Babu Raj v. Jaya Mony, Satheesh and The Manager, New India Assurance Co. Ltd.

MACA.No.1120/2012 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 25[TH] DAY OF JANUARY 2024 / 5TH MAGHA, 1945_ ## _MACA NO. 1120 OF 2012_ _AGAINST THE ORDER/JUDGMENT OPMV 523/2008 OF MOTOR ACCIDENT_ _CLAIMS TRIBUNAL ,KOTTAYAM_ ## _APPELLANT/PETITIONER:_ _BABU RAJ, S/O.KUNJU KUNJU, PLAMTHOTTATHIL HOUSE, NEDUMKUNNAM P.O., KOTTAYAM-686 536._ _BY ADV.SRI.T.K.RADHAKRISHNAN_ ## _RESPONDENTS/RESPONDENTS:_ - _1 JAYA MONY, S/O.KOVIL MONY, KOVIL, MALANKARA ESTATE LINE, MALANKARA, VANDIPERIYAR, IDUKKI DISTRICT-685 603._ - _2 SATHEESH, S/O.PRABHAKARAN, MOONGAKAVUMKAL HOUSE, MADAPPALLY, CHANGANACHERRY-686 106._ - _3 THE MANAGER,_ _DIVISIONAL OFFICE, NEW INDIA ASSURANCE CO.LTD., PALACHIRA CHAMBERS, K.K.ROAD, COLLECTORATE P.O., KOTTAYAM-686 001._ _BY ADVS.SRI.PMM.NAJEEB KHAN_ _PMM.NAJEEB KHAN_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.1120/2012 2 ## **JUDGMENT** The appellant was the petitioner in O.P.(MV).No.523 of 2008 on the file of the Motor Accidents Claims Tribunal, Kottayam. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 05.09.2007. 2. According to the appellant, the accident occurred when he was walking through the side of Changanacherry-Karukachal road, he was hit by a motorcycle bearing registration No.KL-5Q2979, driven by the 1[st] respondent in a rash and negligent manner. The 2[nd] respondent was the owner and the 3[rd] respondent was the insurer of the said vehicle. The appellant was 27 years old and was working as a Computer Designer with a monthly income of Rs.10,000/-. Due to the accident, he sustained serious injuries, and the claim petition was submitted in such circumstances. 3. The 2[nd] respondent filed a written statement denying the negligence on the part of the 1[st] respondent. It was also contended that the vehicle was validly insured with the 3[rd] respondent and therefore, if at all there is any liability, they must MACA.No.1120/2012 3 indemnify it. The 3[rd] respondent filed a written statement admitting the coverage of policy for the said vehicle. However, it was contended that the 1[st] respondent did not have an effective and valid driving licence to drive the motorcycle, and the police charge-sheeted him under Section 3(1) r/w. Section 181 of the Motor Vehicles Act. Therefore, they contended that there was a violation of policy conditions, and hence, exoneration from the liability was sought. 4. The evidence in this case consists of Exts.A1 to A16 from the side of the appellant and Ext.B1 copy of the policy certificate was marked from the side of the 3[rd] respondent. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence of the 1[st] respondent. As regards the contention of violation of policy conditions, the same was found to be correct, and the 3[rd] respondent Insurance Company was exonerated from the liability. The quantum of compensation was fixed as Rs.1,18,900/- and the said amount was directed to be recovered from respondents 1 and 2 with interest at the rate of 7.5% per annum from the date of petition till realization with a cost of Rs.2,350/-. This appeal is submitted by the appellant in MACA.No.1120/2012 4 such circumstances, challenging the exoneration of the Insurance Company and also seeking enhancement of compensation. 5. Heard Sri.T.K.Radhakrishnan, learned counsel for the appellant and Sri.PMM Najeeb Khan, learned counsel for the 3[rd] respondent Insurance Company. 6. The first question to be considered is whether the exoneration of the Insurance Company from the liability was proper or not. Evidently, the Tribunal found that the 1[st] respondent was driving the vehicle without any valid driving licence and therefore, there was a violation of policy conditions. The Tribunal, by placing reliance upon the decision rendered by the High Court of Madras in **Divisional Manager, New India Assurance Company Limited v. V.Chandran and Another (2011 ACJ 981),** held that, **National Insurance Company v. Swaran Singh & Others [2004 ACJ 1 (SC)]** cannot be treated as precedent and it is the discretion of court depending upon the facts and circumstances of the case to apply the doctrine of ‘pay and recover’. It was also found that as there was an apparent violation of insurance contract by owner in authorizing a person without licence to drive his vehicle, compensation should be paid only by him and not by the Insurance Company. MACA.No.1120/2012 5 7. However, when considering the principles laid down by the Honourable Supreme Court in **Swaran Singh’s case (supra)** and a series of judgments rendered by the Honourable Supreme Court following the said decision, the said conclusion of the Tribunal is not at all acceptable. The position of law in this regard is well settled and it is to the effect that in a case where the allegation relates to the violation of policy conditions, the way open to the Tribunal is to direct the insurer to deposit the amount with the right to recover the said compensation from the registered owner after such deposit. This is particularly because, as far as the issue relating to the violation of policy conditions is concerned, the same is a dispute between the insurer and the insured. The claimant, who is a third party to the said contract, has nothing to do with the said dispute, and the endeavour of the Tribunal should be to ensure the speedy recovery of the compensation and the receipt of the said amount by the victim as expeditiously as possible. While doing the said exercise, the fact that the violation of the terms and conditions of the contract entered between the insured and the insurer cannot stand in the way of the claimant in getting compensation. In such circumstances, I do not find any justification on the part of the MACA.No.1120/2012 6 Tribunal for not directing the Insurance Company to pay the compensation at the first instance. Therefore, the award passed by the Tribunal to that extent is set aside by holding that the initial liability to pay the compensation to the appellant is on the 3rd respondent, with the right to get the said amount recovered from the 2[nd] respondent. 8. The next aspect to be considered relates to the quantum of compensation. This is a case in which the appellant sustained injuries in an accident that occurred on 05.09.2007. Even though the appellant produced Ext.A9 disability certificate, wherein the disability was certified as 10%, it is discernible from the said certificate that it was not permanent disability. Therefore, I do not find any materials to hold that he sustained any permanent partial disablement, which makes him entitled to compensation in this regard. 9. However, when considering the other heads, particularly the amount awarded towards loss of earnings, the compensation appears to be on the lower side, mainly because of the fact that the a lesser monthly income was taken by the Tribunal. It is to be noted in this regard that, even though Rs.10,000/- was claimed as the monthly income, which he claimed MACA.No.1120/2012 7 to have been getting from his avocation as a Computer Designer, the Tribunal took only Rs.4,000/-. Of course, it is true that no evidence was adduced to show the exact income of the appellant. Ext.A10 certificate would indicate his qualification as a Computer Designer. In this case, the accident occurred in the year 2007 and when the method of computation of monthly income evolved from the principles laid down by the Honourable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance co. Ltd .[2011 (13) SCC 236]** and **Syed Sadiq v. Divisional Manager, United India Insurance Co.[2014 (2) SCC 735]** is adopted, and the monthly income of an ordinary worker, even without any skills, could be taken as Rs.4,500/- in the year 2004. The usual method that is adopted for determining the monthly income for the subsequent years, is to add Rs.500/per year. When that method is adopted, the monthly income would be Rs.6,000/-for the year 2007, in respect of an ordinary worker without any qualification. Here, in this case, some evidence is there to show his qualification as a computer designer and therefore, a slightly higher income can be taken. Thus, in the facts and circumstances of the case, I deem it appropriate to fix the monthly income as Rs.7,000/-. The Tribunal has already MACA.No.1120/2012 8 awarded compensation for loss of earnings for a period of seven months. In such circumstances, the appellant would be entitled for a further sum of Rs.21,000/- under this head [(7000x7)28000]. The amount awarded towards pain and suffering was Rs.25,000/-, which appears to be on the lower side. This is particularly because, it is discernible from the records that he sustained injuries such as type II open fracture left tibia and he was treated as in-patient from 08.09.2007 to 19.10.2007, i.e., for a period of 42 days. Besides the said injury, he had suffered lacerated wound on the forehead and left leg etc. In Ext.A9 disability certificate his disability was assessed as 10% even though the same was temporary in nature. It is to be noted that Ext.A9 was issued on 18.06.2011 whereas the accident occurred on 05.09.2007. This would indicate that he had certain difficulties initially in connection with the injuries for a longer period. In such circumstances, a further sum of Rs.10,000/- is awarded under the head of pain and suffering. The amount under other heads appears to be reasonable and no interference is warranted. Thus, the total additional compensation would be Rs.31,000/- [21000+10000] and the total compensation accordingly re-assessed as Rs.1,49,900/- (31000+18900). MACA.No.1120/2012 9 In the result, this appeal is allowed with the following orders: (1) The finding of the Tribunal exonerating the 3[rd] respondent Insurance Company from the liability is set aside. The 3[rd] respondent is held liable to pay the compensation at the first instance, with a right to recover the said compensation from the 2[nd] respondent, the registered owner of the vehicle. (2) The quantum of compensation is re-assessed as Rs.1,49,900/- (Rupees one lakh forty nine thousand and nine hundred only) and the 3[rd] respondent shall deposit the said amount along with interest at the rate of 7.5% per annum from the date of petition till realization with proportionate cost. It is further ordered that the claimants shall furnish details of the PAN card, AADHAR Card and Bank details to enable the appellants 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, they fail to furnish the said details, it shall be open for the Insurance Company to deposit the said amount before the Tribunal. (3) After satisfaction of the award, it shall be open for the 3[rd] respondent to recover the said compensation along with the interest, from the 2[nd] respondent by executing the award. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/2.2.24