Kerala High Court
Binu Abraham vs Joshy on 5 March, 2025
2025:KER:25526
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 5TH DAY OF MARCH 2025 / 14TH PHALGUNA, 1946
MACA NO. 354 OF 2014
AGAINST THE AWARD DATED 15.07.2013 IN OPMV NO.921 OF 2003 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA
APPELLANT:
JOSHY
AGED 51 YEARS
S/O. PHILIPOSE, KAKKERATH HOUSE, MANEED P.O., PIRAVOM,
ERNAKULAM DISTRICT. (1ST RESPONDENT IN MACT)
BY ADVS.
SRI.P.M.JOSHI
SMT.ELIZABETH KOSHY
RESPONDENT:
UNITED INDIA INSURANCE CO. LTD.
USHUS BUILDING, MAIN ROAD, PUNALUR, PIN-691 305.
BY ADV SMT.S.JAYASREE- SC
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 05.03.2025, ALONG WITH MACA.413/2014, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
MACA NOS. 354 OF 2014 2
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 5TH DAY OF MARCH 2025 / 14TH PHALGUNA, 1946
MACA NO. 413 OF 2014
AGAINST THE AWARD DATED IN OPMV NO.921 OF 2003 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA
APPELLANT:
BINU ABRAHAM
S/O. K.A.ABRAHAM, KADAVUMKULAMTHEKKEKARA HOUSE,
MANNATHOOR KARA, THIRUMARADY VILLAGE,
MUVATTUPUZHA.
BY ADVS.
SRI.K.T.SAJU
SMT.SIJI K.PAUL
RESPONDENTS:
1 JOSHY
AGED 51 YEARS
S/O. PHILIPOSE, KAKKERATH HOUSE, MANEED P.O.,
PIRAVOM, PIN-686664.
2 UNITED INDIA INSURANCE COMPANY LIMITED
USHUS BUILDING, MAIN ROAD, PUNALLOOR, PIN-691305.
3 ASHRAF
MACA NOS. 354 OF 2014 3
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THEKKUVILAPUTHENVEED HOUSE, KADAKKAL,
KOTTARAKKARA, PIN CODE-691536.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 05.03.2025, ALONG WITH MACA.354/2014, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
MACA NOS. 354 OF 2014 4
& 413 OF 2014
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JUDGMENT
Dated this the 5th day of March, 2025
The petitioner in O.P.(M.V.) No. 921/2003 on the file of the Motor
Accident Claims Tribunal, Muvattupuzha, is the appellant in
M.A.CA.No.413/2014. The 1st respondent in the O.P.(M.V.) is the appellant
in M.A.C.A.No. 354/2014. (For the purpose of convenience, the parties
are hereafter referred to as per their rank before the Tribunal).
2. The petitioner filed the above O.P. under Section 166 of the
Motor Vehicles Act, 1988, claiming compensation for the injuries sustained
in a motor vehicle accident that occurred on 22.12.2002. According to the
petitioner, on 22.12.2002 at about 8.00 a.m., while he was riding his
motorcycle along the public road, a jeep bearing Reg.No.KL-6/1318 driven
by the 1st respondent in a rash and negligent manner hit against the
motorcycle and as result of the accident, the petitioner sustained serious
injuries.
3. The 1st respondent is the driver cum owner, the 2nd respondent is
the insurer and 3rd respondent is the insured of the offending jeep. According
to the petitioner, the accident occurred due to the negligence of the driver of
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the offending vehicle. The quantum of compensation claimed in the O.P. is
Rs.6,30,000/-
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 documentary evidence
Exts.A1 to A15, B1 to B3 and X1.
6. After evaluating the evidence on record, the Tribunal found
negligence on the part of the driver of the offending vehicle, awarded a total
compensation of Rs.1,81,891/- and directed the insurer to pay the same. At
the same time, the Tribunal found that the vehicle was insured as a private
vehicle, but used as a motor cab and as such there was violation of policy
condition and hence permitted the 2nd respondent to recover the compensation
from the 1st respondent.
7. Aggrieved by the quantum of compensation awarded by the
Tribunal, the petitioner and aggrieved by the order permitting pay and
recovery the 1st respondent preferred these appeals.
8. Now the points that arise for consideration are the following:
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1) Whether the quantum of compensation awarded by
the Tribunal is just and reasonable?
2) Whether there was violation of policy condition by the
1st respondent?
9. Heard Sri. P.M Joshi, the learned Counsel appearing for the
petitioner/appellant for M.A.C.A.No. 354/2014, Sri. K.T Saju, the learned
Counsel appearing for the petitioner/appellant for M.A.C.A.No. 413/2014
and Smt. S. Jayasree and Sri. Unni K.K respective learned Standing Counsel
appearing for the Insurance Company.
10. The Point: In this case the accident as well as valid insurance
policy of the offending vehicle are admitted. The learned counsel for the 2nd
respondent /appellant would contend that, the offending vehicle was a private
vehicle to which the 1st respondent had obtained a taxi permit on 24.09.2002,
but he failed to intimate the matter to the insurer and to pay the additional
premium in respect of the public vehicle. It is true that the accident was on
22.12.2002 and on 24.09.2002, the 1st respondent obtained a taxi permit for
the said vehicle. It was in the above context that the learned counsel for the
2nd respondent contended that there was a violation of policy conditions, and
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as such, they are entitled to get an order for pay and recovery.
11. On the other hand, the learned counsel for the appellant would
argue that, at the time of the accident, there was no passenger in the said
vehicle and as such, it was not used for any commercial purpose but for
private use and as such, there was no violation of policy condition. Therefore,
he prayed for mulcting the liability on the insurer.
12. The learned counsel for the insurer relied upon the decision of a
Single Bench of this Court in Sainuddin v. George Thomas [2023 KHC
9679], in support of her argument that once the vehicle has been granted a
contract carriage permit, the vehicle shall have an insurance policy for a
contract carriage and in the absence of the same, the insurer is not liable to
indemnify the insured.
13. In paragraph 12, the learned Single Judge observe that,
12. The vehicle was converted into a contract carriage w.e.f. 2.9.2011
and the accident happened on 15.9.2011. As on the date of accident the
vehicle was a contract carriage. Exh. B1 - policy of insurance provides
for limitations as to use, limits of liability and general exceptions. The
limitations as to use read as under:
"The policy covers use of the vehicle for any purpose other than
(a) Hire or reward
(b) Carriage of goods (other than samples or personal luggage)
(c)Organised racing
(d) Pace making
(e) Speed testing and reliability trials
(f) Use in connection with motor trade"
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The conditions of Exh. B1 policy exclude the plying of vehicle for hire or
reward, viz., use as a contract carriage. Thus, there is a breach of a
specified condition of the policy as provided under S.149 (2) (a) (i) (a) of
the MV Act, a condition excluding the use of the vehicle as contract
carriage. Grant of contract carriage permit under S.74 of the MV Act
does not require any 'no objection' certificate from the insurer. However,
once the vehicle has been granted a contract carriage permit, the vehicle
shall have an insurance policy for a contract carriage. The accident
happened 12 days after the vehicle was converted into a contract
carriage. As on the date of accident, the vehicle had only a 'private car -
liability only policy' with a condition excluding its use as a contract
carriage. Thus, there is violation of the conditions of the policy by the
insured. Therefore, the liability cannot be fastened on the insurer.
However, in the facts and circumstances of the case and considering the
beneficial purpose of the enactment of the Motor Vehicles Act and to
meet the ends of justice, a direction to pay and recover the compensation
deserves to be issued against the insurer.
14. On the other hand, the learned counsel for the appellant relied
upon the decision of the Hon'ble Supreme Court in Fahim Ahmad & other
v. United India Insurance Co. Ltd and others [AIR 214 SC 2187], in
support of his argument that, unless at the time of the accident the vehicle was
used for commercial purposes, there is no violation of policy conditions. In
the above case, a trolley was attached to the tractor, which was carrying sand
for the purpose of construction of underground tank in the farm land for
irrigation purpose. Therefore the insurer has taken a contention that the tractor
was being used for commercial purposes and as such, there was a breach of
policy conditions.
15. However, the Apex Court, reversing the decision taken by the
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High Court, held in para 6 as follows:-
"6. Although the plea of breach of the conditions of policy was
raised before the Tribunal, yet neither any issue was frame nor
any evidence led to prove the same. In our opinion, it was
mandatory for respondent No. 1-Insurance Company not only to
plead the said breach, but also substantiate the same by
adducing positive evidence in respect of the same. In the
absence of any such evidence, it cannot be presumed that there
was breach of the conditions of policy. Thus, there was no
reason to faster the said liability of payment of the amount of
compensation awarded by the Tribunal on the appellants
herein."
16. Accordingly, in the above decision, the order of the High Court
permitting the insurer to pay and recover the compensation from the owner
was set aside.
17. He has also relied upon the decision of the Division Bench of
this Court in Suresh Kumar v. Oriental insurance Co. Ltd and others
[2015 (4) KHC 370], in which the Division held that the question to be
considered is whether at the time of the accident the vehicle was used for
private use or for commercial purposes. If it is found that the vehicle was used
for private use, it cannot be held that there was a violation of policy condition.
Admittedly, in this case at the time of the accident there was no passenger in
the vehicle except the driver, who was also the owner. Therefore, it is to be
held that in this case there is absolutely no evidence to show that at the time
of the accident the vehicle was used 'for hire or reward'. In the above
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circumstance, in the light of the above decisions, it is to be held that there was
no violation of policy conditions and as such, the finding of the tribunal
permitting the insurer to recover the compensation from the owner is liable to
be set aside.
18. The learned counsel for the original petitioner would argue that
the compensation awarded by the Tribunal is on the lower side. According to
him the petitioner was working as foreman in a company getting a monthly
income at Rs.5,000/- but the Tribunal fixed his monthly income at Rs.2000/-.
The learned counsel for the insurer would argue that the income fixed by the
tribunal is reasonable.
19. In this case, the petitioner has failed to prove the job or income
as claimed in the O.P., by adducing any evidence. As per the dictum laid
down by the Hon'ble Supreme Court in the decision in Ramachandrappa v.
Manager, Royal Sundaram Alliance Insurance Co. Ltd. [2011 (13) SCC
236], the notional income of a coolie, in the year 2002 will come to
Rs.3,500/-. Since the petitioner could not prove his job or income as claimed
in the OP, in the light of a dictum laid down in the decision of the Hon'ble
Supreme Court in Ramachandrappa (supra) , his notional income is liable
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to be fixed as that of a coolie, at Rs.3,500/-.
20. In the accident the petitioner sustained the following injuries:
"Fracture base of skull.
Nasal. oral bleeding.
Fracture of right frontal bone.
Fracture of right supraorbital margin.
Right frontal extradural haematoma.
Right temporal TIP extradural haematoma
Subarachnoid haemorrhage
Pneumocephalus.
Fracture of right glenoid.
Post traumatic exposure keratitis right eye
lateral rectus palsy left eye."
21. In this case the petitioner has not produced any disability
certificate and as such he is not entitled to get any compensation on the head
'loss of disability'.
22. Towards loss of earning, the tribunal has awarded only
Rs.12,000/- being the income for 6 months @ Rs.2000/-. Since his notional
income is re-fixed at Rs. 3500/-, towards loss of earning he is entitled to get a
sum of Rs. 21,000/- (3500x6 months)
23. Towards the head 'pain and sufferings', the Tribunal has
awarded Rs.25,000/- and towards 'loss of amenities of life' Rs. 20,000/- was
awarded. According to the learned counsel for the petitioner, the
compensation awarded on those heads are on the lower side.
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24. Considering the fact that, the petitioner has sustained very
serious injuries including four fractures, and he was treated as inpatient for 49
days, I hold that the compensation awarded on the heads pain and suffering
and loss of amenities are on the lower side and hence they are enhanced to
Rs.40,000/- and 25,000/- respectively.
25. Towards bystander expenses the tribunal has awarded a sum of
Rs. 4900/- at the rate of Rs.100 for 49 days. Considering the facts, the
bystander expense is enhanced to a sum of Rs. 7,350/- (150x49 days)
26. No change is required, in the amounts awarded on other heads,
as the compensation awarded on those heads appears to be just and
reasonable.
27. Therefore, the petitioners/appellants are entitled to get a
total compensation of Rs.2,13,341/-, 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 Loss of earning Rs.12,000/- Rs.21,000/-
2 Pain and sufferings Rs.25,000/- Rs.40,000/-
3 Loss of amenities Rs.20,000/- Rs.25,000/-
4 By-stander expenses Rs.4,900/- Rs.7350/-
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5 Extra nourishment charges Rs.6,000/- Rs.6,000/-
6 Transportation charges Rs.2,000/- Rs.2,000/-
7 Medical expenses Rs.1,11,991/- Rs.1,11,991/-
Total Rs.1,81,891/- Rs.2,13,341/-
Enhanced Rs.31,450/-
28. In the result, this Appeal is allowed in part, and 2nd respondent
is directed to deposit a total sum of Rs.2,13,341/- (Rupees Two lakhs thirteen
thousand three hundred forty one 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.
29. On depositing the aforesaid amount, the Tribunal shall disburse
the entire amount to the petitioner, excluding court fee payable, if any,
without delay, as per rules.
Sd/-
C. PRATHEEP KUMAR,
JUDGE
vnk/-
