Eapen Scaria v. Jacob Thomas, Anniamma Jacob and National Insurance Company Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** # **FRIDAY, THE 20TH DAY OF DECEMBER 2019 / 29TH AGRAHAYANA, 1941** ## **MACA.No.948 OF 2010** **OPMV 1342/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ALAPPUZHA** ## **APPELLANT/PETITIONER** **EAPEN SCARIA S/O.SCARIA, MADUKKASSERRIL VEEDU, WARD NO.8, MUTTAR GRAMA PANCHAYAT, DO. VILLAGE, ALAPPUZHA.** ## **BY ADV. SRI.R.AZAD BABU** ## **RESPONDENTS/RESPONDENTS** |**1**|**JACOB THOMAS**| |---|---| ||**SRAMBICKAL PATHIL, MUTTAR P.O.,, ALAPPUZHA.**| |**2**|**ANNIAMMA JACOB**| ||**SRAMBICKAL PATHIL, MUTTAR P.O.,, ALAPPUZHA.**| |**3**|**NATIONAL INSURANCE COMPANY LTD.**| ||**REPRESENTED BY ITS MANAGER,, ALAPPUZHA.**| ||**R1 BY ADV. SMT.SARAH SALVY**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.948 of 2010 2 ## **JUDGMENT** The appellant is the claimant in OP(MV) No.1342 of 2004 on the file of the Motor Accidents Claims Tribunal, Alappuzha, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by him in a motor accident, which occurred on 21.07.2003, while he was travelling in a goods autorickshaw bearing registration No.KL-4/K-5318, driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. At the place of accident, the autorickshaw overturned and the appellant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of autorickshaw by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,50,000/- under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex parte. The 3[rd] respondent insurer filed written statement contending that the said respondent is not the insurer of the autorickshaw, at the material time. Later the insurer filed written statement admitting insurance coverage of the said vehicle. The insurer contended that, since the appellant was a gratuitous passenger travelling in a goods MACA.No.948 of 2010 3 ## autorickshaw, it cannot be saddled with any liability. 3. Before the Tribunal, Exts.A1 to A9 were marked on the side of the appellant/claimant and Ext.B1 insurance policy was marked on the side of the respondents. 4. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the autorickshaw by the 1[st] respondent driver. There is no evidence to show that, at the time of accident, goods belonging to the appellant were carried in the autorickshaw. The appellant was travelling in the autorickshaw by sitting on the side of the 1[st] respondent driver. Therefore, the Tribunal exonerated the 3[rd] respondent insurer from the liability. The Tribunal held that respondents 1 and 2, the driver and owner of the vehicle are jointly and severally liable to pay the amount of compensation to the appellant. Under various heads, the Tribunal awarded a total compensation of Rs.1,42,000/-, together with interest at the rate of 7.5% per annum, from the date of petition, i.e., 20.10.2004 till realisation, with a cost of Rs.1,500/-, and respondents 1 and 2 are directed to satisfy the award within 30 days. 5. Dissatisfied with the quantum of compensation MACA.No.948 of 2010 4 awarded by the Tribunal and also challenging the exoneration of the 3[rd] respondent insurer from the liability to pay the amount of compensation, the appellant is before this Court in this appeal. 6. Heard the learned counsel for the appellant and also the learned Standing Counsel for the 3[rd] respondent insurer. Despite service of notice, none appears for respondents 1 and 2. 7. The issue that arises for consideration in this appeal is as to whether any interference is warranted on the award passed by the Tribunal to the extent of exonerating the 3[rd] respondent insurer from the liability and whether the appellant is entitiled for enhancement of the total compensation awarded by the Tribunal. 8. The vehicle involved in the accident is a goods autorickshaw covered by Ext.B1 insurance policy. The document marked as Ext.A1 is a copy of the FIR in the crime registered in connection with the motor accident, which occurred on 21.07.2003, involving the said goods autorickshaw driven by the 1[st] respondent. Ext.A4 is a copy of the First Information Statement and Ext.A6 is a copy of the charge sheet. Before the Tribunal both sides have not chosen to adduce any oral MACA.No.948 of 2010 5 evidence. In the impugned award, the Tribunal found that the accident occurred due to the rash and negligent driving of autorickshaw by the 1[st] respondent, driver. 9. In **New India Assurance Company Ltd. v. Jameela and others [2011 (2) KHC 320]** the question before the Division Bench of this Court was as to whether the owner of goods is covered by the insurance policy taken under subclause (i) of clause (b) of sub-section (1) Section 147 of the Motor Vehicles Act, 1988 even while returning after unloading the goods. The Division Bench held that a person continues to be owner of the goods or representative of the owner of the goods even while returning after unloading the goods. 10. In view of the law laid down in **Jameela's** case (supra), if the appellant was travelling in the goods autorikshaw in question as the owner of the goods, he shall be covered by the policy of insurance. He continues to be the owner of the goods even while returning in that autorikshaw after unloading the goods. ## 11. In **United India Insurance Company Limited v.** ## **Suresh K.K. and another [(2008) 12 SCC 657]** the Apex Court held that if the claimant had not been travelling in the vehicle as owner of the goods, he shall not be covered by the MACA.No.948 of 2010 6 policy of the insurance. In any view of the matter, in a threewheeler goods carriage, the driver could not have allowed anybody else to share his seat. No other person whether as a passenger or as a owner of the vehicle is supposed to share the seat of the driver and it would amount to violation of the conditions of the contract of insurance. 12. Relying on the decision of the Apex Court in **Suresh's case (supra)** , the Division Bench of this Court in **New India Assurance Company Ltd. v. Abdul Reheman @ Anthru and others [2012 (3) KHC 478]** , held that if any other person, whether as a passenger or as the owner of the goods shares the seat of the driver, he is an unauthorised passenger and it amounts to violation of the conditions of contract of insurance and therefore, no compensation is payable. 13. In the instant case, it is not in dispute that the seating capacity of the goods autorikshaw in question is only one, intended for driver. Therefore in view of the law laid down in the decisions referred to supra conclusion is irresistible that the appellant, who was travelling in that vehicle sharing the seat of the driver, can only be treated as an unauthorised passenger. In such circumstances, the 3[rd] respondent insurer MACA.No.948 of 2010 7 cannot be saddled with the liability to pay the amount of compensation to the appellant. 14. Relying on the directions contained in paragraph 12 of the judgment of the Apex Court in **Suresh's case (supra)** , the learned counsel for the appellant would contend that even if it is found that the appellant is an unauthorised passenger in the goods autorikshaw, the 3[rd] respondent insurer can be directed to pay the amount of compensation and get it recovered by proceeding against the owner of that vehicle. Paragraph 12 of the judgment of the Apex Court in **Suresh's case (supra)** reads thus : “Keeping in view the aforementioned facts and circumstances into consideration, we are of the opinion that with a view to do complete justice between the parties, a direction should be given to the appellant to pay the amount to the claimant and realise the same from the owner of the vehicle. Such a direction would, in our opinion, serve the ends of justice.” (underline supplied) 16. A reading of paragraph 12 of the judgment of the Apex Court would make it explicitly clear that such a direction has been issued by the Apex Court by invoking its powers MACA.No.948 of 2010 8 under Article 142 of the Constitution of India to do proper justice. As held by the Apex Court in **State of Punjab v. Rafiq Masih [(2014) 8 SCC 883]** the directions issued under Article 142 of the Constitution of India do not constitute a binding precedent. In such circumstances, the finding of the Tribunal absolving the 3[rd] respondent insurer from the liability to pay the amount of compensation to the appellant warrants no interference. 17. Now what remains to be considered in this appeal is as to whether the appellant is entitled for enhancement of compensation awarded by the Tribunal under various heads. 18. The accident occurred on 21.07.2003. At the time of accident the appellant was aged 49 years. He claimed a monthly income of Rs.5,000/-. No materials were placed before the Tribunal to prove the monthly income of the appellant. The appellant has also not chosen to mount the witness box. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.2,000/-, for the purpose of assessing compensation under various heads. 19. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011)** **13 SCC 236]** the Apex Court reckoned the monthly income of MACA.No.948 of 2010 9 a coolie (manual labourer), who met with a road accident in the year 2004, at the age of 35 years, notionally as Rs.4,500/-. The Apex Court held that, the claimant who was working as a coolie cannot be expected to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in the facts of the said case, the Tribunal should have accepted the claim of the claimant. The Apex Court made it clear that, in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant, in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. 20. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , taking note of the earlier decision in **Ramachandrappa's case (supra)** , the Apex Court reckoned the monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. In the said decision, MACA.No.948 of 2010 10 the Apex Court held that, a labourer in an unorganised sector doing his own business cannot be expected to produce documents to prove his monthly income. Therefore, there was no reason for the Tribunal and the High Court to ask for evidence to prove his monthly income. Going by the state of economy prevailing at that time and the rising prices in agricultural products, the Apex Court accepted his case that a vegetable vendor is reasonably capable of earning 6,500/- per month. 21. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2003 and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.4000/-, for the purpose of assessing compensation under various heads. 22. The document marked as Ext.A2 is the wound certificate and Exts.A3 and A5 are discharge summaries. As evidenced from medical records, in the accident the appellant sustained fracture on both bones left forearm with bone loss, multiple laceration left foot and lacerated wound on the forehead. He had undergone inpatient treatment for a period of MACA.No.948 of 2010 11 11 days. Ext.A9 series of medical bills are for a sum of Rs.41,000/-. 23. The documents marked as Ext.A6 is the disability certificate issued by a doctor, in which the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed at 19.62%. In Ext.A6 it is noted that there is shortening of left forearm bones by two inches. There is post-traumatic arthritis of the left wrist joint. X-ray of left hand showed features of ankylosis of IP joint of all fingers of left hand. The movements of the left wrist are limited. 24. The appellant has not chosen to prove Ext.A6 by examining the doctor concerned. Taking into consideration the nature of disabilities noted in Ext.A6, the Tribunal fixed the percentage of disability as 15% for the purpose of assessing the compensation under various heads, instead of discarding the said assessment in toto. The procedure adopted by the Tribunal cannot be said to be arbitrary or illegal. 25. The compensation awarded by the Tribunal under various heads reads as under : |various heads reads as under :|| |---|---| |Compensation for loss of earning|Rs.12,000| |Cost of medicine and treatment<br>charges|Rs.41,000| |Transportation charges|Rs.10,000| MACA.No.948 of 2010 12 |Bystander expenses|Rs.2,000| |---|---| |Extra nourishment|Rs.700| |Damage to clothing|Rs.300| |Compensation for pain and suffering|Rs.20,000| |Compensation<br>for<br>permanent<br>disability and loss of earning power|Rs54,000/-| |Compensation for loss of amenities|Rs.2,000| |Total|Rs.1,42,000| 26. Towards loss of earning the Tribunal awarded a sum of Rs.12,000/- at the rate of Rs.4000/- for a period of six months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 6 months fixed by the Tribunal for granting loss of earning is just and reasonable. Since the monthly income of the appellant is re-fixed notionally as Rs.4,000/-, the compensation under the head loss of earning is re-fixed as Rs.24,000/- (6000 x 4), resulting an additional compensation of **Rs.12,000/- (24,000 -12,000).** 27. Towards medical expenses, the Tribunal awarded a sum of Rs.41,000/- covered by Ext.A9 series of medical bills. In the absence of any further materials, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 28. On account of the injuries sustained in the accident, MACA.No.948 of 2010 13 the appellant had undergone inpatient treatment for 11 days. The accident is of the year 2003. Towards transportation to hospital, the Tribunal awarded a sum of Rs.10,000-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 29. Towards bystander expenses the Tribunal awarded a sum of Rs.2,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.700/-. The accident is of the year 2003 and the appellant had undergone inpatient treatment for 11 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under the head bystander expenses is re-fixed as Rs. 1650/- (150 x 11), resulting an additional compensation of **Rs. 350/-** (2000 – 1650). The compensation under the head extra nourishment is re-fixed as Rs.1,100/- (100 x 11), resulting an additional compensation of **Rs. 400/-** (1,100 - 700). 30. Towards damage to clothing, the Tribunal awarded a sum of Rs.300/-. Considering the fact that the accident is of the MACA.No.948 of 2010 14 year 2003, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.450/-** . 31. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.20,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side. Therefore, the appellant is not entitled for any enhancement under this head. 32. In **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the Apex Court, after referring to its earlier decisions in **Kerala State Road Transport Corporation v. Susamma Thomas [(1994) 2 SCC 176]** , **U.P. State Road Transport Corporation v. Trilok Chandra [(1996) 4 SCC 362]** and **New India Assurance Co. Ltd. v. Charlie [(2005) 10 SCC 720]** held that the multiplier to be used should be as mentioned in column (4) of the Table in paragraph 40 of the said decision [prepared by applying **Susamma Thomas** , **Trilok Chandra** and **Charlie** ], which starts with an operative multiplier of **18** [for the age groups of 15 to 20 and 21 to 25 years], reduced by one unit for every five years, i.e., multiplier of **17** for 26 to 30 years, multiplier of MACA.No.948 of 2010 15 **16** for 31 to 35 years, multiplier of **15** for 36 to 40 years, multiplier of **14** for 41 to 45 years, and multiplier of **13** for 46 to 50 years, then reduced by two units for every five years, i.e., multiplier of **11** for 51 to 55 years, multiplier of **9** for 56 to 60 years, multiplier of **7** for 61 to 65 years and multiplier of **5** for 66 to 70 years. 33. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** a Constitution Bench of the Apex Court held that, as far as the multiplier is concerned, the Claims Tribunal and the Courts shall be guided by Step 2 that finds place in paragraph 19 of **Sarla Verma** , read with paragraph 42 of the said judgment. 34. In the instant case, as on the date of accident, the appellant was aged 49 years. In the light of the decisions of the Apex Court in **Sarla Verma's case** and **Pranay Sethi's case** referred to supra, the multiplier of 15 applied by the Tribunal is not correct and the proper multiplier to be applied is 13. 35. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.54,000/- (2,000 x 12 x 15 x 15/100). Since the monthly income of the appellant is re-fixed notionally as Rs.4,000/-, applying the multiplier of 13 applicable to the age group of the appellant and the percentage MACA.No.948 of 2010 16 of permanent disability as 15%, the compensation under the head permanent disability is re-fixed as Rs.93,600/- (4,000 x 12 x 13 x 15 /100), resulting an additional compensation of **Rs.39,600/-** (93,600 – 54,000) **.** 36. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.52,800/-** (fifty two thousand and eight hundred only) (12,000 + 350 + 400 + 450 + 39,600) in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 3[rd] respondent insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a certified copy of this judgment, after deducting the liability, if any, of the appellant/claimant towards Balance Court Fee and Legal Benefit Fund. The disbursement of additional compensation to the appellant/claimant shall be made taking note of the law on the point and in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. The appellant shall provide his Bank account details (attested copy of the relevant page of the Bank Pass Book having details of the Bank Account Number and IFSC MACA.No.948 of 2010 17 Code of the Branch) before the Tribunal, with copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment. This appeal is disposed of as above. No order as to costs. **Sd/-** ## **ANIL K.NARENDRAN JUDGE** ## Das/Mrcs The second sentence in paragraph 36 of the judgment dated 20.12.2019 in MACA.No.948 of 2010 is corrected as per order dated 18.08.2020 in R.P.No.471 of 2020 in MACA.No.948 of 2010 as follows : “The 1[st] respondent driver and the 2[nd] respondent owner shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a certified copy of this judgment, after deducting the liability, if any, of the appellant/claimant towards Balance Court Fee and Legal Benefit Fund.”