Kerala High Court
Managing Director vs Murugan on 13 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 13TH DAY OF SEPTEMBER 2021 / 22ND BHADRA, 1943
MACA NO. 1683 OF 2009
AGAINST THE AWARD DATED 21.05.2007 IN OP(MV)NO.1550/2003 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL ,NEYYATTINKARA,
THIRUVANANTHAPURAM
APPELLANT/1ST RESPONDENT:
MANAGING DIRECTOR,
TRANSPORT CORPORATION,
MADURAI DIVISION III,, NAGERCOIL.
BY ADV SRI.SUBHASH CYRIAC
RESPONDENT/ APPLICANT AND RESPONDENTS 2 AND 3:
1 MURUGAN,
CHENKAVILA,
AYIRA.P.O,
THIRUVANANTHAPUAM DISTRICT.
2 JONES,
S/O.MASILMONY,
21/36 A, MARAAPPADU,
VILAVANCODE TALUK,
KANYAKUMARI DISTRICT.
3 THE DIVISIONAL MANAGER,
ORIENTAL INSURANCE COMPANY LTD,
THIRUVANANTHAPURAM.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 13.09.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
M.A.C.A.No.1683/2009
-:2:-
Dated this the 13th day of September,2021
JUDGMENT
The appellant was the first respondent in O.P
(MV)No.1550/2003 on the file of the Motor Accidents
Claims Tribunal, Neyyattinkara. The first respondent
in the appeal was the claimant and the respondents 2
and 3 were the respondents 2 and 3 before the
Tribunal. The parties are, for the sake of convenience,
referred to as per their status in the claim petition.
2. The applicant had filed the claim petition
under Section 166 of the Motor Vehicles Act, 1988,
claiming compensation on account of the injuries that
he sustained on 15.09.2003. It was his case that on the
above date, while he was travelling in a vehicle
bearing registration No.TN-74-B-9406 from
Kaliyikkavila-Padanthalummodu National Highway,
when the vehicle reached a place named Ottamaram, a
vehicle bearing registration No.TN-74-N-0728
(offending vehicle), hit against the vehicle in which the
M.A.C.A.No.1683/2009
applicant was travelling. The applicant sustained
serious injuries, including a fracture and was treated
as an inpatient. The applicant was a labourer by
profession and earning a monthly income of Rs.3,500/-.
The accident occurred solely due to the negligence of
the offending vehicle, which was owned by the first
respondent. The vehicle in which the applicant was
travelling was owned by the second respondent and
insured with the third respondent. The applicant
claimed compensation from the respondents.
3. Another injured in the same accident also
filed O.P.(MV)No.1609/2003 before the very same
Tribunal.
4. The first respondent contested both the claim
petitions by filing written statements and refuting the
allegations in the claim petition. The first respondent
disputed the age, income and occupation of the
applicants in both the claim petitions. Nevertheless, it
was admitted that the offending vehicle belonged to
M.A.C.A.No.1683/2009
the first respondent. It was stated that there was no
negligence on the part of the driver of the offending
vehicle-'Rajagopal'. The amount of compensation
claimed was excessive and exorbitant.
4. The third respondent filed a written
statement contending that the accident occurred solely
due to the negligence of the driver of the offending
vehicle. Hence, the third respondent sought to be
exonerated of any liability.
5. The applicants in the two cases produced and
marked Exts.A1 to A6 in evidence. The driver of the
offending was examined as RW1 and the insurance
policy was marked in evidence as Ext.B1.
6. The Tribunal allowed the captioned original
petitions, by permitting the applicant to realise an
amount of Rs.44,400/- with interest and costs from the
first respondent.
7. Aggrieved by the impugned award, the first
respondent - owner of the offending vehicle is in
M.A.C.A.No.1683/2009
appeal.
8. Heard; Sri. Subhash Syriac, the learned
counsel appearing for the appellant/first respondent.
9. Even though this appeal was filed as early as
in the year 2009, the same has not been admitted,
since service of notice on the respondents were not
complete. It is only on 08.09.2021 that the service was
complete and the delay was condoned.
10. The principle grounds of challenge in this
appeal are:
(i) that the driver of the bus was not made a
party before the Tribunal. Hence, the
claim petition is bad for non-jonder of
necessary parties.
(ii) that the income of the applicant fixed by
the Tribunal was on the higher side.
Ground No.(i)
11. This Court in Oriental Insurance Company
Ltd.v. Shobana Omanakuttan and others
M.A.C.A.No.1683/2009
[2015 KHC 406] and Anuradha Varma v. State of
Kerala (1993 (2) KLT 777) has categorically held that,
even if the driver of the offending vehicle is not on the
party array, the claim petition is maintainable and is
not bad for non-joinder of necessary parties. The
owner and insurer of the vehicle are necessary parties,
if the vehicle is covered by valid insurance, otherwise,
only the owner is a necessary party. In the light of the
above declaration of law Ground No.(i) fails and the
same is answered against the applicant.
Ground No.(ii)
12. The applicant had claimed that he was a daily
labourer and earning a monthly income of Rs.3,500/-.
The Tribunal fixed the notional income of the applicant
at Rs.2,000/- per month.
13. In Ramachandrappa v. Manager, Royal
Sundaram Alliance Insurance Company Limited
[(2011) 13 SCC 236], the Hon'ble Supreme Court has
M.A.C.A.No.1683/2009
fixed the notional income of a coolie worker in the year
2004, at Rs.4,500/- per month.
14. Following the above benchmark and
considering the fact that the accident occurred in the
year 2003, I am of the firm opinion that the notional
income of the applicant fixed by the Tribunal at
Rs.2,000/- is justifiable and proper, if not on the lower
side. Therefore, I hold that Ground No.(ii) is also
untenable in law.
15. On a comprehensive appreciation of the
pleadings, materials on record, the elaborate findings
rendered by the Tribunal and also taking note of the
fact that the appeal is pending since in the year 2009
without admission, I do not find any error in the
compensation awarded by the Tribunal.
16. The Honourable Supreme Court in New
Indian Assurance Company Ltd. v. Kiran Singh &
Others [2004 AIR SCW 4212] has depreciated the
M.A.C.A.No.1683/2009
practice of insurance companies contesting genuine
claims in a routine manner and dragging the parties to
court and wasting enormous time and money.
17. It is to be borne in mind that the accident
occurred as early as on 15.09.2003. It is nearly two
decades that the applicant has been knocking at the
doors of the courts seeking compensation. It is trite,
that the Tribunals are permitted to do some guess
work and also exercise its discretion in awarding
reasonable and just compensation, for which there
cannot be any straight jacket formula based on
arithmetic exactitude. I find that the Tribunal has,
after a threadbare analysis of the facts, judicially
exercised its powers based on the provision of the Act
and the authoritative precedents of the Honourable
Supreme Court, arrived at the conclusion in the
impugned award. I do not find any justifiable grounds
in the memorandum of appeal warranting admission of
the appeal, which would only be a wastage of judicial
M.A.C.A.No.1683/2009
time and harassment to the respondents.
In the result, following the ratio in Kiran Singh
(supra), I hold that the appeal is devoid of any merits
and does not warrant any admission. Resultantly, the
appeal is dismissed. Taking note of the fact that,
despite service of notice on the applicant before the
Tribunal, there is no appearance for him before this
Court. The Tribunal shall avail the services of the
District Legal Services Authority and inform the
applicant that the appeal has been dismissed and that
he has right to recover the compensation amount,
pursuant to dismissal of this appeal. The Registry shall
forward a copy of this judgment to the Tribunal for
necessary compliance.
Sd/-
C.S.DIAS,JUDGE
DST //True copy/
P.A.To Judge
