Binoy John v. Sunny Alexander, Joseph M. Paily, United India Insurance Co. Ltd., P.V. Varghese

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 9TH AUGUST 2011 / 18TH SRAVANA 1933 MACA.No. 1662 of 2004() ----------------------OPMV.500/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... ## APPELLANT/PETITIONER ----------------------- BINOY JOHN, AGED 26 YEARS, EDAMANAKUNNEL HOUSE, THUNDANGANADU, MUTTOM VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.GEORGEKUTTY MATHEW RESPONDENTS: --------------- 1. SUNNY ALEXANDER, KALLUPURACKAL HOUSE, KOLLAPPILLY KARA, KADANADU VILLAGE, MEENACHIL TALUK. 2. JOSEPH M.PAILY, MATTATHIL HOUSE, KOCHUKARUMTHARUVIL KARA, VAGAMON VILLAGE, PEERUMEDE TALUK. 3. UNITED INDIA INSURANCE CO.LTD., KOTTAYAM-1. 4. P.V.VARGHESE, VELLAPPILLIL HOUSE, VADAVATHOOR, KOTTAYAM DISTRICT. ADV. SRI.MATHEW SEBASTIAN FOR R4 SMT.P.A.REZIYA FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A.No.1662 of 2004 ---------------------------------------Dated this the 9[th] day of August 2011 ## **J U D G M E N T** ## **R.BASANT,J** Claimant is the appellant. His claim for compensation for personal injuries suffered in a motor accident which took place on 12/2/2000 was allowed in part by the tribunal. An amount of Rs.68,510/- was awarded as compensation. Insurer, that is the 3[rd] respondent herein was exonerated from liability. The driver and owner of the vehicle were directed to pay the compensation amount. 2. The appellant/claimant claims to be aggrieved by the impugned award. What is his grievance? First of all, it is contended that the exoneration of the insurance company/3[rd] respondent is unjustified. It is next contended that the quantum of compensation awarded is not just and reasonable. 3. We have heard the learned counsel for the appellant/ claimant and the 3[rd] respondent/insurer. According to the learned counsel for the appellant/claimant, the appellant was engaged as a worker. He was seated inside the cabin of the 2 M.A.C.A.No.1662 of 2010 lorry. He was travelling in the said vehicle accompanying the goods for the purpose of unloading the goods (granite stones) as required (by the owner of the load). In short, to put it in a legal jargon, the contention of the learned counsel for the appellant is that the appellant was travelling in the lorry accompanying the goods as a representative of the owner of the goods to unload the goods at the destination. 4. Respondents 1 and 2, the driver and owner remained ex parte. The 3[rd] respondent insurer filed a counter statement. In the counter statement, it was contended that “the petitioner was not entitled to travel mounting on the loaded lorry which was clear violation of the policy and permit conditions”. Parties went to trial on these contentions. The appellant examined himself as PW1. Exts.A1 to A9 were marked. On the side of the insurer, Ext.B1 copy of the insurance policy was produced and marked. No other evidence was adduced. As PW1, the claimant/appellant deposed that he was travelling at the relevant time after loading the lorry with granite/rubbles to unload the same for one Chandy, the owner of the goods. He has specifically asserted that he was seated inside the cabin. M.A.C.A.No.1662 of 2010 3 Significantly, he was not cross-examined by any of the respondents. 5. The learned Tribunal considered the liability of the insurance company under issue No.2 in paragraph 7. We extract the said paragraph below: “I have already taken the view that the accident had happened due to rash and negligent driving of the lorry by the first respondent. Third respondent has admitted the insurance of the vehicle. It has also produced a copy of the policy which is marked in the case as Ext.B1. It is apparent from the document Ext.B1 that the vehicle has got insurance at the time of accident. The petitioner who was examined in this case as PW1 has deposed that he was travelling in the lorry sitting in the cabin of the same. Anyhow he has no case that he is the owner or the authorised representative of the owner. If so, the third respondent is not liable to pay compensation to the petitioner. The law is well settled on that score (see 2004(1) KLT 938 (SC) - National Insurance Co. Ltd vs. Baljit Kaur). Respondent No.2 is liable to pay compensation to the petitioner. This issue is answered accordingly.” 4 M.A.C.A.No.1662 of 2010 6. The learned counsel for the appellant contends that the tribunal has totally disregarded the pleadings of the appellant as also the unchallenged evidence tendered by him as PW1. Of course, the appellant has not extracted and imported the words of Section 147 of the Motor Vehicles Act and had not stated that he was “either the owner or the representative of the owner accompanying the goods”. The tribunal ought to have taken note of the pleadings and evidence and must have come to the conclusion that in substance and in its core the appellant had raised the contention that he was accompanying the goods to unload the same at the venue of the owner of the goods. This is sufficient to attract the insurer's liability under Section 147 of the Motor Vehicles Act, contends the counsel. We have perused Ext.A4 copy of the scene mahazer and that definitely affords an indication in support of the case of the appellant that the vehicle at the relevant time was loaded with granite stones. Even the specific plea of the insurer suggests that there was load carried in the goods vehicle at the time of the accident. That the vehicle was carrying load is thus indicated convincingly by observations in Ext.A4 scene mahazer as also the plea of the Insurance 5 M.A.C.A.No.1662 of 2010 Company. We further have the oral evidence of PW1. Nay, we note immediately that the evidence of the appellant as PW1 remains unchallenged and his evidence clearly shows that the lorry was loaded and that he was travelling in the cabin to unload the goods at the premises of Chandy, the owner of the load. Even in evidence, we note that he did not specifically assert that he was “the representative of the owner accompanying the goods” but he had in unmistakable terms stated that he was accompanying the load to unload the same at the premises of the owner of the load. It is crucially important that PW1 was not cross-examined by anyone. 7. We must take note that we are dealing with a claim for compensation of a person injured in the accident. The sufferer is the claimant. Technical laws of pleadings cannot be blindly and rigidly imported in proceedings before a tribunal. The case of the appellant in its core is clearly stated in paragraph 28 of the claim petition filed by the appellant/claimant. His evidence as PW1, which we note again, remains unchallenged, reveals that he was accompanying the goods by travelling in the cabin to unload the same at the 6 M.A.C.A.No.1662 of 2010 premises of the owner of the load - Chandy by name. No contra evidence was adduced by anyone. 8. Of course, the learned counsel for the insurance company points out and we note that in Ext.A1 F.I.S lodged by another person there is a statement that the appellant/claimant was travelling not inside the cabin; but on the load. According to the one who lodged that F.I.S, some persons were inside the cabin and some were on the load. The appellant's name appears as one of those who was travelling not in the cabin; but on the load. 9. The appellant/claimant did not evidently accept that statement in Ext.A1. According to him, he was inside the cabin. He had stated so specifically in his claim petition in paragraph 28. Considering the objections filed by the insurance company, the appellant examined himself to assert that he was travelling inside the cabin. That assertion is not challenged. The unchallenged version of the victim on oath is entitled to respect. The mere fact that some other person in Ext.A1 had given a contra version, cannot obviously bind the appellant who had made specific assertions in his claim petition as also in evidence. 7 M.A.C.A.No.1662 of 2010 May be the informant in Ext.A1 in his then state of mind was making an honest mistake, submits the learned counsel for the appellant. In the total absence of challenge against the oral evidence of the appellant which is in tune with the specific statements in paragraph 28 of the claim petition, we find no reason not to accept and act upon the oral evidence of PW1 about his position in the vehicle at the time of the accident. On the evidence tendered before the court, we agree that it is safer to accept the oral evidence of the appellant as PW1 that he was travelling inside the cabin and the mission was to unload the load of granite stones in the premises of the owner. 10. The learned counsel for the insurance company relies on the statement in Ext.A1 that they were going to have lunch. It was about 2 p.m and the fact that one of those persons stated that they were proceeding for lunch does not militate against the unchallenged version of the appellant/PW1 that it was a loaded vehicle and he was proceeding to unload the vehicle. If on the way they intended to have lunch, that does not militate against the assertions made by PW1 on oath which remain unchallenged. 8 M.A.C.A.No.1662 of 2010 11. We are conscious of the fact that the appellant, a loading and unloading worker, in his claim petition had not specifically stated that he was a representative of the owner of the goods; but he had clearly stated in the petition that he was a worker accompanying the load to unload the same as required (by the owner of the load). We are, in these circumstances, satisfied that the view in favour of the victim of the accident/appellant/claimant can safely be taken in the totality of the circumstances available in this case. 12. Reliance is placed on the decision in **National Insurance Company Ltd. vs. Cholleti Bharatamma** [(2008) 1 SCC 423] to contend that only the one travelling in the cabin can be reckoned as the representative of the owner of the goods. That would be too wide and general an understanding of the decision in **National Insurance Company Ltd.** (Supra). It is true that in that case, the Supreme Court took note of the fact that the victim was travelling not in the cabin but as a paid person on the top of the vehicle. Even that is irrelevant for our purpose as the evidence of PW1 that he was travelling in the cabin, true to his assertions in paragraph 28, remains unchallenged. 9 M.A.C.A.No.1662 of 2010 13. Our attention has been drawn to the decision in **New India Assurance Co. Ltd. v. Alekutty Antony** [2009(4) KLT 130]. In that decision, the court had, on facts come to the conclusion that the headload worker travelling in the goods vehicle outside the cabin cannot be treated as the owner/his representative accompanying the goods. According to us, those two decisions cannot afford any convincing assistance in the facts and circumstances of this case. 14. To sum up, relying on the evidence of PW1 which is in tandem with the pleadings in paragraph 28 of the claim petition, and all other probative inputs available, we accept that the claimant/appellant was a worker accompanying the load carried in the vehicle to unload the same in the premises of the owner of the vehicle. He was travelling in the cabin of the vehicle, going by his unchallenged evidence. That evidence is not in tandem with the statement in Ext.A1 by a person who has not been examined in court. We do not reckon that circumstance as sufficient to destroy the unchallenged version of the appellant as PW1. 10 M.A.C.A.No.1662 of 2010 15. We, therefore, take the view that the appellant is covered under the statutory terms of the policy of insurance under Section 147 of the M.V.Act as a worker accompanying the goods carried in the vehicle to unload the same at the premises of the owner - evidently as his representative. The challenge on the first ground therefore succeeds. 16. Coming to the challenge against the compensation awarded, we note that only an amount of Rs.68,510/- has been awarded by the tribunal against a total claim limited to Rs.4,00,000/-. The relevant details of the amounts awarded are given below: |1.|Loss of earnings|Rs.6,000/-| |---|---|---| |2.|Transportation expenses|Rs.1,000/-| |3.|Extra nourishment|Rs.500/-| |4.|Damage to clothing and articles|Rs.250/-| |5.|Bystander expenses|Rs.1,000/-| |6.|Medical bills<br>|Rs.34,266/-| |7.|Pain and suffering<br>|Rs.20,000/-| |8.|Disfiguration<br>|Rs.5,000/-| |||------------------| ||Total<br>|**Rs.68,016/-**| |||**=======**| 11 M.A.C.A.No.1662 of 2010 The said amount has been directed to be paid along with interest at the rate of 6% per annum from the date of the petition to the date of payment/realisation. 17. The learned counsel for the appellant first of all contends that the claimant/insured was a young man aged 26 years at the time of the accident. He was an unmarried person. There are definite indications to suggest that he had lost atleast five teeth. For this disability suffered, no compensation has been awarded under the head of loss of amenities and comfort. A total amount of Rs.5,000/- alone has been awarded under the head of disfiguration. This is grossly inadequate, contends counsel. 18. We find merit in this contention Considering the loss of five teeth and also taking into account the position of the claimant as an unmarried young man aged 26 years, we are satisfied that the amount of compensation awarded under the composite head of loss of amenities and disfiguration deserves to be enhanced. Though other contentions are raised about the inadequacy of the amounts awarded, we are satisfied that the amounts awarded are fair, just and reasonable taking into account the nature of the injury suffered by the appellant as also 12 M.A.C.A.No.1662 of 2010 his treatment as in-patient for a period of 18 days in the hospital. 19. The interest awarded is grossly inadequate, contends the counsel. We agree. We are satisfied that interest must have been awarded at the rate of 7.5% per annum from the date of the petition to the date of payment. 20. The above discussions lead us to the conclusion that the appellant is entitled for a further amount of Rs.20,000/(Rs.25,000/- minus Rs.5,000/-) as compensation under the composite head of loss of amenities and disfiguration in addition to the amounts already awarded by the tribunal. 21. In the result, a) This appeal is allowed in part. b) Appellants are found entitled to a further amount of Rs.20,000/- (Rupees twenty thousand only) in addition to the amount already awarded by the Tribunal. c) We direct that interest shall be payable at the rate of 7.5% per annum on the entire amount of compensation from the date of the petition to the date of deposit/realisation. d) We hold that the third respondent insurance company is liable to satisfy the direction to pay compensation. M.A.C.A.No.1662 of 2010 13 e) All other directions of the Tribunal are upheld. **(R.BASANT, JUDGE)** **(M.C.HARI RANI, JUDGE)** jsr // True Copy// PA to Judge M.A.C.A.No.1662 of 2010 14 15 M.A.C.A.No.1662 of 2010 **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010