Kerala High Court
Bhuvanachandran vs Angel Rose on 9 April, 2025
MACA Nos.1233, 1282 &1499 of 2015
2025:KER:30809
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 9TH DAY OF APRIL 2025 / 19TH CHAITHRA, 1947
MACA NO. 1233 OF 2015
OPMV NO.1294 OF 2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,
PERUMBAVOOR
APPELLANT/RESPONDENT
BHUVANACHANDRAN
S/O THANKAPPAN, MANATHUPRAMBIL HOUSE, ELANJIPRA POST,
CHALAKUDY, 680 001 ERNAKULAM DIST
BY ADVS.
SRI.VINOD VALLIKAPPAN
P.I. DAVIS PALAMATTATH ITTOOP
RESPONDENTS/PETITIONER/RESPONDENTS 2 AND 3
1 ANGEL ROSE
AGED 15 YEARS
(MINOR) (REP.BY MOTHER SINI JOHNSON W/O JOHNSON), D/O
JOHNSON, MUTTATHIL HOUSE, THURAVOOR, ANGAMALY,
ERNAKULAM DIST - 683 572
2 JOHNSON
S/O AUGUSTHY,MUTTATHIL HOUSE, THURAVOOR, ANGAMALY,
ERNAKULAM DIST - 683 572
3 M/S UNITED INDIA INSURANCE COMPANY LTD.
BRANCH OFFICE, PARK HOUSE ROAD, NORTH TRISSUR, TRISSUR
POST - 683 572
BY ADVS.
K.SHERIN MOHAN
AGINOV MATHAPPAN
THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 13.3.2025, ALONG WITH MACA.1282/2015 AND 1499/2015, THE COURT
ON 09.04.2025 DELIVERED THE FOLLOWING:
MACA Nos.1233, 1282 &1499 of 2015
2025:KER:30809
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 9TH DAY OF APRIL 2025 / 19TH CHAITHRA, 1947
MACA NO. 1282 OF 2015
OPMV NO.1294 OF 2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL ,
PERUMBAVOOR
APPELLANT/3RD RESPONDENT IN THE OP
UNITED INDIA INSURANCE CO.LTD
THRISSUR, REPRESENTED BY THE DEPUTY MANAGER, UNITED
INDIA INSURANCE COMPANY LIMITED, REGIONAL OFFICE,
ERNAKULAM, SARANYA, HOSPITAL ROAD, KOCHI -11.
BY ADV SMT.RAJI T.BHASKAR-SC
RESPONDENTS/CLAIMANT & RESPONDENTS 1 AND 2 IN THE OP
1 ANGEL ROSE (MINOR)
D/O. JOHNSON, MUTTATHIL HOUSE, THURAVUR, ANGAMALY,
REPRESENTED BY HER MOTHER SINI JOHNSON, W/O. JOHNSON,
MUTTATHIL HOUSE, THURAVUR - 683 586.
2 BHUVANACHANDRAN
S/O. THANKAPPAN, MANATHUPARAMBIL HOUSE, ELANJIPRA P.O.,
CHALAKKUDY, PIN - 680 001 (DELETED)
3 JOHNSON
S/O. AUGUSTHY, MUTTATHIL HOUSE, THURAVUR, ANGAMALY -683
586
(RESPONDENTS 2 AND 3 ARE DELETED FROM THE PARTY ARRAY
AS PER ORDER DATED 17/02/2015 IN IA 4408/2015 IN MACA
1282/2015)
THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 13.3.2025, ALONG WITH MACA.1233/2015 AND 1499/2015, THE COURT
ON 9.4.2025 DELIVERED THE FOLLOWING:
MACA Nos.1233, 1282 &1499 of 2015
2025:KER:30809
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 9TH DAY OF APRIL 2025 / 19TH CHAITHRA, 1947
MACA NO. 1499 OF 2015
OPMV NO.1294 OF 2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL ,
PERUMBAVOOR
APPELLANT/PETITIONER IN THE OP
ANGEL ROSE (MINOR)
D/O. JOHNSON, AGED 12 YEARS, MUTTATHIL
HOUSE,THURAVOOR,ANGAMALY,REPRESENTED BY HER MOTHER SINI
JOHNSON,W/O. JOHNSON,MUTTATHIL HOUSE,THURAVOOR,ANGAMALY
BY ADV SMT.ANUPAMA JOHNY
RESPONDENT/RESPONDENTS 1 AND 3 IN THE OP
1 BHUVANACHANDRAN
S/O. THANKAPPAN,MANATHUPARAMBIL HOUSE,ELANJIPARA
P.O,CHALAKKUDY PIN 680 001
2 UNITED INDIA INSURANCE CO.LTD
BRANCH OFFICE, PARK HOUSE ROAD, NORTH THRISSUR,
THRISSUR P.O
BY ADVS.
P.I. DAVIS PALAMATTATH ITTOOP
SMT.RAJI T.BHASKAR
THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 13.3.2025, ALONG WITH MACA.1233/2015 AND 1282/2015, THE COURT
ON 9.4.2025 DELIVERED THE FOLLOWING:
MACA Nos.1233, 1282 &1499 of 2015
1
2025:KER:30809
JUDGMENT
Dated : 9th April, 2025
The 1st respondent in OP(MV).1294/2009 on the file of the Motor
Accidents Claims Tribunal Perumbavoor is the appellant in MACA
1233/2015. The 3rd respondent in the above OP is the appellant in MACA
1282/2015 and the petitioner in the OP is the appellant in MACA 1499 of
2015. (For the purpose of convenience, the parties are hereafter referred to as
per their rank before the Tribunal)
2. The above claim petition was filed under Section 166 of the
Motor Vehicles Act by the mother of a minor child aged two years claiming
compensation for the injuries sustained in a motor vehicle accident that
occurred on 10.4.2005. According to the petitioner, on 10.4.2005, at about
5.00 pm a tempo van bearing registration No.KL-8/F/637 driven by the 2 nd
respondent along the Choondanai - Kidangoor road in reverse direction in a
rash and negligent manner, knocked down the child and as a result of which
the child sustained serious injuries.
3. The 1st and 3rd respondents are the owner and insurer of the vehicle
respectively. The 2nd respondent is the driver of the offending vehicle.
According to the petitioner, the accident occurred due to the negligence of the
driver of the offending vehicle. The quantum of compensation claimed in the
O.P. is Rs.27,51,000/- limited to 15,00,000/-.
MACA Nos.1233, 1282 &1499 of 2015
2025:KER:30809
4. The insurance company filed a written statement, admitting the
accident as well as policy, but disputing the negligence on the part of the
driver of the offending vehicle.
5. The evidence in the case consists of the oral testimonies of PW1 and
RW1 and documentary evidence Exts.A1 to A14, and Exts.B1 to B3.
6. After evaluating the evidence on record, the Tribunal found that the
accident occurred due to the negligence of the 2 nd respondent, awarded a
compensation of Rs.12,55,123/- and directed the 3 rd respondent/insurer to pay
the same. The Tribunal further permitted the 3rd respondent to recover the
compensation from the 1st respondent as it found that at the time of the
accident, the impugned vehicle had no valid permit.
7. Aggrieved by the quantum of compensation awarded by the
Tribunal, the petitioner, 1st respondent and 3rd respondent preferred MACA
1499/2015, MACA 1233/2015 & MACA 1282/2015) respectively.
8. Now the point that arise for consideration is the following:
Whether the quantum of compensation awarded by the
Tribunal is just and reasonable?
9. Heard Sri.P.I.Davis, Smt.Anupama Johny and Smt.Raji T.Bhaskar
the learned Counsel appearing for the appellants, and Smt.K.Sherin Mohan the
learned Standing Counsel for the respondent.
10. The Points: In this case the accident as well as valid insurance
policy of the offending vehicle are admitted. As per Ext.A7 wound certificate
MACA Nos.1233, 1282 &1499 of 2015
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and Exts.A8 to A12 discharge summaries, the child sustained the following
injuries:
1. Multiple contused abrasions of lower limb, Pelvis, abdomen.
2. Flaccid parapelgia
3. Bleeding from urethra
4. Splenic laceration
5. Fracture right trochanter
6. Spinal cord contusion D4 and D5
7. Paraplegia
8. Neurogeneric bladder
11. As per Ext.A1 disability certificate issued by the Medical Board
the permanent physical disability of the child was assessed as 90%.
12. At the time of arguments, the learned counsel for the 1 st
respondent would argue that the 2nd respondent who was the driver of the
tempo van is none other than the father of the child. He would also argue that
even before the accident, as per Ext.B3 document, the offending vehicle was
sold to the 2nd respondent. According to him, the Tribunal has not considered
the above aspects while disposing of the claim petition. On the other hand, the
learned counsel for the 3rd respondent would argue that since the offending
vehicle had no fitness certificate at the time of the accident, the Tribunal was
not justified in mulcting the liability on them. Therefore, he prayed for
exonerating the 3rd respondent. The learned counsel for the petitioner would
argue that the compensation awarded by the Tribunal is on the lower side. The
MACA Nos.1233, 1282 &1499 of 2015
2025:KER:30809
learned counsel for the insurer would further argue that since the victim is a
child of two years, the decision of the Hon'ble Supreme Court in Mallikarjun
v. Divisional Manager, The National Insurance Company Limited and
Ors. MANU/SC/0878/2013 is to be applied. Therefore, according to him, the
Tribunal was not justified in awarding compensation for pain and sufferings,
loss of amenities etc.
13. In this case, by applying the dictum in Master Mallikarjun
(supra), the Tribunal has fixed the loss of disability at a sum of Rs.500000/-. In
addition to the same, Rs.150000/- was given for pain and sufferings and
Rs.100000/- was awarded for loss of amenities of life. Further, a sum of
Rs.300000/- awarded towards future bystander expenses. The amount of
compensation payable as per the dictum in Master Mallikarjun (supra) is
limited. If the above decision is applied, separate compensation could not be
awarded for pain and sufferings and loss of amenities. Therefore, the Tribunal
was not justified in applying the above decision in this case. Even the above
decision provides for applying different yardstick in exceptional
circumstances. Since in this case the child suffered 90% permanent physical
disability, completely bedridden and requires the assistance of a bystander, it
is to be taken as an exceptional case, as the compensation prescribed in
Master Mallikarjun (supra) will not be able to provide just and reasonable
compensation to the petitioner.
MACA Nos.1233, 1282 &1499 of 2015
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14. As per the decision of the Hon'ble Supreme Court in
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance
Co.Ltd, {2011 (13) SCC 235), the notional income of a Coolie during the year
2005 will come to Rs.5000/-. Therefore, the learned counsel for the petitioner
prayed for fixing the notional income of the petitioner above that of a coolie
during the relevant period. Since the accident in this case was in the year 2005,
in the light of the decision of the Hon'ble Supreme Court in
Ramachandrappa (supra) the notional income of the petitioner is fixed as
that of a Coolie at Rs.5000/-. Along with the same, 40% of the income is to be
added towards future prospects and the multiplier to be applied is 15.
Therefore, the loss of disability will come to Rs.11,34,000/-.
15. Since the child is completely bedridden and suffering from 90%
disability he requires the assistance of a bystander. In the decision in Kajal v.
Jagdish Chand and Others, 2020 KHC6114, the expense of a bystander was
fixed by the Apex Court at Rs.5,000/- and the multiplier applied was 18. In the
above circumstances, towards bystander expense, the petitioner is entitled to
get a compensation of Rs.5000/- per month for a period of 18 years, ie
Rs.10,80,000/- (5000 x 12 x 18).
16. Towards the head 'pain and sufferings', the Tribunal has
awarded Rs.1,50,000/-, and towards 'loss of amenities of life' Rs.1,00,000/-
was awarded. According to the learned counsel for the petitioner, the
compensation awarded on those heads are on the lower side. Considering the
MACA Nos.1233, 1282 &1499 of 2015
2025:KER:30809
fact that the child suffered 90% permanent physical disability, completely
bedridden and requires the assistance of a bystander, I hold that, towards pain
and suffering and loss of amenities of life Rs.5,00,000/- each would be just
and reasonable.
17. Towards the head 'Future medical expense' the Tribunal has
awarded Rs.1,00,000/-. Since the same appears to be on the lower side, the
compensation awarded on the head 'future medical expense' is enhanced to
Rs.2,00,000/-, which will carry interest only from the date of the award of the
Tribunal.
18. No change is required in the amounts awarded on other heads, as
the compensation awarded on those heads appears to be just and reasonable.
19. Therefore, the petitioner is entitled to get a total compensation of
Rs.35,03,123/-, as modified and recalculated above and given in the table
below, for easy reference:
Sl.
No. Head of Claim Amount awarded by Amount Awarded in
Tribunal (in Rs.) Appeal (in Rs.)
1 Transport to hospital 15000 15000
2 Extra nourishment 50000 50000
3 Damage to clothes etc 1000 1000
4 Medical expense 23123 23123
5 Attendance expenses 16000 1080000
6 Pain and sufferings 1,50,000 500000
7 Loss of amenities etc. 1,00,000 500000
8 Disability 500000 1134000
9 Future treatment expense 100000 200000
MACA Nos.1233, 1282 &1499 of 2015
2025:KER:30809
10 Future attendant expense 300000 Included in column 5
Total 12,55,123 35,03,123
Enhanced amount 22,48,000
20. The Tribunal found that the vehicle had no permit at the time of
the accident. The Tribunal therefore directed the 3rd respondent to recover the
compensation from the 1st respondent, after paying the same to the petitioner.
Before this Court also, respondents 1 and 2 have not produced valid permit of
the offending vehicle. Therefore, the right of recovery given to the 3 rd
respondent is liable to be retained. Since there is valid policy the prayer for
exoneration cannot be allowed.
21. The learned counsel for the 1st respondent prayed for remanding
the matter to the Tribunal so that he will get an opportunity to prove that even
before the accident he had sold the vehicle to the 2nd respondent. According to
the learned counsel, otherwise, the 1st respondent will lose his right to recover
the compensation from the 2nd respondent.
22. In the decision in Sreekumar v. Abdeen, 2013 (3) KLT 542,
relied upon by the learned counsel, the question that arose for consideration
before the learned Single Judge was the inter se dispute between the registered
owner and the defacto owner of the offending vehicle and right of the
registered owner to recover compensation paid to the injured from the de facto
owner in a proceeding initiated by the injured before the Motor Accident
Claims Tribunal.
MACA Nos.1233, 1282 &1499 of 2015
2025:KER:30809
23. In answer to the above question, the learned Single Judge held in
paragraph 7 that :
"Once it is found that there is a transfer of the vehicle by the
registered owner to the de facto owner before the accident, there is
no reason why the registered owner should not be given the right to
recover the amount (if any realized from him by the claimant) from
the de facto owner as provided in S.174 of the Act."
24. Merely because the vehicle was transferred, it does not mean that
the appellant stands absolved of his liability to a 3 rd person. So long as his
name continues in the RTO records, he remains liable to a 3 rd person
(P.P.Mohammed v. K.Rajappan and Ors., 2003 ACJ 1595).
25. In the decision in T.V.Thomas v. Chacko P.M and Ors. AIR
2001 SC 3939, the appellant had sold the vehicle to the 1 st respondent, but his
name continued in the records of RTO as owner and the accident occurred
thereafter. The High Court held that the appellant continued to be the owner
and is liable to pay compensation to the LRs of the deceased, since the
insurance policy was 'Act only policy'. However, the Apex Court held that the
appellant cannot be said to be the owner under the Motor Vehicles Act. It was
further held by the Apex Court that the appellant continued to remain liable to
3rd parties as his name continued in the records of RTO as owner. It was also
held that the appellant could not escape the liability by merely joining the 1 st
respondent in the appeal. In the above circumstances, the Apex Court further
MACA Nos.1233, 1282 &1499 of 2015
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held that the appellant being liable can adopt appropriate proceedings against
the respondent (subsequent owner), if allowed by law.
26. At the time of arguments, an attempt was made by the learned
counsel for the 1st respondent to show that the accident occurred not at a public
place but at the compound of the residence of the 2nd respondent. However, on
a perusal of Ext.A6 charge-sheet produced in this case it can be seen that at the
time of the accident the offending vehicle was taken in reverse direction from
the public road. Therefore, I do not find any merits in the argument advanced
by the learned counsel for the 1st respondent that the accident occurred not at
any public place, but at the compound of the residence of the 2nd respondent.
27. The case of the 1st respondent is that as early as in the year 1999
he has sold the offending vehicle to the 2 nd respondent as per Ext.B1
agreement. In this case the accident occurred in the year 2005. At first, when
notice was received from the Tribunal in the claim petition, the 1 st respondent
remained ex parte. Thereafter, the 3rd respondent/insurer filed I.A.3553/2011
calling for respondents 1 and 2 to produce the permit and fitness certificate of
the offending vehicle. Though notice was served in the said I.A to respondents
1 and 2 again, they remained absent. Thereafter only in the year 2014 the 2nd
respondent filed an application before the Tribunal to set aside the ex parte
order and only thereafter he came up with the case that in the year 1999 he had
sold the offending vehicle to the 2 nd respondent as per Ext.B1 agreement. Even
when he finally appeared before the Tribunal to contest the claim petition, he
MACA Nos.1233, 1282 &1499 of 2015
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has not chosen to transfer the ownership from his name to that of the 2 nd
respondent. In the year 2014 when he was examined as RW1 before the
Tribunal, he continued to be the registered owner of the offending vehicle, that
is about 14 years after the alleged execution of Ext.B1 agreement. Such a
finding by the Tribunal in paragraph 58 of the award is not even challenged in
the appeal.
28. At the time of examination before the Tribunal the 1 st respondent
had no satisfactory explanation as to why he continued to be the registered
owner of the offending vehicle. When a question was put to that effect, he
replied that on receipt of the notice from the Tribunal he approached the 2 nd
respondent and he agreed to do the needful. It is also revealed that the 1 st
respondent was a seasoned driver having experience of about 30 years who
know the proceedings to be effected for transferring the ownership of a
vehicle. During the cross-examination of RW1 at one stage he happened to
admit that he himself was the owner of the offending vehicle at the time of the
accident in 2005. It is true that subsequently he changed his version and
deposed that he has transferred the ownership in the year 1999. The Tribunal
refused to believe the evidence of RW1 for several reasons. One of the reasons
is that though he claimed that he had sold the vehicle in the year 1999, he had
not changed the ownership before the RTO even in the year 2014. Even at the
time of the arguments before this Court also, he has not produced any
documents to show that even after 2014 he had changed his name before the
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st
RTO. The 1 respondent has not offered any explanation for not changing the
ownership of the vehicle. Even in the memorandum of appeal he has not given
any explanation in continuing his name as the insured as well as the registered
owner of the offending vehicle. In the memorandum of appeal the only ground
taken by him is that at the time of the accident he was not the owner and it was
the 2nd respondent who was the owner. At one time he continues to be the
insured as well as the registered owner of the vehicle and at the same time he
takes a contention that he has sold the vehicle in favour of the 2 nd respondent
as early as in the year 1999.
29. Though this accident is of the year 2005, even now the claimants
could not enjoy the fruits of the Award. At this belated stage, it is not at all just
and proper to remand the matter again for giving another opportunity to the 1 st
respondent to prove that he had already sold the vehicle to the 2 nd respondent.
Therefore, I do not find any merits in the above argument advanced by the
learned counsel for the 1st respondent and as such the said prayer is liable to be
rejected. At the same time, I make it clear that as held by the Hon'ble Supreme
Court in T.V.Thomas (supra), the 1st respondent can proceed against the 2 nd
respondent, if he is the defacto owner of the offending vehicle, in appropriate
proceedings, if allowed by law.
30. In the result, the Appeals filed by the 1 st respondent and 3rd
respondent (MACA 1233 of 2015 and MACA 1282 of 2015) are dismissed
MACA Nos.1233, 1282 &1499 of 2015
2025:KER:30809
and the Appeal filed by the petitioner (MACA 1499 of 2015) is allowed as
follows:
31. Respondent No.3 is directed to deposit a total sum of
Rs.35,03,123/- (Rupees thirty five lakh three thousand one hundred and
twenty three only), less the amount already deposited, if any, along with
interest @ 8% per annum from the date of the petition till deposit/realisation,
with proportionate costs, within a period of two months from today.
Thereafter, the 3rd respondent could recover the compensation from the 1st
respondent.
32. On depositing the aforesaid amount, the Tribunal shall disburse
25% of the entire amount, excluding excess court fee payable, if any, to the
petitioner, forthwith.
33. The Tribunal is permitted to decide, after considering the
welfare, well being and the best interest of the petitioner, whether the balance
amount is to be disbursed in full, forthwith or in installments or to be
deposited in a Nationalised bank in fixed deposit in the name of the petitioner
and to permit withdrawal of interest alone for the time being.
Sd/-
C.Pratheep Kumar, Judge
Mrcs/21.3.25
