Jayachandran v. United India Insurance Co. Ltd. (MACA Nos. 203 of 2022 & 626 of 2020)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 1[ST] DAY OF MARCH 2023 / 10TH PHALGUNA, 1944** **MACA NO. 203 OF 2022** **AGAINST THE AWARD IN OPMV 1145/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , THRISSUR** ## **APPELLANT/PETITIONER:** JAYACHANDRAN, AGED 49 YEARS S/O RAMAKRISHNAN NAIR, VELLUR HOUSE, PONNUKKARA P O, THRISSUR-680306. C.HARIKUMAR SANDRA SUNNY ARUN KUMAR M.A ## **RESPONDENT/2ND RESPONDENT:** THE UNITED INDIA INSURANCE CO.LTD. DIVISIONAL OFFICE, PARK HOUSE BUILDING, 2ND STREET, ROUND NORTH, THRISSUR-680001., REPRESENTED BY ITS DIVISIONAL MANAGER. BY ADV JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.03.2023, ALONG WITH MACA.626/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NOs.203 of 2022 & 626 of 2020 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 1[ST] DAY OF MARCH 2023 / 10TH PHALGUNA, 1944 MACA NO. 626 OF 2020** **AGAINST THE AWARD IN OPMV 1145/2013 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/2ND RESPONDENT:** UNITED INDIA INSURANCE COMPANY LIMITED REGIONAL OFFICE, HOSPITAL ROAD ERNAKULAM, COCHIN682 035, REPRESENTED BY ITS REGIONAL MANANAGER BY ADV JOHN JOSEPH VETTIKAD ## **RESPONDENTS/CLAIMANTS/RESPONDENT NOS.1 AND 2 IN OP:** 1 JAYACHANDRAN, AGED ABOUT 48 YEARS, S/O. RAMAKRISHNAN NAIR, VELLUR HOUSE, PONNUKKARA P.O., THRISSUR DISTRICT,PIN-680 014 2 PRADEEP.K.V., AGED ABOUT 33 YEARS S/O. OMANAVIJAYAN, 9/311 (12/294), VALIYAPARAMBIL HOUSE, PALAMBRA P.O., MUKKALY, KANJIRAPPALY, KOTTAYAM, DISTRICT, PIN-686 518 HARIKUMAR C SANDRA SUNNY(K/926/2020) ARUN KUMAR M.A(K/1197/2021) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.03.2023, ALONG WITH MACA.203/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NOs.203 of 2022 & 626 of 2020 3 ## **JUDGMENT** ## **[MACA Nos.203/2022, 626/2020]** Among the two afore appeals, MACA No.203/2022 has been filed by Sri.Jayachandran - who met with a road accident on 31.12.2012, when his motorcycle driven by him was hit by the offending transport autorickshaw in a rash and negligent manner. He filed OP(MV) No.1145/2013 before the Motor Accidents Claims Tribunal, Thrissur (for short 'Tribunal'), seeking compensation for an amount of Rs.4,50,000/-, but which has been awarded a sum of only Rs.2,38,980/-. He, therefore, impugns the award as being inadequate. 2. While so, MACA No.626/2020 has been filed by the United India Insurance Company Limited - which issued the Policy of Insurance to the offending vehicle - on the ground that, since the vehicle was operated beyond the territorial limits mentioned in its permit, it should be deemed to be a violation of the same and hence that they ought to have been declared entitled to recover the compensation, after paying to the claimant, from the owner of the vehicle. 3. I have heard Sri.John Joseph Vettikad – learned counsel for the appellant in MACA No.626/2020; Sri.C.Harikumar - learned counsel appearing for the appellant in MACA MACA NOs.203 of 2022 & 626 of 2020 4 No.203/2022. There is no appearance for the second respondent - owner of the vehicle in MACA No.626/2020, even though service to him has been completed. 4. I will first deal with MACA No.203/2022, which has been filed by the claimant. 5. Sri.C.Harikumar confined his argument to the extent that the learned Tribunal has erred in adopting the notional income of his client, who was engaged in sale of milk to a society; and pointed out that, going by **Ramachandrappa v.** **Manager, Royal Sundaram Alliance Insurance Company** **Ltd.** [(2011) 13 SCC 236], the minimum notional income, even in the case of a person with unascertainable income in the year 2012 – when the accident occurred – was Rs.8,500/-. He showed me that the Tribunal, however, has adopted only an amount of Rs.6,000/- in favour of his client; and thus prayed that the compensation under the head 'disability' be revised. He further argued that the percentage of disability of his client ought to have been taken by the Tribunal to be 14%, as certified in Ext.A12 and that it has erred in reducing it to 11%. 6. I must say that I find substantial force in the submissions of Sri.C.Harikumar because the claimant has sought Rs.12,000/- as his monthly income before the Tribunal, MACA NOs.203 of 2022 & 626 of 2020 5 but it has been reduced to Rs.6,000/- for the reason that the same has not been substantiated. Going by **Ramachandrappa** (supra), in such an event - where the income could not be properly ascertained - the minimum reckonable was Rs.8,500/-. I fail to understand why it did not do so. Certainly, the claimant is entitled to relief in this appeal to such an extent. 7. That said, I cannot find any error in the Tribunal having adopted the percentage of disability to be 11%. This is because, going by the evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties with the express consent that it can be acted upon by this Court without dispute - particularly Ext.A12 medical certificate, which has been issued not by a Medical Board but by a Doctor, the injuries of the claimant recorded are: “fracture 3[rd] and 4[th] metacarpal right side, proximal and distal interphalnageal joints of middle and ring finger, 3[rd] and 4[th] meta carpal head is less prominent, 4th meta carpal is malunited with 5 degrees dorsal angulation and shortening. Right lateral collateral ligament of the knee joint and tenderness and irregularity of right heel pad (sic).” 8. The learned Tribunal correctly found that the disability MACA NOs.203 of 2022 & 626 of 2020 6 certified is for the limb and knee joint and not for the whole body; and thus reduced it to 11%, which, I am certain, was apposite, particularly when, as I have already seen above, Ext.A12 has not been issued by a Medical Board and it does not certify the whole body disability either. 9. That being said, coming to the appeal filed by the Insurance Company, I notice that the learned Tribunal has rejected their plea for liberty to recover the compensation from the owner, relying upon the judgment of **National Insurance Company Ltd. v. Rajender Giri and others** [2013 KHC 5204]. However, Sri.John Joseph Vettikad – learned counsel for the appellant, submits that the learned Tribunal did not advert to a binding judgment of the Hon'ble Supreme Court in **Rani v. National Insurance Company Ltd. & Ors.** [2018 KHC 6541], which has declared the law that, when a vehicle is driven outside the area granted by the permit, it amounts to a violation of the policy conditions. 10. I must say that there is great force in the afore submissions of Sri.John Joseph Vettikad; and therefore, am of the view that the said issue must be reconsidered by the Tribunal. I record that he did not oppose the remitting of the original petition by this Court for such purpose. MACA NOs.203 of 2022 & 626 of 2020 7 In the afore circumstances, (a) MACA No.203/2022 is allowed granting an amount of Rs.1,57,080/-, as compensation for disability, reckoning the notional income of the claimant to be Rs.8,500/- per month and multiplying it with the appropriate multiplier of 14 as per the judgment of the Hon'ble Supreme Court in **Sarla Verma v. Delhi Transport Corporation** [2010 (2) KLT 802 (SC)], retaining the percentage of disability to be 11%, as found by the Tribunal. In all other respects, the Award of the Tribunal will stand in tact. Needless to say, the appellant will be at full liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 8% as awarded by the Tribunal, from the date of claim until it is recovered. He will also be entitled to proportionate cost on the enhanced amount as ordered by the Tribunal. (b) MACA No.626/2020 is allowed and the impugned award of the Tribunal, to the extent to which it has refused liberty to the appellant - Insurance Company to recover the compensation to be paid by them to the claimant from the owner of the offending vehicle, is set aside; with a MACA NOs.203 of 2022 & 626 of 2020 8 consequential direction to it to reconsider the said sole issue, after affording necessary opportunities to both sides, except the claimant, of leading additional evidence and of further hearing, thus culminating in an appropriate order and necessary action thereon, as expeditiously as is possible, but not later than eight months from the date of receipt of a copy of this judgment. For this purpose, the parties, except the claimant, shall appear before the learned Tribunal at 11 a.m. on 21.03.2023. **Sd/- DEVAN RAMACHANDRAN** **JUDGE** stu