Josy v. Premkumar & Holy Family English Medium Public School & United India Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 12[TH] DAY OF APRIL 2024 / 23RD CHAITHRA, 1946 MACA NO. 2712 OF 2012`** ``` AGAINSTTHEORDER/JUDGMENTDATED28.07.2011INOPMVNO.1722 OF2006OFADDITIONALMOTORACCIDENTSCLAIMSTRIBUNAL, ALAPPUZHA ``` ## **`APPELLANT/PETITIONER:`** ``` JOSY AGED43YEARS S/O.P.G.PETER,PALLIKATHAYYIL HOUSE,THUMPOLIWARD,ALAPPUZHA. ``` ``` BYADVS. SRI.T.G.RAJENDRAN SRI.T.R.TARIN ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 PREMKUMAR`** ``` S/O.SIVANANDAN,KIZHAKKEVELILHOUSE, APWARDXI,ALAPPUZHA-6. ``` ## **`2 THE PRINCIPAL`** - **`HOLY FAMILY EM PUBLIC SCHOOL,VELLARANKALLU,KALOOR,ERNAKULAM.`** - **`3 THE UNITED INDIA INSURANCE CO.LTD THODUPUZHA BRANCH,REP. BY ITS MANAGER.`** ``` BYADVS. ``` ``` SRI.PADMALAYAN.P.P. SMT.D.GEETHA SMT.K.SHERINMOHAN ``` ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLY HEARDON12.04.2024,ALONGWITHMACA.1298/2016,THECOURTON THESAMEDAYDELIVEREDTHEFOLLOWING: ``` MACA Nos.2712 of 2012 & 1298 of 2016 2 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 12[TH] DAY OF APRIL 2024 / 23RD CHAITHRA, 1946 MACA NO. 1298 OF 2016`** ``` AGAINSTTHEORDER/JUDGMENTDATED12.06.2015INOPMVNO.1722 OF2006OFMOTORACCIDENTCLAIMSTRIBUNAL,ALAPPUZHA ``` ## **`APPELLANT/2ND RESPONDENT:`** ``` THEPRINCIPAL HOLYFAMILYENGLISHMEDIUMPUBLIC SCHOOL,VELLARAMKALLU,KALOOR, MUVATTUPUZHA,ERNAKULAMDISTRICT' ``` ``` BYADVS. SRI.MATHEWJOHN(K) SRI.DOMSONJ.VATTAKUZHY ``` ## **`RESPONDENTS-PETITIONER & RESPONDENTS 1 & 3:`** - **`1 JOSY S/O P.G. PETER, PALLIKATHAYIL HOUSE, THUMPOLI WARD, ALAPPUZHA`** ## **`2 PREMKUMAR`** ``` S/OSIVANANDAN,KIZHAKKEVELIL HOUSE,WARDNOXI,SOUTHARYADU PANCHAYATH,ALAPPUZHA ``` - **`3 THE UNITED INDIA INSURANCE CO. LTD REPRESENTED BY ITS MANAGER, THODUPUZHA`** ## **`R3 BY SRI.P.K MANOJKUMAR, SC.`** ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLY HEARDON12.04.2024,ALONGWITHMACA.2712/2012,THECOURTON THESAMEDAYDELIVEREDTHEFOLLOWING: ``` MACA Nos.2712 of 2012 & 1298 of 2016 3 ## **J U D G M E N T** The claim petitioner in OP(MV) No.1722 of 2006 on the file of Motor Accidents Claims Tribunal, Alappuzha, filed MACA No.2712 of 2012 challenging the award, on the ground of inadequacy of compensation. 2. The 2[nd] respondent, owner of the offending vehicle, filed MACA No.1298 of 2016 challenging the award, as the insurer was given the right to recover the compensation amount from the owner of the vehicle. 3. On 01.04.2006 at about 9 p.m, while the appellant in MACA No.2712 of 2012 was pillion riding a motorcycle, he was knocked down by KL/7C 8379 tempo van owned by the appellant in MACA No.1298 of 2016. He suffered serious injuries including fracture and he was hospitalised for 23 days in total. He approached the Tribunal claiming compensation of Rs.2,51,000/-. But, the Tribunal awarded only Rs.66,684/-. Hence he filed MACA No.2712 of 2012. 4. 1[st] respondent was the driver of the offending tempo van. 2[nd] respondent was its owner and the 3[rd] respondent was its insurer. 5. Respondents 1 and 2 remained ex parte before the MACA Nos.2712 of 2012 & 1298 of 2016 4 Tribunal. 3[rd] respondent/insurer contested the case but admitted the policy. According to them, 1[st] respondent/driver had no valid driving licence to drive KL/7C 8379, which was a transport vehicle and he was having no badge also during the relevant period. So, learned Tribunal, finding violation of the policy conditions, directed the insurer to pay the compensation awarded initially to the claimant, and permitted them to recover the same from the 2[nd] respondent/owner. 6. 2[nd] respondent/owner approached the Tribunal for setting aside the ex parte award. Learned Tribunal dismissed his petition, against which he approached this Court and obtained an order to take a decision as to the question of liability of the registered owner to compensate the claimant. Learned Tribunal, as per Award dated 12.06.2015, found that the 2[nd] respondent/owner was responsible to compensate the claimant, thereby confirming the pay and recovery, ordered in favour of the insurer. Against that finding, 2[nd] respondent/owner has filed MACA No.1298 of 2016. 7. Heard learned counsel for the appellants and learned counsel for the 3[rd] respondent/insurer. 8. Regarding the liability of the owner of the vehicle, the finding of the Tribunal was to the effect that the 1[st] MACA Nos.2712 of 2012 & 1298 of 2016 5 respondent/driver had no valid driving licence and badge to drive the offending vehicle. Learned counsel for the 2[nd] respondent produced Annexure A registration particulars of the offending vehicle which shows that it was an LMV-Contract Carriage (EIB) and its unladen weight was 2105 kg. It further shows that it was an educational institution bus owned by Holy Family English Medium Public School, Vellamkallu, Kallur. 9. Learned counsel for the 3[rd] respondent/insurer would submit that, even if the offending vehicle was a light motor vehicle, since it was being used as an educational institution bus, it will come under the classification of transport vehicle under Section 2(47) of the Motor Vehicles Act, and so it should have been driven by a driver having licence to drive a transport vehicle. 1[st] respondent/driver was having only licence to drive light motor vehicles, and so there was violation of the policy conditions. But, going by the decision **Mukund Dewangan v. Oriental Insurance Company Limited [2017(4) KHC 648]** , even if a vehicle is being used as a transport vehicle, if it's unladen weight is below 7500kg, it is liable to be treated as a light motor vehicle. ## 10. Paragraph 46 of that judgment reads thus: “46. S.10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with MACA Nos.2712 of 2012 & 1298 of 2016 6 respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also, a holder of light motor vehicle licence can drive all the vehicles of the class - including transport vehicles. It was pre amended position - as well the post amended position of Form 4 as amended on 28/03/2001. Any other interpretation would be repugnant to the definition of "light motor vehicle" in S.2(21) and the provisions of S.10(2)(d), R.8 of the Rules of 1989, other provisions and also the forms which are in tune with the provisions. Even otherwise the forms never intended to exclude transport vehicles from the category of 'light motor vehicles' and for light motor vehicle, the validity period of such licence hold good and apply for the transport vehicle of such class also and the expression in S.10(2)(e) of the Act 'Transport Vehicle' would include medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, heavy passenger motor vehicle which earlier found place in S.10(2) (e) to (h) and our conclusion is fortified by the syllabus and rules which we have discussed. Thus we answer the questions which are referred to us thus: (i) 'Light motor vehicle' as defined in S.2(21) of the Act would include a transport vehicle as per the weight prescribed in S.2(21) read with S.2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No. 54/1994. (ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, 'unladen weight' of which does not exceed 7500 kg. and holder of a driving licence to drive class of "light motor vehicle" as provided in S.10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or - a motor car or tractor or road roller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under S.10(2)(d) continues to be valid after Amendment Act 54/1994 and 28/03/2001 in the form. MACA Nos.2712 of 2012 & 1298 of 2016 7 (iii) The effect of the amendment made by virtue of Act No. 54/1994 w.e.f. 14/11/1994 while substituting Cls.(e) to (h) of S.10(2) which contained "medium goods vehicle" in S.10(2)(e), medium passenger motor vehicle in S.10(2)(f), heavy goods vehicle in S.10(2)(g) and "heavy passenger motor vehicle" in S.10(2)(h) with expression 'transport vehicle' as substituted in S.10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of S.10(2)(d) and S.2(41) of the Act i.e. light motor vehicle. (iv) The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect”. 11. In the light of the above decision, the offending vehicle in this case, which was having unladen weight of 2105 kg, is liable to be treated as a light motor vehicle. Ext.B1 driving licence particulars of the 1[st] respondent shows that, he was having driving licence to drive non transport vehicle valid from 26.07.1990 to 07.04.2010. It was valid during the period of accident also. 3[rd] respondent/insurer is admitting the policy during the relevant period. 12. Based on _Mukund Dewangan’s case_ cited supra, the offending vehicle was liable to be treated as a light motor vehicle. The 1[st] respondent was having valid driving licence to drive light MACA Nos.2712 of 2012 & 1298 of 2016 8 motor vehicles as on the date of accident. So, there was no violation of the policy conditions. So, the 3[rd] respondent/insurer was liable to indemnify the 2[nd] respondent/owner for the act committed by the 1[st] respondent/driver. So, the finding of the Tribunal that the company can recover the compensation amount from the 2[nd] respondent/owner is liable to be set aside. 13. Now coming to the appeal filed by the claimant i.e. MACA No.2712 of 2012, learned counsel for the appellant would submit that, the compensation awarded by the Tribunal is on the lower side. The appellant/claimant was a 43 year old Tailor earning monthly income of Rs.8,000/-. The Tribunal accepted his income as such, and fixed his monthly income @ Rs.8,000/- as claimed by him. But, learned Tribunal assessed loss of earning for one month only. He had suffered fracture of trochanter right, fracture SD 7 right, fracture condyle right, fracture tibia right, lacerated wound right knee 2x1 cm and right leg 6x3, 3x2, 2x1. So, this Court is of the view that loss of earning for four months can be granted @ Rs.8,000/- per month which will come to Rs.32,000/-. After deducting Rs.8,000/already given, he is entitled to get the balance amount of Rs.24,000/-. 14. Towards bystander expenses, learned Tribunal awarded MACA Nos.2712 of 2012 & 1298 of 2016 9 Rs.2,300/-. Since he was hospitalised for 23 days, this Court is inclined to award Rs.1,500/- more under the head ‘bystander expenses’. 15. Towards damage to clothing, no amount was awarded by the Tribunal. This Court is inclined to award Rs.500/- under that head. 16. The compensation awarded under all other heads seems to be reasonable and hence it needs no modification. |**Head of claim**<br>**(1)**|**Amount**<br>**awarded by**<br>**the Tribunal**<br>**(2)**|**Amount**<br>**awarded in**<br>**appeal**<br>**(3)**|**Difference to**<br>**be drawn as**<br>**enhanced**<br>**compensation**<br>**(4)**| |---|---|---|---| |Loss of earning|Rs.8,000/-|Rs.32,000/-|Rs.24,000/-| |Bystander<br>expenses|Rs.2,300/-|Rs.3,800/-|Rs.1,500/-| |Damage to<br>clothing|-|Rs.500/-|Rs.500/-| |**Total**|**Rs.10,300/-**|**Rs.36,300/-**|**Rs.26,000/-**| 17. The appellant in MACA No.2712 of 2012 is entitled to get enhanced compensation of Rs.26,000/(Rupees Twenty six thousand only). The 3[rd] respondent/insurer is directed to deposit the enhanced compensation of Rs.26,000/(Rupees Twenty six thousand only) with interest @ 7% per annum from the date of MACA Nos.2712 of 2012 & 1298 of 2016 10 petition till the date of deposit (except 399 days of delay in filing the appeal) before the Motor Accidents Claims Tribunal, Alappuzha, within a period of two months from the date of receipt of a copy of this judgment. Learned Tribunal shall disburse that amount to the appellant in MACA No.2712 of 2012, after deducting the liabilities, if any, towards Tax, balance court fee and legal benefit fund. The amount deposited by the appellant in MACA No.1298 of 2016 before the Tribunal shall be refunded. MACA Nos.2712 of 2012 and 1298 of 2016 are allowed to the extent as above. No order as to costs. Sd/- **SOPHY THOMAS JUDGE** smp