Albin K.P. v. Roy K.A. and Joshi and United India Insurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` WEDNESDAY, THE 21[ST] DAY OF FEBRUARY 2024 / 2ND PHALGUNA, 1945 ``` ## **`MACA NO. 1201 OF 2013`** ``` AGAINST THE AWARD DATED 14.02.2013 IN OP(MV) 302/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA ``` ## **`APPELLANT/PETITIONER:`** ``` ALBIN K.P. S/O.PAULY,KALLIPARAMBIL HOUSE, P.O.VATTANATHARA,THRISSUR DISTRICT. ``` ``` BY ADV SRI.P.V.CHANDRA MOHAN ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1ROY K.A. S/O.ANTO,KARUPPAI HOUSE, P.O.CHENGALORE, THRISSUR, DISTRICT-680312. 2JOSHI S/O.RAPPAI,KALATHINGAL HOUSE, KANNAMPUTHUR THORAVU, THRISSUR DISTRICT-680001. 3UNITED INDIA INSURANCE CO.LTD REPRESENTED BY DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO.LTD, DIVISIONAL OFFICE,THRISSUR-680001. ``` ``` BY ADVS. SRI.BENOJ C AUGUSTIN SRI.A.A.MOHAMMED NAZIR SMT.J.KASTHURI SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.SEBIN THOMAS SRI.P.E.SAJAL SRI.VIVEK V. KANNANKERI ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1201 OF 2013 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant was the petitioner in O.P.(MV)No.302/2007 on the files of the Motor Accidents Claims Tribunal, Irinjalakuda. The said claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 28.12.2004. According to him, the accident occurred when he was hit by an autorickshaw bearing Registration No.KL-8/H 6537, driven by the 2[nd] respondent in a rash and negligent manner. The 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the said autorickshaw. The appellant was a Plus-two student aged 18 years at the time of the accident and the injuries resulted in permanent disability as well. The claim petition was submitted in such circumstances. 2. The 3[rd] respondent/insurer alone contested the matter by filing a written statement, wherein they admitted the existence of a valid policy. However, they denied the liability on the ground that the vehicle had no fitness certificate at the time of the accident. They also disputed the quantum of compensation. Accordingly, they sought exoneration from the liability. The ``` MACA NO. 1201 OF 2013 ``` ``` 3 ``` appellant was examined as PW1 and marked Exts.A1 to A11 from his side. No evidence was adduced by the respondents. 3. After the trial, the Tribunal found that the accident occurred due to the negligence of the 2[nd] respondent. However, as it was found that the vehicle was not covered with a fitness certificate at the time of the accident, the 3[rd] respondent insurer was exonerated from liability. The quantum of compensation was fixed as Rs.45,226/- and the same was permitted to be recovered from the 1[st] and 2[nd] respondents, with interest @ 6% per annum from the date of petition till 18.06.2009 and thereafter @ 7.5% per annum from 07.09.2012 till realisation with proportionate costs. This appeal is submitted by the appellant in such circumstances mainly seeking enhancement of compensation. 4. Heard Sri. P.V. Chandramohan, learned counsel appearing for the appellant and Sri.Nagaraj Narayanan, learned counsel appearing for respondents 1 and 2 and Sri.A.A. Mohammed Nazir, learned counsel appearing for the the 3[rd] respondent Insurance Company. 5. Even though no specific grounds have been raised, in ``` MACA NO. 1201 OF 2013 ``` ``` 4 ``` the memorandum of appeal challenging the exoneration of the Insurance company, the said contention was raised by the appellant when the matter came up for consideration. The learned counsel appearing for the insurer opposed the contention by pointing out that neither the affected parties i.e. the owner or driver have come up in appeal challenging the said finding nor the appellant has raised any grounds challenging the exoneration. Therefore, the said contention cannot be raised in this appeal as it is beyond the scope of this appeal. However, I am not inclined to accept the said contention. Of course, it is true that the said finding of the Tribunal is not challenged by raising it as a ground in this appeal and the affected parties have also not filed an appeal against the same. But the fact that the question of exoneration of Insurance Company is a crucial matter which affects the recoverability of the quantum of compensation awarded by the Tribunal. The purpose of the provisions in the Motor Vehicles Act relating to the adjudication of the claim for compensation for motor accident is to ensure “just compensation” to the victim as expeditiously as possible. While ensuring the sufficiency of ``` MACA NO. 1201 OF 2013 ``` ``` 5 ``` compensation, the Tribunal and this Court also has an obligation to ensure the speedy recovery of the said compensation so as to meet the difficulties of the victims due to the accident. Here in this case as far as the exoneration of the Insurance Company is concerned, the same was made merely on the reason that the vehicle was being plied without any valid fitness certificate. As far as the operation of the vehicle without a fitness certificate is concerned, the same can only be a violation of the terms and conditions of the policy which is a dispute between the insurer and the insured. Therefore, under no circumstances the same can have any impact on the claim of the victim, who is a third party as far as the insurance policy is concerned. The scheme of the Motor Vehicles Act is to ensure that the victim of motor accident gets the compensation which he is entitled for as expeditiously as possible and the concept of the mandatory insurance coverage for covering the risk of the third parties was introduced with that objective in mind. Thus, the scheme of the provisions relating to the motor accident compensation contemplated under the Motor Vehicles Act, is to ensure the compensation to the victim, ``` MACA NO. 1201 OF 2013 ``` ``` 6 ``` irrespective of the dispute pending between the insurer and the insured. Since the violation of terms and conditions of the policy is strictly a dispute between the insurer and the insured, it can be settled between the said parties, without having any impact upon the status of the victim in a motor vehicle accident. Therefore, the only course open to the Tribunal, when the question of violation of policy conditions arises is to impose the primary liability to pay the compensation upon the insurer at the first instance, by permitting them to recover the said compensation from the insured or any other person responsible for the accident. In this case despite the fact that, this was the proper procedure to be followed, the Tribunal did not adopt the said method and instead exonerated the insurer from the liability, completely forgetting the purpose of the provisions under the Motor Vehicles Act, relating to the adjudication of claim. Therefore, it is a patent illegality and when such illegality is brought to the notice of this Court, this Court cannot discard the same, by accepting hyper technical pleas as to the lack of challenge in this regard. Therefore, I am of the firm view that, even in the absence of any challenge, in the appeal ``` MACA NO. 1201 OF 2013 ``` ``` 7 ``` submitted by the appellant, it is the duty of this Court to rectify such patent illegalities, when it is brought to the notice of this Court. Therefore, I hold that, the finding of the Tribunal exonerating the 3[rd] respondent insurer from the liability was a patent illegality and it requires to be interfered with. Accordingly, the said finding is set aside by holding that the 3[rd] respondent Insurance Company shall be liable to pay the compensation at the first instance, with the liberty to recover the said compensation from the owner and driver of the said vehicle. 6. The next aspect relates to the quantum of compensation. The learned counsel for the appellant points out that, even though the appellant sustained a physical disability to the extent of 12% which was certified by a competent Doctor as evidenced by Ext.A8, no compensation for disability was granted. It is discernible from the records that, Ext.A8 disability certificate was proved by the appellant by examining the Doctor who issued the said certificate as PW1. On going through Ext.A8 disability certificate it can be seen that a detailed description of the injuries sustained by the appellant has been made and the difficulties ``` MACA NO. 1201 OF 2013 ``` ``` 8 ``` arising therefrom are also seen mentioned. It is evident therefrom that the appellant sustained the following injuries in the accident: segmental fracture tibia middle 3rd (L)leg, lacerated wound over the dorsum of (L)foot with extensor hallucis longus tendon injury. He was treated with operative fixation of the fracture with interlocking nailing, wound debridement and tendon repair alongwith other supportive measures and was discharged on 04.01.05. The implants were removed by a second operation in the same hospital (D.O.A:07.11.06). Besides the same, the other difficulties noted by the Doctor, consequent to the injuries are as follows: 1. Surgical scar over the (L)knee and leg. 2. Curvilinear wound scar over the dorsum of (L)foot. 3. (L)leg has got an external rotation deformity 4. Decreased range of rotations of the (L)ankle and foot. 5. Weakness of extension of the (L)big toe. 6. Sensory blunting over the lateral aspect of the (L)leg 7. Radiologically, malunited fracture (L)tibia, implant has been removed. After taking note of the above aspects, the Doctor has certified the percentage of disability as 12%. Even though the Tribunal did not find any discrepancy in the said certificate, no compensation was ``` MACA NO. 1201 OF 2013 ``` ``` 9 ``` awarded to the appellant for disability, mainly on the ground that, as a student, there was no actual loss of income. However, I am not inclined to accept the said findings. This is particularly because, even though the appellant was not an earning member as on the date of the accident, the fact he was a student aged 18 years and was an able-bodied man at the time of the accident, cannot be ignored. In near future he would start earning and at that point of time, the disability suffered by him will cause serious difficulties for him. Since what we are concerned is with respect to the actual loss of earning capacity of the victim, the fact that the earning capacity of the victim has been affected substantially by the injuries suffered, cannot be ignored and granting no compensation under the said head merely because of the reason that, at the time of the accident he was a non-earning member, would be an injustice. The fact that, he has the potential to be an earning member in the near future, cannot be ignored. Therefore, I am of the view that, the reason adopted by the Tribunal to reject the claim of the appellant for compensation for disability and loss of earning capacity is not at all legally sustainable. In such ``` MACA NO. 1201 OF 2013 ``` ``` 10 ``` circumstances, I deem it appropriate to grant a reasonable amount under this head as well. 7. Since the appellant was a non-earning member at the time of the accident, for the purpose of assessing the monthly income, the amount an able bodied person would have earned at the relevant time, should be taken as the criteria. When this aspect is taken into account, it is to be noted that in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236] the Honourable Supreme Court was pleased to take the monthly income of an ordinary worker as Rs.4,500/- for the year 2004. In this case also the accident occurred in the year 2004 and hence the said monthly income can be accepted as the reasonable monthly income for assessment of compensation. Thus, while assessing the compensation for disability with the monthly income as Rs.4,500/and taking the percentage of disability as 12%, as certified in Ext.A8, the amount of compensation under this head would come to Rs.1,16,640/- (4,500 x 12 x 18 x 12/100). 8. The next head which requires consideration is pain ``` MACA NO. 1201 OF 2013 ``` ``` 11 ``` and suffering. The amount awarded by the Tribunal is Rs.12,000/-. I have already discussed the nature of injuries in the above paragraph. Consequent to the said injuries the appellant had undergone inpatient treatment for ten days. Even after the discharge from the hospital, he continued his treatment as an outpatient. Therefore, considering all the relevant aspects I deem it appropriate to grant a further sum of Rs.13,000/- under the said head. 9. The next aspect is the compensation for loss of amenities. The amount awarded by the Tribunal under this head is Rs.10,000/- which appears to be on the lower side. It is to be noted that, the appellant had sustained very serious injuries and it resulted in physical disability to the tune of 12%. The said disability was suffered by him at a very young age of 18 years and he has to live with that disability for the remainder of his life. This will certainly affect the quality of his life and therefore, he has to be adequately compensated for the same. Thus, in the facts and circumstances of the case, I find that a further sum of Rs.15,000/is to be granted as compensation under this head. Thus, the total ``` MACA NO. 1201 OF 2013 ``` ``` 12 ``` additional compensation is determined as Rs.1,44,640/- (Rs. 1,16,640 + 13,000 + 15,000). Accordingly, the total compensation receivable by the appellant is fixed as Rs.1,89,866/- (1,44,640 + 45,226). In the result, this appeal is allowed. The award dated 14.02.2013 in O.P.(M.V.) No.302/2007 passed by the Motor Accident Claims Tribunal, Irinjalakkuda, is hereby set aside to the extent it exonerated the 3[rd] respondent Insurance Company from the liability. The 3[rd] respondent is held liable to pay the compensation at the first instance and upon depositing the awarded amount, they shall be at liberty to recover the said compensation from the respondents 1 and 2. The quantum of compensation is fixed as Rs.1,89,866/- (Rupees one lakh eighty nine thousand eight hundred and sixty six only) and the said amount shall be deposited by the 3[rd] respondent with interest at the rate as ordered by the Tribunal and with proportionate cost, within a period of three months from the date of receipt of a copy of this judgment. After making such a deposit, the 3[rd] respondent shall be at liberty to recover the said compensation from ``` MACA NO. 1201 OF 2013 ``` ``` 13 ``` respondents 1 and 2. It is further clarified that the claimant shall furnish the details of the PAN card, Aadhar Card and bank details to enable the Insurance Company to make the deposit as ordered above, within a period of two months from the date of receipt of a copy of this judgment. In case, he fails to furnish the said details, it shall be open for the insurance company to deposit the said amount before the Tribunal. **Sd/-** **`ZIYAD RAHMAN A.A. JUDGE`** scs