Kerala High Court

Eswari vs M/S.Oriental Insurance Co. Ltd 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 &

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 &

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 &

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 &

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 &

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 &

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 &

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 &

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 &

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