Gopalakrishnan v. Jaico T. Paul and Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **TUESDAY, THE 24TH DAY OF OCTOBER 2017/2ND KARTHIKA, 1939** ## **MACA.NO. 798 OF 2010 ( ) -------------------------** **AGAINST THE AWARD IN O.P.(M.V.) NO.498/2002 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR DATED 29-10-2009** **------------------------** ## **APPELLANT(S)/PETITIONER:** **-----------------------** **GOPALAKRISHNAN, S/O.SANKARAN, MUNDAYOORVALAPPIL HOUSE, MUTHUVARA, THRISSUR.** **BY ADV. SRI.DILIP J. AKKARA** **RESPONDENT(S)/RESPONDENTS: --------------------------** **1. JAICO T.PAUL, THEKKANATH HOUSE, MUTHUVARA.P.O., PUZHAKKAL, THRISSUR.** **2. MANOJ, S/O.VELU, POOTHOPARAMBIL HOUSE, MUTHUVARA.P.O, PUZHAKKAL, THRISSUR.** **3. UNITED INDIA INSURANCE CO.LTD.,** **REP.BY BRANCH MANAGER, BRANCH OFFICE, KURUPPAM ROAD, THRISSUR.** **R3 BY ADVS. SMT.D.GEETHA SRI.N.RENJITH SMT.K.SHERIN MOHAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** **-----------------------M.A.C.A. No.798 of 2010 ---------------------------------Dated this the 24[th] day of October, 2017** ## **J U D G M E N T** This appeal is preferred against the award in O.P.(M.V.) No.498 of 2002 of the Motor Accidents Claims Tribunal, Thrissur by the injured. The appellant sustained injuries in a motor accident on 27.09.2001 while he was travelling in a lorry bearing registration No.KL-3/8028 with his agricultural products as the owner of the goods. The learned tribunal awarded an amount of Rs.35,000/(Rupees thirty five thousand only) with interest and cost as compensation and directed the owner of the vehicle to satisfy the award. Being aggrieved by that, the injured preferred this appeal. 2. Appellant's case in the lower court was that on the date of accident, while he was travelling in a lorry bearing registration No.KL-3/8028 as the owner of goods through Kunnamkulam-Thrissur road and when it reached at Puzhakkal near Toyota show room, the lorry hit on a van bearing registration No.KL-9/H-9966, as a ## M.A.C.A. No.798 of 2010 2 result of which he sustained serious injuries. Immediately he was removed to West Fort hospital, Thrissur. The driver and owner of the lorry were set ex-parte in the trial court. The insurer admitted the insurance of the vehicle but contended that the appellant was a gratuitous passenger. The claimant's evidence consists of oral testimony of PW1 and PW2 and documentary evidence of Exts.A1 to A9. Respondents evidence consists of documentary evidence of Ext.B1. 3. In a motor accidents claim petition, the injured is entitled to get just amount as compensation. The tribunal is duty bound to ascertain the compensation claimed on each head and determine the amount of compensation which appears to be just. This principle was reiterated by the apex court in **Rajkumar** v. **Ajay Kumar and Anr. [2011 ACJ 1]** . Therefore, while fixing the amount of compensation payable to the victim in an accident, the damages have to be assessed separately as pecuniary damages and non pecuniary damages. 4. PW1, in his evidence, deposed that he was a ## M.A.C.A. No.798 of 2010 3 night watchman in Adat Farmers' Bank, Thrichur and was getting an amount of Rs.4,000/- per month. As per Ext.A3, the Accident Register cum Wound Certificate the petitioner sustained lacerated wound on face 2x1x1 c.m., abrasion on left leg upper 1/3[rd] with contusion and pain on neck. It also shows crack fracture on the left tibia. Ext.A4 is the discharge card which shows that he was admitted in the hospital on 27.09.2001 and discharged on 30.09.2001. Even though Ext.A8 was produced and reported that there was cerebral concussion, no such injuries were found in the discharge card. Considering the above injuries the learned tribunal awarded following amounts as compensation. Loss of earning Rs.5,000/-, Transportation Rs.750/-, Extra nourishment Rs.1,000/-, Damages to clothing Rs.500/-, Treatment Expenses Rs.11,651/-, Bystander expenses Rs.1,000/-, Pain and sufferings Rs.10,000/- and for discomfort Rs.5,000/-. The total compensation awarded by the learned tribunal was Rs.34,901/- which was rounded to Rs.35,000/- (Rupees thirty five thousand M.A.C.A. No.798 of 2010 4 only). 5. The appellant contended that he was getting an amount Rs.4,000/- per month. The learned Tribunal took only Rs.2,500/- as his monthly income. Apex court in **Syed Sadiq and Others** v. **Divisional Manager, United India Insurance Company Limited (2014) 2 Supreme Court Cases 735** held that where the injured is working as a coolie and he stated that he was earning Rs.4,000/- per month as his monthly income, in the absence of any other documentary evidence, that income has to be admitted. In **Syed's** case **(Supra)** , the trial court reduced the income from Rs.4,500/- to Rs.3,000/-, but in view of the direction of the Apex Court the statement of the injured has to be admitted. Considering the above decision, I am of the opinion that the appellant is entitled to get Rs.4,000/- as his monthly income. Hence an amount of Rs.8,000/- (4000x2) is hereby granted for loss of income for two months. The tribunal already awarded an amount of Rs.5,000/- on that head. The balance comes to Rs.3,000/-. No increase in the ## M.A.C.A. No.798 of 2010 5 other heads is necessary. 6. The insurer took a contention that there is violation of the policy conditions. Sec.147 of the Motor Vehicles Act, 1988 reads as follows: “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 subsection (2)- (i) against any liability which may be 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 ## M.A.C.A. No.798 of 2010 6 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 a 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 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. (2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:- (a) save as provided in clause (b), the amount of liability incurred; (b) in respect of damage to any property of a third party, a limit of rupees six thousand: Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier. (3) A policy shall be of no effect for the purposes of this ## M.A.C.A. No.798 of 2010 7 Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases. (4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe. (5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.” 7. There is a statutory liability on the part of the insurer to satisfy the award. Even though the insurer took a contention that the appellant was a gratuitous passenger, no evidence has been adduced in the lower court to prove that contention. In the absence of such evidence, the above contention of the insurer regarding M.A.C.A. No.798 of 2010 8 the violation of the policy condition is unsustainable in law and the insurance company/R3 is directed to satisfy the award amount of Rs.38,000/- (35,000+3000) with 8% interest from the date of petition till realisation with proportionate cost within a period of thirty days from the date of receipt of a copy of this judgment failing which it will carry 12% interest from the date of petition. Needless to say that the appellant is not entitled to get any interest for the period of delay in filing the appeal. This appeal is disposed of as above. ## Sd/- **P.D. RAJAN, JUDGE** / True Copy / P.A. To Judge NS