Kerala High Court
The United India Insurance Co.Ltd vs K.L.James on 22 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 22ND DAY OF JULY 2021 / 31ST ASHADHA, 1943
MACA NO. 435 OF 2009
AGAINST THE ORDER/JUDGMENT IN OP(MV) 2436/2001 OF THE MOTOR ACCIDENT
CLAIMS TRIBUNAL, THRISSUR
APPELLANTS/RESPONDENTS 5 & 6 IN THE O.P.(MV)
THE UNITED INDIA INSURANCE CO.LTD.,
REP BY THE DEPUTY MANAGER, OFFICE OF THE REGIONAL
MANAGER, UNITED INDIA INSURANCE CO.LTD., HOSPITAL ROAD,
ERNAKULAM.
BY ADVS.
SRI.M.A.GEORGE
SMT.DEEPA GEORGE
RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 4 IN THE O.P(MV):
1 K.L.JAMES, S/O.LAZER,
KALLUTHUZHI HOUSE, PARAVATTANI PO., THRISSUR.
2 SUNIL SEVAKRAM JESWANI,
FLAT 602, PRIYA DARSHINI APARTMENTS, GOL MAIDAN, ULLAS
NAGAR NO.1, THANE DISTRICT, MAHARASTRA STATE.
3 NOUSHAD CALICUT ,C/O.SUNIL SEVAKRAM
JESWANI, FLAT.NO.602, PRIYA DARSHINI APARTMENTS, GOL
MAIDAN, ULLAS NAGAR NO.1, THANE DISTRICT, MAHARASTRA
STATE.
4 DAVIT PAUL, ALAPPADAN HOUSE, KALATHODE
PO., TRICHUR.
5 C.T.BABY, S/O.THARU, CHIRAN HOUSE,
PARAVATTANY, TRICHUR.
BY ADVS.
SRI.P.S.APPU
SRI.C.A.ANOOP
SRI.V.CHITAMBARESH SR.
SRI.JIBU P THOMAS
MACA NOs. 435 OF 2009 & 667 of 2009 2
SRI.A.R.NIMOD
SRI.T.C.SURESH MENON
SRI.P.SANTHOSH PODUVAL
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 22.07.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
MACA NOs. 435 OF 2009 & 667 of 2009 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 22ND DAY OF JULY 2021 / 31ST ASHADHA, 1943
MACA NO. 667 OF 2009
AGAINST THE ORDER/JUDGMENT IN OP(MV) 2436/2001 OF THE MOTOR
ACCIDENT CLAIMS TRIBUNAL, THRISSUR
APPELLANT/PETITIONER:
K.L.JAMES, S/O.LAZER, RESIDING AT
KALLUTHUZHI HOUSE, P.O.PARAVATTANI, THRISSUR.
BY ADVS.
SRI.V.CHITAMBARESH (SR.)
SRI.P.S.APPU
SRI.C.A.ANOOP
SRI.JIBU P THOMAS
SRI.A.R.NIMOD
SRI.T.C.SURESH MENON
RESPONDENTS/RESPONDENTS:
1 SUNIL SEVAKRAM JESWANI, RESIDING AT
FLAT NO.602, PRIYA DARSHINI APARTMENTS, GOL MAIDAN,
ULLAS NAGAR NO.1., THANE DISTRICT, MAHARASTHRA
STATE.
2 NOUSHAD CALICUT, C/O.SUNIL SEVAKRAMJESWANI,RESIDING
AT FLAT NO.602, PRIYA DARSHINI, APARTMENTS, GOL
MAIDAN, ULLAS NAGAR NO.1., THANE DISTRICT.
3 DAVIT PAUL RESIDING AT ALAPPADAN HOUSE,
P.O.KALATHODE, TRICHUR.
4 C.T.BABY, S/O.THARU, RESIDING AT
CHIRAN HOUSE, PARAVATTANY,TRICHUR.
MACA NOs. 435 OF 2009 & 667 of 2009 4
5 THE UNITED INDIA INSURANCE COMPANY
LIMITED, THRISSUR.
6 THE UNITED INDIA INSURANCE COMPANY
LIMITED, GOLDEN CHAMBERS, 2ND FLOOR, SEC.1, UNR-3,
MAHARASHTRA.
BY ADVS.
SMT.DEEPA GEORGE
SRI.M.A.GEORGE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 22.07.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
MACA NOs. 435 OF 2009 & 667 of 2009 5
JUDGMENT
As these appeals arise out of the same award
between the same parties in OP(MV) No.2436 of 2001 on
the file of the Motor Accidents Claims Tribunal, Thrissur,
they are being disposed of by this common judgment. The
parties are, for the sake of convenience, referred to as per
their status before the Tribunal.
2. The petitioner had filed the claim petition under
Section 166 of the Motor Vehicles Act, 1988, claiming
compensation on account of the injuries that he sustained
in an accident on 24.4.2001. The petitioner has averred in
the claim petition that on 24.4.2001, while he was riding
pillion on a motorcycle bearing Reg.No.KL 8 D 6203
(motorcycle) through the Thrissur - Mannuthy public road,
when the vehicle reached Pulikkan Market, Paravattani, a
Maruthi Esteem Car bearing Reg.No.MH-01B 4565 (car)
driven by the 2nd respondent hit the motorcycle. In the
impact, the petitioner fell down and sustained serious
injuries, including fracture on both his legs. He was taken
to the Aswini Hospital, Thrissur and, thereafter, to the
Metropolitan Hospital, Thrissur where he continued
treatment till his discharge. The accident had occurred on
the public road due to the rash and negligent driving of
the car by the 2nd respondent and the motorcycle by the
4th respondent. The car belonged to the 1 st respondent
and the motorcycle belonged to the 3rd respondent. The
vehicles were insured with the same insurer namely the
Union India Insurance Company Ltd., - the respondents 5
and 6. The petitioner was working as a Chairman of the
Urban Co-Operative Bank, Thrissur and was also a
Pharmacist in the Eastern Medicals. He was earning a
monthly income of Rs.7,500/-. The petitioner contended
that the respondents were jointly and severally liable to
pay compensation to him, which he quantified at
MACA NOs. 435 OF 2009 & 667 of 2009 7
Rs.6,21,000/-, but limited to Rs.5,00,000/-.
3. The respondents 2 and 4 namely; the driver of
the car and rider of the motorcycle did not contest the
proceedings and were set ex parte. Although the 3 rd
respondent - the owner of the motorcycle appeared in the
claim petition, he did not file any written statement.
4. The 1st respondent, the owner of the car, filed a
written statement contending that although Crime No.199
of 2001 was registered by the Traffic Police Thrissur, the
same was referred by the Police as undetectable as per
memo dated 24.4.2002. The petitioner has suppressed
material facts and impleaded the 1st respondent as a party
in order to grab money. The 1st respondent's car was no
way connected with the alleged accident. The 1 st
respondent is a businessman hailing from Maharashtra,
and occasionally visits Kerala for his business purposes.
He admitted that the 2nd respondent was the driver of the
MACA NOs. 435 OF 2009 & 667 of 2009 8
car. Nevertheless, it was contended that the 1 st
respondent was camping at Mayur Tourist Home, Kannur
from 23.4.2001 to 26.4.2001. He visited Thrissur on
26.4.2001 and left the following day. The Police registered
a case against his car on a mistaken identity. The 1 st
respondent's car had not entered Thrissur prior to
26.4.2001. Nonetheless, it was admitted that the car had
a valid insurance policy issued by the 5 th respondent at the
time of the accident. Hence, the 1st respondent prayed
that the claim petition be dismissed.
5. The respondents 5 and 6, the insurer of the
motor cycle and the car filed separate written statements.
6. The 5th respondent contended that the
motorcycle was covered by comprehensive insurance
policy from 26.6.2000 to 25.6.2001. It was stated that as
per the police records, on 24.4.2001 a Maruthi Esteem
Car bearing Reg.No.MH-01B 4565 hit the motorcycle
MACA NOs. 435 OF 2009 & 667 of 2009 9
bearing Reg.No.KL 8 D 6203. However, the Police could
not trace the car or its driver and had filed a report before
the Judicial First Class Magistrate Court, Thrissur-1, as
undetected. Therefore, the 5th respondent is not liable to
pay any amount as compensation.
7. The 6th respondent filed a written statement
contending that the petitioner has no locus standi to
claim any relief as against the 6th respondent because as
per the police records the car was not seized or the driver
of the car was arrested. Therefore, the 6th respondent
denies the accident. There is a collusion between the
petitioner and the 1st respondent. It was the duty of the 1st
respondent to have informed the 6th respondent regarding
the accident and produced the records of the vehicle for
verification. Hence, the claim petition may be dismissed.
8. The petitioner and the doctor who issued
Ext.A13 disability certificate were examined as PW1 and
MACA NOs. 435 OF 2009 & 667 of 2009 10
PW2 and Exts.A1 to A15 were marked in evidence. The 1 st
respondent and two other independent witnesses were
examined as RWs. 1 to 3 and Exts.B1 and B2 were
marked in evidence.
9. The Tribunal, after analysing the pleadings and
materials on record, allowed the claim petition in part, by
arriving at the conclusion that the accident occurred due
to the negligence on the part of the respondents 2 and 4,
and the respondents 5 and 6 were directed to pay the
compensation amount of Rs.2,52,850/- with interest @ 7 %
per annum from the date of petition till the date of
payment and proportionate costs.
10. Aggrieved by the impugned award passed by the
Tribunal, the respondents 5 and 6 have filed MACA
No.435 of 2009 and dissatisfied with the quantum of
compensation, the petitioner has filed MACA No.667 of
2009.
MACA NOs. 435 OF 2009 & 667 of 2009 11
11. Heard, Smt.Deepa George, the learned counsel
appearing for the appellant/insurer in MACA No.435 of
2009 and Sri.Nimod.A.R., the learned counsel appearing
for the appellant/petitioner in MACA No.667 of 2009.
12. The questions that arise for consideration in this
appeal are (i) Whether the finding of the Tribunal, that the
respondents 2 and 4 were negligent in causing the
accident and consequentially, the respondents 5 and 6 are
liable to pay compensation is correct or not, and (ii)
Whether the quantum of compensation awarded by the
Tribunal is reasonable and just.
Question No.1
13. The specific case of the petitioner in the claim
petition was that, while he was riding pillion on the
motorcycle on 24.4.2001, due to the negligence on the
part of the respondents 2 and 4, the accident occurred on
a public road. Admittedly, the motorcycle was covered by
MACA NOs. 435 OF 2009 & 667 of 2009 12
a comprehensive insurance policy, as seen in the written
statement filed by the 5th respondent Insurance Company.
The son of the claim petitioner gave the first information
statement to the Thrissur Traffic Police on 28.4.2001,
pursuant to which Ext.A1 FIR in Crime No.199/2001 was
registered.
14. The petitioner while he was examined as PW1
testified that he was unconscious from 24.4.2001 to
28.4.2001. It is only after he gained consciousness that he
made his son give the FIS to the Police. The petitioner's
case is that the accident occurred due to the negligence
on the part of the drivers of both the vehicles. Although
the drivers of both vehicles namely, the 2 nd and 4th
respondents were impleaded as parties, both of them did
not choose to contest the proceedings and were set ex
parte.
15. The 1st respondent - the owner of the car - took
MACA NOs. 435 OF 2009 & 667 of 2009 13
the stand that his car was at Kannur on the relevant date
i.e., 24.4.2001 and he visited Thrissur only on 26.4.2001
and he left Thrissur on the following day.
16. The 1st respondent in his chief examination as
RW1, empathetically testified that his driver, the 2 nd
respondent, was hired by him from Kannur. On 27.4.2001,
the hotel boy at Thrissur told him that his car can be (sic)
involved in a motor accident.
17. On what basis or intuition the 1 st respondent
became aware of the accident is mysterious and not
discernible from his oral testimony. It is to be borne in
mind that the FIR was registered only on 28.4.2001, but
the 1st respondent came to learn of the accident on the
previous day before registration of the FIR. Therefore, it
is only to be perceived that the 1 st respondent's car was
involved in the accident and he was fully aware of the
accident even prior to the registration of the FIR.
MACA NOs. 435 OF 2009 & 667 of 2009 14
18. The Police, on the basis of the FIR, conducted
the investigation and filed Ext.A5 final report filed before
the jurisdictional Magistrate stating that even though they
went to Mumbai on 21.6.2001 - 27.6.2001, the car was not
in Mumbai, but had gone to Gujarat. Therefore, they could
not identify or seize the car or arrest the accused,
therefore, the case was undetected.
19. Interestingly, the 1st respondent (RW1) admitted
in his oral testimony that he had nothing to do in Gujarat
during the period from 21.6.2001 to 27.6.2001 and his car
was very much in Mumbai. Hence, the conclusion arrived
by the Police in the undetected report filed before the
jurisdictional Magistrate is per se unbelievable and cannot
be taken on its face value. It is only to be presumed that
the Police did not make any effort to seize the vehicle, but
conducted the investigation in a slipshod manner.
20. It is pertinent to state that the best person to
MACA NOs. 435 OF 2009 & 667 of 2009 15
have spoken about the accident was the 2 nd respondent,
the driver of the car, who was admittedly engaged by the
1st respondent. Though the 2nd respondent was a party in
the proceeding he did not contest the same. Similarly, the
1st respondent has not chosen to examine the 2 nd
respondent as his witness. Instead, he examined RWs 2
and 3 to prove that he was in Kannur on the uneventful
day, which according to me was totally irrelevant because
the material aspect was whether the car was in Thrissur
on 24.4.2001; which has not been proved by any cogent
evidence, but admitted by the testimony of RW1 that he
knew about the accident even prior to the registration of
the FIR.
21. It is also relevant to note that the respondents 3
and 4 - the owner and diver of the motorcycle - also did
not contest the proceeding. In fact, the insurer sought
leave of the Tribunal u/S.170 of the Motor Vehicles Act
MACA NOs. 435 OF 2009 & 667 of 2009 16
1988, as per order dated 29.9.2007 in I.A.No.8008 of
2005, to contest the claim petition on all grounds available
in law. Nevertheless, the insurer did not let in any
evidence to discredit the case of the petitioner.
22. The learned counsel appearing for the insurer
argued that in view of the law laid down in Oriental
Insurance Company Ltd., v. Meenavariyal and Others
(AIR 2007 SC 1609) and Reshma Kumari v. Madan
Mohan (2013 (2) KLT 304 (SC), the onus of proof was
on the petitioner to prove negligence on the part of the
drivers of the vehicles, in order to sustain his claim for
compensation u/S.166 of the Motor Vehicles Act.
23. Per contra, the learned counsel appearing for the
petitioner placed reliance on the decision of the Hon'ble
Supreme Court in Kaushnuma Begum v. New India
Assurance Company Ltd., (2001 (1) KLT 408 (SC) and
MACA NOs. 435 OF 2009 & 667 of 2009 17
contended that a victim in an accident is entitled to get
compensation, unless any of the exceptions would be
applied. It is well settled now, that in a claim petition filed
under Section 166 of the Motor Vehicles Act, 1988, the
claimant is expected to prove negligence on the part of
the driver of the offending vehicle based on
preponderance of probability and not prove to the hilt
based on the principles of beyond reasonable doubt.
24. On a comprehensive reappreciation of the
pleadings and materials on record, particularly, the fact
that the petitioner had specifically pleaded and given
evidence as PW1, that the accident occurred on account of
the negligence of the respondents 2 and 4 while driving
their respective vehicles and without any contra evidence
being let in by the respondents, I am fully convinced that
the petitioner has proved that there was negligence on the
part of respondents 2 and 4 in causing the accident.
MACA NOs. 435 OF 2009 & 667 of 2009 18
Therefore, I confirm the findings of the Tribunal that there
was negligence on the part of the respondents 2 and 4.
Accordingly, the owners of the vehicles, namely
respondents 1 and 3 are vicariously liable for act of
negligence of respondents 2 and 4 and, hence, the
respondents 5 and 6 - the insurer of the vehicles - are
liable to pay compensation to the petitioner.
25. The Hon'ble Supreme Court in National
Insurance Company Ltd., v. Balakrishnan and Others
(AIR 2013 SC 473) has held that a pillion rider on a
vehicle covered by comprehensive insurance policy is
entitled for compensation from the insurer. On the said
ground also, the 5th respondent is liable to pay
compensation to the petitioner, as he was a pillion rider on
a motor cycle covered by a package policy. Hence,
without any semblance of doubt, I answer Question No.1
in favour of the petitioner.
MACA NOs. 435 OF 2009 & 667 of 2009 19
Question No.II
26. The petitioner has averred in the claim petition
that he was employed as the Chairman in the Urban Co-
Operative Bank, Thrissur and he was also a Pharmacist by
profession working in the Eastern Medicals, and that he
was earning a consolidated monthly income of Rs.7,500/-.
The petitioner produced Ext.A8 certificate issued by the
Bank, which shows that the petitioner had an income of
Rs.58,220/- for the financial year 2000-2001. The
petitioner had not produced any material to prove his
employment as a Pharmacist. On a reading of Ext.A8, it is
seen that only Rs. 24,000/- was paid as the honorarium
and the balance amount of Rs.5,500/- was paid as sitting
fees Rs.7,605/- as TA/D/A, Rs.2,990/- as telephone
charges and Rs.18,125/- as inspection fees. Therefore, the
fixed income of the petitioner was Rs.24,000/- per annum.
Notional Income
MACA NOs. 435 OF 2009 & 667 of 2009 20
27. The Hon'ble Supreme Court in Ramachandrappa
vs. Manager, Royal Sundaram Alliance Insurance
Company Ltd., (2011 (13) SCC 236) has fixed the notional
income of a Coolie Worker in the year 2004 at Rs.4,500/-
per month.
28. Considering the ratio in the aforecited decision
and the fact that the petitioner was being given a total
remuneration of Rs.58,220/- in the year 2001, I am of the
opinion that the petitioner's notional income from his two
avocations can safely be fixed at Rs.3,500/- per month.
Loss of Earnings
29. It is on record that the petitioner was
hospitalized for a period of 46 days and he had sustained
28% permanent disability as per Ext.A13 disability
certificate proved through PW2. The Tribunal has found
that the petitioner was incapacitated for a period of 6
months.
MACA NOs. 435 OF 2009 & 667 of 2009 21
30. In view of the refixation of the notional income of
the petitioner at Rs.3,500/- per month and that he was
indisposed for a period of 6 months, I refix his loss of
earnings at Rs.21,000/- instead of Rs.12,000/- awarded by
the Tribunal.
Disability of the Petitioner
31. The petitioner had produced Ext.A13 disability
certificate which was proved through PW2. PW2 has
found that the petitioner has 28% permanent disability
due to the various injuries and fractures that he had
sustained and due to the shortening of his right lower
limp. Nevertheless, the Tribunal on finding that the
disability is on the higher side, fixed the disability at 20%.
32. In Rajkumar v. Ajaykumar (2011 1 KLT 620
SC), the Hon'ble Supreme Court has held that the proper
course to assess the disability of an injured is to refer the
person to a duly constituted medical board or by
MACA NOs. 435 OF 2009 & 667 of 2009 22
examining the doctor who issued the permanent disability
certificate.
33. In the instant case, the petitioner has produced
Ext.A13 and got it proved through PW2, that the
petitioner has a permanent disability of 28%.
34. In Union of India and another v. Talwinder
Singh (2012 5 SCC 480), the Hon'ble Supreme Court
has held that courts should not normally interfere with the
opinion of experts. It is observed that it would be safe for
the courts to leave such decision of the experts, who are
more familiar with the problems rather than expressing its
general opinion.
35. In view of the oral testimony of PW2 read with
Ext.A13 disability certificate, I am of the considered
opinion that the scaling down of disability of the petitioner
by the Tribunal to 20% for no apparent reason was
erroneous and wrong. The Tribunal has not given any
MACA NOs. 435 OF 2009 & 667 of 2009 23
cogent reason for arriving at such a conclusion.
Therefore, I set aside the said finding and fix the
disability of the petitioner as reflected in Ext.A13
disability certificate at 28%.
Multiplier
36. The Tribunal has taken the multiplier at '5'. In
view of the law laid down in Sarala Verma v. Delhi
Transport Corporation (2010) 2 KLT 802 SC) and the
subsequent host of decisions of the Hon'ble Supreme
Court particularly in Pappudeo Yadav v. Nareshkumar
and others (AIR 2020 SC 4424) the relevant multiplier
to be adopted is '7', as the petitioner was aged 63 years at
the time of accident.
Loss due to disability
37. In view of the refixation of the notional income of
the petitioner at 3,500/-, the percentage of disability at
MACA NOs. 435 OF 2009 & 667 of 2009 24
28% and the multiplier at '7', the petitioner is entitled for
compensation for loss due to disability at Rs.82,320/-
instead of Rs.24,000/- awarded by the Tribunal.
Loss of amenities
38. The petitioner had claimed an amount of
Rs.30,000/ as compensation for loss of amenities. It is on
record that the appellant had to be hospitalised for a
period of 46 days and was indisposed for a period of 6
months and has a permanent disability at 28% as per
Ext.A13 disability certificate. Hence, I am of the opinion
that the petitioner is entitled for enhancement under the
head 'loss of amenities' by a further amount of
Rs.10,000/-, that is an amount of Rs.20,000/- that is an
amount of Rs.20,000/-.
Bystander Expenses
39. The petitioner was hospitalised for a period of 46
days. The Tribunal has awarded an amount of Rs.4,000/-
MACA NOs. 435 OF 2009 & 667 of 2009 25
towards bystander expenses, which is on the lower side.
Hence, I fix the bystander expenses at Rs.200/- per day for
a period of 46 days amounting to Rs.9,200/-, i.e an
enhancement of Rs. 5,200/-.
40. With respect to the other heads of compensation,
I find that the Tribunal has awarded reasonable and just
compensation.
41. On an over all re-appreciation of the pleadings
and materials on record, the precedents referred to above,
I hold that the petitioner/appellant in MACA No.667 of
2009 is entitled for enhancement of compensation as
modified and recalculated above and given in the table
below for easy reference.
Head of claim Amount Amounts
Awarded by the modified and
Tribunal (in Rs.) recalculated by
this Court
MACA NOs. 435 OF 2009 & 667 of 2009 26
Loss of earnings 12,000/- 21,000/-
Transportation 2,000/- 2,000/-
Extra nourishment 3,000/- 3,000/-
Damages to clothing 500/- 500/-
Treatment expenses 1,77,380/- 1,77,380/-
Bystander expenses 4,000/- 9,200/-
Pain and sufferings 20,000/- 20,000/-
Loss of amenities 10,000/- 20,000/-
Loss due to disability 24,000/- 82,320/-
Total 2,52,850/- 3,35,400/-
In the result, MACANo. 435 of 2009 is dismissed and
MACA No.667 of 2009 No.667 of 2009 is allowed, by
enhancing the compensation by a further amount of
Rs.82,550/- with interest at the rate of Rs.7% per annum
on the compensation from the date of petition till the date
MACA NOs. 435 OF 2009 & 667 of 2009 27
of deposit, after deducting the period of 110 days, i.e, the
period of delay in preferring the appeal, as ordered by this
Court on 23.3.2021 in C.M.Appln.No.707 of 2009 and
proportionate costs. The respondents 5 and 6/appellant in
MACA No.435 of 2009 shall deposit the enhanced
compensation with interest and proportionate costs before
the Tribunal within a period of two months from the date
of receipt of a certified copy of this judgment. The
Tribunal shall disburse the enhanced compensation to the
appellant/petitioner in MACA No.667 of 2009 in
accordance with law. Needless to mention that if the
respondents 5 and 6 have already deposited any amount
pursuant to the award, only the balance amount need be
deposited as contemplated under law.
Sd/-
C.S.DIAS,
JUDGE
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