car will show that the Investigating Officer inspected the car and its documents, and the insurance certificate was found to be issued for the period from 28/10/1995 to 27/10/1996 covering the date of accident i.e.17/8/1996. Ext.A13 the report of the AMVI also shows that on inspection of the offending vehicle, and its documents it was seen that the insurance policy issued from Oriental Insurance Company was valid till 27/10/1996. Ext.A2 charge sheet will show that the driver of the offending car was charged with offences punishable under Sections 279, 337 and 338 of IPC alone, and there was no charge for driving the vehicle without any valid insurance policy. So based on Exts.A4, A13 and A2, this court CO No.164/2022 & MACA No.1842/2013 9 finds no reason to interfere with the finding of the tribunal that the offending vehicle was validly insured with the appellant/3rd respondent as on the date of accident. So the ground urged by the appellant regarding the insurance policy of the offending vehicle, is liable to be turned down.
7. Now coming to the quantum of compensation award, learned counsel for the appellant would submit that, the original claimant died in the year 2003 i.e after seven years of the accident. The death was not due to the injuries suffered in that accident. Ext.A10 disability certificate will show that the original claimant suffered 70% disability. Learned Tribunal assessed disability compensation applying the multiplier of 11 without taking CO No.164/2022 & MACA No.1842/2013 10 note of the fact that, the claimant died after seven years of the accident. So the disability compensation has to be reassessed taking the multiplier as 7. The notional income taken by the tribunal @ Rs.1,500/- also seems to be reasonable as the original clamant was a 60 year old mason as on the date of accident. So the disability compensation can be re-assessed as Rs.88,200/- (1,500x12x7x70/100). The learned Tribunal awarded Rs.1,38,600/- under the head disability compensation. So the respondents 1 to 4 (cross objectors) are liable to refund Rs.50,400/-(1,38,600-88,200) awarded in excess of what they were actually entitled.
8. Learned counsel for the cross objectors would submit that, learned Tribunal assessed loss of earning for one year alone, though the CO No.164/2022 & MACA No.1842/2013 11 original claimant had suffered 70% disability, and he was not able to do his mason work till his death. Considering the nature of injuries and the percentage of disability suffered, this court is inclined to take loss of earning for 18 months in total @ 1,500/- per month. So for loss of earning for the extra six months period, he was eligible to get Rs.9,000/- more (1500x6). So the cross objectors are entitled to get enhancement of Rs.9,000/- under the head loss of earning.
9. Towards bystander expenses learned Tribunal awarded only Rs.5,000/-. The original claimant was a 60 year old man, and he suffered 70% disability as reported in Ext A10 disability certificate. So, this Court is inclined to enhance the bystander expenses by CO No.164/2022 & MACA No.1842/2013 12 Rs.15,000/-.
10. Under the head pain and sufferings, learned Tribunal awarded only Rs.20,000/-. The original claimant was hospitalized for 56 days, and learned counsel for the cross objectors would submit that the original claimant had undergone several surgical procedures. Considering that fact that, this court is inclined to enhance the compensation under the head pain and suffering by Rs.11,000/-. Though the original claimant suffered permanent disability of 70%, and he was not able to continue his mason work, under the head loss of amenities no amount was seen awarded by the tribunal. So this Court is inclined to award Rs.20,000/-, under the head loss of amenities.
11. The enhanced compensation awarded in this CO No.164/2022 & MACA No.1842/2013 13 appeal is stated in the table below:-
Amount Amounts
Amount Difference to
Head of claim awarded deducted
awarded in be drawn as
by the in appeal enhanced
appeal
Tribunal compensation
88,200/-
Compensation
1,38,600/- (1500x12x7x 50,400/-
for disability
70/100)
Loss of
18,000/- 27,000/- - 9,000/-
earning
Bystander
5,000/- 20,000/- - 15,000/-
expenses
Pain and
20,000/- 31,000/- - 11,000/-
sufferings
Loss of
- 20,000/- 20,000/-
amenities
TOTAL 50,400/- 55,000/-
12. So the cross objectors are entitled to get enhancement of Rs.55,000/- in total, under the heads mentioned above, but Rs.50,400/- awarded in excess is liable to be deducted. So the balance entitled by the cross objectors is Rs.4,600/-(55,000-50,400).
13. The appellant/insurer is directed to CO No.164/2022 & MACA No.1842/2013 14 deposit the enhanced compensation of Rs.4,600/- with 8% interest per annum, from the date of petition till the date of deposit (excluding 451 days of delay in filing the cross objection) before the Motor Accidents Claim Tribunal, Kollam, within a period of three months from the date of receipt of a copy of this judgment. Learned Tribunal shall disburse that amount to the cross objectors 1 to 4 in equal share, after deducting the liabilities, if any, towards Tax, balance court fee, legal benefit fund etc. The appeal and the cross objection stand allowed in part to the extent as above, and no order is made as to costs.
Sd/-
SOPHY THOMAS, JUDGE ska