Balachandran v. Palakkad District Autorickshaw Drivers Co-Operative Society Limited and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 30[TH] DAY OF SEPTEMBER 2022 / 8TH ASWINA, 1944** ## **MACA NO. 2337 OF 2009** **AGAINST THE ORDER/JUDGMENTOPMV 1164/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,** ## **PALAKKAD** ## **APPELLANT/PETITIONER:** **BALACHANDRAN, S/O. KUNCHU VEMBRANCODE HOUSE, KOOTALA, KUNISSERY, ALATHUR AMSOM, PALAKKAD DISTRICT. BY ADVS. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.A.S.SABU** ## **RESPONDENTS/RESPONDENTS:** **1 THE PRESIDENT PALAKKAD DISTRICT AUTORICKSHAW DRIVERS CO-OPERATIVE SOCIETY LIMITED NO.P.606,, G.B.ROAD, PALAKKAD. 2 SUNDARAN.E, S/O.EACHARAN SWATHIKA NIVAS, KERALA PARAMBU, ALATHUR, PALAKKAD DISTRICT. 3 THE NEW INDIA ASSURANCE COMPANY LIMITED IIND FLOOR, J.R.J.COMPLEX, MAIN ROAD, OTTAPALAM. BY ADVS. K.ANAND M.N.UMARANI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **30.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.2337/2009 **2** ## **JUDGMENT** This appeal has been filed against the Award passed in O.P. (M.V.)No.1164/2002 on the file of Motor Accident Claims Tribunal, Palakkad, which arose out of a claim petition filed under Section 166 of the Motor Vehicle Act, 1988 (in short, the Act) due to the injuries sustained by the appellant in a motor accident occurred on 22.05.2000 (mistakenly stated as 25.02.2000 in the Award) at about 5.30 p.m while travelling in a goods autorickshaw bearing Reg.No.KL-9F 9784 at Nallucent, Vanur. He had undergone treatment till 02.06.2000 at Crescent Hospital, Alathur. 2. It is alleged that the accident happened due to the rash and negligent driving of the autorickshaw by the 2[nd] respondent, driver. The first respondent is the owner of the autorickshaw and third respondent is the insurer. A total compensation of Rs.2,00,000/- has been claimed. 3. Before the Tribunal respondents 1 and 2 M.A.C.A.No.2337/2009 **3** remained ex parte. Third respondent - insurer, filed written statement admitting the policy coverage with respect to the offending vehicle. But the claimant was put to strict proof regarding his age, income and occupation. It is also contended that the compensation claimed is highly excessive. It is also contended that the claimant has to prove that he was accompanying the goods in the autorickshaw. 4. Exts.A1 to A7 marked from the side of the claimant and Ext.B1 marked from the side of the third respondent. Thereafter on evaluating the pleadings, documents and facts and circumstances, the Tribunal found the second respondent responsible for the accident. It is also found that the third respondent is not liable to make good the loss sustained since the appellant was a gratuitous passenger in a goods autorickshaw and the policy would not reveal that the risk of gratuitous passengers is also covered by the terms of contract. So a total compensation of Rs.38,170/- was awarded and respondents 1 and 2 were held jointly and severally liable to pay the amount. 5. Aggrieved by the Award passed by the Tribunal, appellant approaches this Court in appeal. M.A.C.A.No.2337/2009 **4** 6. All the respondents appeared through counsel. Heard both sides. 7. According to the learned counsel for the appellant, the appellant was hospitalized from 25.02.2000 till 02.06.2000. But the Tribunal taken the period of inpatient treatment as 11 days only. It is also contended that the appellant sustained serious injuries and only a meagre compensation was awarded by the Tribunal. Hence he claims for enhancement of compensation on all heads. It is also contended that the third respondent- insurer is liable to make good the loss sustained to respondents 1 and 2 as per the contract of insurance since the policy issued is a comprehensive policy. 8. Learned counsel for the third respondent on the other hand would contend that the appellant was a gratuitous passenger and Ext.B1 policy would reveal that the seating capacity is 'zero' and no passengers are permitted and hence the appellant was travelling in the goods autorickshaw and his risk is not covered by the policy and hence the Tribunal rightly exonerated the liability of the insurer and no interference is called for in that regard. It is also contended by the learned counsel for the respondents 1 to 3 that a just and reasonable M.A.C.A.No.2337/2009 **5** compensation has already been awarded and no enhancement is required under any of the heads. 9. The accident, injury sustained as well as the negligence on the part of the second respondent are not disputed. The challenge is with regard to the quantum of compensation as well as the liability of the third respondent. So the correctness of the quantum of compensation awarded can be dealt with first. 10. Though the learned counsel for the appellant would contend that the accident was on 25.02.2000 and the appellant had been at hospital till 02.06.2000 the copy of the FIR -Ext.A1 produced from the side of the appellant itself would show that the date of accident was on 22.05.2000 and the crime was registered on 23.05.2000. Ext.A6 - copy of the discharge summary issued from Crescent hospital, where the appellant had undergone treatment immediately after the accident, would also show that he was admitted on 22.05.2000 and discharged on 02.06.2000. So, as rightly found by the Tribunal, the inpatient treatment is only for 11 days. 11. The appellant is claimed to be a driver, aged 21 years, at the time of accident. However the driving licence or any other M.A.C.A.No.2337/2009 **6** document has not been produced to prove his avocation and no oral evidence also has been adduced to prove the avocation and the actual income. The income taken by the tribunal notionally as Rs.2,000/- per month. As per Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] the Apex Court taken the monthly income of a coolie in an accident occurred in the year 2004 as Rs.4,500/-. Applying that ratio Rs.2,500/- can be taken as monthly income notionally in the accident occurred in the year 2000. 12. The injuries noted is type I compound fracture tibia left and X ray showed compound fracture of tibia left and treatment given is closed nailing and K - nail. 13. In view of the nature of the injuries sustained by him and the period of treatment undergone by him the loss of income taken for three months by the tribunal is seems to be just and proper. Hence, towards loss of earning, appellant is entitled to get Rs.7,500/- [2,500x3]. Deducting the amount already awarded, the balance amount under that head would be Rs.1,500/- [7,500-6,000]. The amount of Rs.1,000/- awarded towards transportation charges, taking into account the fact that the accident was in the year 2000, is seems to be proper. Further M.A.C.A.No.2337/2009 **7** an amount of Rs.1,000/- granted towards extra nourishment is also seems to be quite reasonable. Towards treatment expenses, Rs.11,020/- is awarded as per the medical bills produced. Further, towards pain and suffering, an amount of Rs.14,000/has been awarded. Taking into account the fact that he had sustained comminuted fracture of left tibia and had undergone procedures like closed nailing, k-nail and POP cast (PTB) on 01.06.2000 etc., towards pain and suffering an amount of Rs.5,000/- is further awarded. No disability certificate has been produced and claimant also has no case of sustaining any permanent disability. So the amount of Rs.3,000/- towards loss of amenities and enjoyment is also seems to be quite reasonable. So on an overall evaluation of the facts and circumstances appellant is entitle to get enhanced compensation of Rs.6,500/[5,000+1,500]. 14. Next is with regard to the question of liability. According to the appellant he was the owner of the goods travelling with the goods autorickshaw and hence is covered by the policy and hence the third respondent is liable to indemnify the first respondent. 15. But the learned counsel for the third respondent bring M.A.C.A.No.2337/2009 **8** to my attention Ext.B1 copy of the policy and in that policy it has been specifically provided that the limit of the amount of the company's liability under Section II (1) (i) in respect of any one accident is as per the M.V. Act 1988 and the limit of amount of the company's liability under Section II (1) (ii) in respect of any one claim or series of claims arising out of one event is specified as Rs.6,000/-. The seating capacity is shown as '0'. So that would clearly prove that Ext.B1 is only an Act policy and the seating capacity is also shown as zero which would also indicate that apart from the driver nobody else is covered by the policy. So also though the appellant had put forward a contention that he was the owner of the goods no evidence has been tendered by him to substantiate the contention. 16. Section 147 of the Motor Vehicle's Act is relevant in this context to be quoted, which reads thus: - “147. Requirements of policies and limits of liability. — (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which— - (a) is issued by a person who is an authorised insurer; and - (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)— - (i) against any liability which may be M.A.C.A.No.2337/2009 **9** incurred by him in respect of the death of or bodily [injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; - (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place: Provided that a policy shall not be required— - (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee— - (a) engaged in driving the vehicle, or - (b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or - (c) if it is a goods carriage, being carried in the vehicle, or - (ii) to cover any contractual liability. Explanation. —For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that M.A.C.A.No.2337/2009 **10** the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.” 17. In National Insurance Co. Ltd v. Baljit Kaur [2004 (1) KLT 938 (SC)] a three Judges Bench of the Apex Court dealt with the question as to whether an insurance policy in respect of a goods vehicle would also cover gratuitous passenger in view of the legislative amendment in 1994 to Section 147 of the M.V. Act. It has been held that as per 1994 Amendment what was added is 'including the owner of the goods or his authorized representative carried in the vehicle' besides third parties. Hence it was held that the intention of the Parliament could not have been that the words 'any person' occurring in Section 147 would cover all persons who were travelling in a goods carriage in any capacity whatsoever. It is further held that if such was the intention there was no necessity of the Parliament to carry out an amendment inasmuch as expression 'any person' contained in sub clause (i) of clause (b) of sub-section (1) of Section 147 would have included the owner of the goods or his authorized representative besides the passengers who are gratuitous or otherwise. In spite of the amendment of 1994, the effect of provision contained in Section 147 with respect to person other M.A.C.A.No.2337/2009 **11** than the owner of the goods or his authorized representative remains the same, although the owner of the goods or his authorized representative would be covered by the policy of insurance in respect of a goods vehicle after the Amendment. 18. In this context learned counsel for the insurer also bring to my attention B ajaj Allianz General Insurance Co. Ltd v. Bheema and Ors [MANU/KE/2626/2021 : 2021 (6) KLT 462] , wherein the insurance company disputed the liability of a gratuitous passenger in a goods vehicle. In that decision learned Single Judge of this Court found that if the claimant is not travelling in the vehicle as the owner of the goods he shall not be covered by the policy of insurance. Further in a three wheeler goods carriage a driver could not have allowed anybody else to share his seat and no other person whether a passenger or as an owner of the vehicle is supposed to share the seat of the driver and any such action is in violation of the policy conditions. 19. In a common judgment in MACA Nos.1373/2015, 662, and 1678/2016 dated 15.12.2016 a learned Single Judge of this Court dealt with the question with regard to the liability of the insurer in the case of a goods autorickshaw with respect to a passenger who sustained injuries out of an accident while M.A.C.A.No.2337/2009 **12** travelling as a passenger. The policy details reveal that the goods autorickshaw was designed to carry only one person in the cabin. The contention of the learned counsel for the claimant was that another insurance company issued a policy in respect of goods autorickshaw covering the risk of two persons is of no consequence for deciding that particular case because Ext.B1 policy in that case does not show that insurer collected any additional premium for a passenger in the cabin. It is also held that the contract entered into with another insurance company cannot be looked into to resolve the liability of insurer under Ext.B1. It was also held that the appellant should not have permitted the claimant to travel in the goods autorickshaw sharing his seat even if he is the owner of the goods carried in the vehicle. It amounts to violation of permit conditions as well as the violation of policy conditions. 20. In the present case, even though the appellant put forwarded a case that he was the owner of the goods, no evidence was adduced by him to prove that fact. Moreover, the policy of insurance specifically provides the seating capacity as zero. So, apart from the driver, nobody is covered by the policy and it is only an Act policy. So, at any rate, the appellant who had M.A.C.A.No.2337/2009 **13** been travelling in a goods autorickshaw is not covered by Ext.B1 policy issued by the third respondent. So the finding of the Tribunal exonerating the third respondent is seems to be legal and proper and no interference is called for in that regard. 21. In the result, appellant/claimant is allowed to realise enhanced compensation of Rs.6,500/ - (Rupees six thousand five hundred only), which will carry interest at the rate of 6.5% per annum (excluding 260 days delay caused in filing the appeal) from the date of petition till realisation. First and second respondents are jointly and severally held liable to pay the amount. 22. Appellant/claimant shall provide his Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, within one month from the date of receipt of certified copy of this judgment. Parties shall bear their respective costs. Sd/- **M.R.ANITHA** SHG **JUDGE**