Joy v. Joby & The Manager, New India Assurance Co. Ltd. (MACA Nos. 855/2012 & 2664/2012) arising from O.P.(MV) No.59/2006, Motor Accidents Claims Tribunal, Irinjalakuda, Kerala, High Court of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH SATURDAY, THE 6TH DAY OF AUGUST 2016 / 15TH SRAVANA, 1938 **MACA.No. 855 of 2012** AGAINST THE AWARD IN O.P(M.V)No.59/2006 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA ## **APPELLANT** /1ST RESPONDENT JOY, S/O.MALIAKKAL OUSEPH, NADAVARAMBA, DESOM, IRINJALAKUDA, THRISSUR DISTRICT REPRESENTED BY HIS POWER OF ATTORNEY HOLDER M/S.SHERLY, W/O.JOY, MALIAKKAL HOUSE, NADAVARAMBA DESOM, VELOOKKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV.SRI.T.N.MANOJ ## **RESPONDENTS** /PETITIONER AND 2ND RESPONDENT: 1. JOBY, S/O.JOHNY, PALATHINKAL HOUSE, KALPARAMBU DESOM, POOMANGALAM VILLAGE, MUKUNDAPURAM TALUK. 2. THE MANAGER NEW INDIA ASSURANCE COMPANY LTD. BRANCH OFFICE, VELLANIKARAN BUILDINGS, MAIN ROAD IRINJALAKUDA. R2 BY ADV.SRI.K.K.M.SHERIFF R2 BY ADV. SRI.LAL K.JOSEPH R2 BY ADV. SRI.A.A.ZIYAD RAHMAN R1 BY ADV. SRI.V.BINOY RAM (COUNSEL FOR CAVEATOR) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06-08-2016, ALONG WITH M.A.C.A.NO.2664/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** ------------------------------------- M.A.C.A.Nos.855 & 2664 of 2012 -------------------------------------Dated 6[th] August, 2016 ## **JUDGMENT** ## **Ravikumar, J.** These appeals arise from the award in O.P.(M.V)No.59 of 2006 passed by the Motor Accidents Claims Tribunal, Irinjalakuda. The former appeal has been preferred by the owner-cum-rider of the offending vehicle challenging the exoneration of the 2[nd] respondent insurance company from indemnifying him in the light of the contract of insurance. The latter appeal has been preferred by the claimant in the said claim petition seeking enhancement of the compensation. The facts led to the filing of the claim petition are as hereunder:- On 23.12.2015 the claimant/the appellant in the latter appeal, was riding his motor cycle bearing Reg.No.KL-8/W 9580 through Irinjalakkuda - Kodungallur public road from south to north. When he reached the southern side of Chanthakunnu Junction the motor cycle bearing Reg.No.KL-8/Y 6695, being ridden by the first respondent/the appellant in the former appeal, came from the opposite side and dashed against the motor cycle ridden by the claimant. Consequently, the claimant sustained injuries and he preferred the 2 M.A.C.A.Nos.855 & 2664 of 2012 aforementioned claim petition seeking compensation for the injuries sustained by him under Section 166 of the Act. To prove that he had incurred permanent disability as a result of the injuries sustained in the accident he got examined PWs 1 and 2. On his side Exts.A1 to A16 were also got marked. On the side of the respondents one M.S.Peethambaran was examined as DW1 besides getting marked Exts.B1 to B7. The Tribunal had analysed the evidence adduced by both sides and also considered the rival contentions and then arrived at the finding that the accident in question had occurred solely due to the negligence of the first respondent therein/the appellant in the former appeal and passed the impugned award whereby a total compensation of 3,16,197/- was granted with interest at the rate of 7.5% per₹ annum from the date of petition till realisation. The Tribunal further found that there was breach of conditions of the insurance policy as the first respondent/the appellant in the former appeal rode the vehicle knowing fully that he was not in possession of an effective valid driving licence and consequently, exonerated the 2[nd] respondent from the statutory liability to indemnify him. It is in the said circumstances that the former appeal has been preferred by the first respondent therein. As noticed hereinbefore, it is soliciting enhancement of compensation that the claimant filed the latter appeal. 3 M.A.C.A.Nos.855 & 2664 of 2012 2. As noticed hereinbefore, these appeals arise from the same occurrence and from the same award. Hence, the appeals were heard jointly and are being disposed of by this common judgment. For the sake of convenience, hereinafter in this judgment, the parties are referred to in accordance with their respective status and rank before the Tribunal unless otherwise specifically mentioned. 3. We have heard the learned counsel for the claimant, the learned counsel for the first respondent and Adv.K.K.M.Sheriff, the learned counsel appearing for the 2[nd] respondent in M.A.C.A.No.855 of 2012 and Adv.Raji.T.Bhaskar, the learned counsel appearing for the 2[nd] respondent insurance company in M.A.C.A.No.2664 of 2012. 4. Based on the rival contentions advanced before us we are of the view that it is only appropriate to consider the contentions raised in M.A.C.A.No.855 of 2012, firstly. As noticed hereinbefore, it is filed by the first respondent who is the owner-cum-rider of the offending motor cycle and it carries the challenge against the exoneration of the 2[nd] respondent insurance company from the liability to indemnify him. It is evident that before the Tribunal the 2[nd] respondent took up a contention that the first respondent was not having an effective driving licence to drive motor cycle at the time of the accident. Evidently, it is also contended therein that for having driven the vehicle without any licence 4 M.A.C.A.Nos.855 & 2664 of 2012 the first respondent was charge sheeted and the accident had occurred due to the fact that he was then inexperienced to ride the motorcycle. In such circumstances, in the written statement filed before the Tribunal the 2[nd] respondent contended that it is not liable to indemnify the first respondent. The first respondent also filed a written statement before the Tribunal admitting the fact that at the time of the accident he was riding a motorcycle bearing Reg.No.KL-8/Y 6695. But, at the same time, it is stated therein that the accident had occurred due to the negligence of the claimant and therefore, he is not liable to pay compensation. Evidently, he has also taken up a contention that since the vehicle in question was then insured with the 2[nd] respondent, the 2[nd] respondent is bound to indemnify him. A scanning of the impugned award would reveal that to drive home the point that the first respondent was not in possession of an effective valid driving licence the 2[nd] respondent had produced Exts.B1 to B5. Obviously, Exts.B6 and B7 were also summoned and they were proved through DW1. A scanning of the award would reveal that before the Tribunal after producing Exts.B1 to B5 the 2[nd] respondent took up a contention that Ext.B2 licence was issued unauthorizedly and it is a fake licence. Evidently, a further contention was also taken to the effect that if Ext.B2 is true and genuine a petty case for driving the motor cycle 5 M.A.C.A.Nos.855 & 2664 of 2012 without licence ought not to have been charged against him. It is also contended before the Tribunal that the first respondent is a resident of Irinjalakkuda and he had not given any proper explanation for getting Ext.B2 licence from the office of the Joint RTO, Perumbavoor. Before the Tribunal, DW1 deposed to the effect that Ext.B2 licence was also issued by one Asokan against whom several cases regarding issuance of fake vehicle licences were registered. The said Asokan was the Joint RTO at the time of issuance of Ext.B2. But, at the same time, it is evident from the impugned award itself that DW1 deposed that he could not clearly say that the signature found in Ext.B2 is that of the said Asokan. He would further depose that he had not verified the same. Evidently, Exts.B6 and B7 were summoned from Judicial First Class Magistrate Court, Perumbavoor where cases registered against the said Asokan were then pending, alleging commission of offences punishable under Sections 406, 420 and 468 of IPC. It is also relevant to note that before the Tribunal DW1 deposed as follows:- “Original licence of B2 issue ച�യ. B2 പക�ര� Irinjalakuda യ�ൽ ന�ന�ച�ന� ക�ണന. Perumbavoor RTO Office ൽ ന�ന� issue ച�യത�യ� ക�ണന. അവ�ച� ചക�ടത Application ക���തത� ചക�ണ� verify ച�യ�ന�വ�ല. Fixed Fees അ�യ��. അത�ന� T.R.S receipt Book ഉണ�. ഇത� ചവച� വവ�� അ�ച� എന� verify ച�യ��. ഈ വകസ�ൽ fees അ�ച�ടവണ� എന� ഞ�ൻ verify ച�യ�ട�ല.” 6 M.A.C.A.Nos.855 & 2664 of 2012 5. DW1 further deposed that he could not categorically state whether Ext.B2 is a fake licence. Exts.B2 to B5 were proved through him. The Tribunal apparently arrived at a conclusion that the first respondent had not challenged the evidence of DW1 and he had also failed to get examined the said Sri.Asokan against whom on the aforesaid allegations criminal cases were registered and ultimately held that there is no material to find that Ext.B2 is an effective valid driving licence. Virtually, a perusal of the recital in paragraph 9 of the impugned award would reveal that on appreciation of the evidence the Tribunal had arrived at the conclusion that Ext.B2 was not issued authorisedly from the office and no corresponding records revealing its issuance were kept in that office. Ext.B5 is a letter to the effect that driving licences issued by Sri.Asokan are with no history sheet or no ground register is available with respect to them. Ext.B2 bears a writing in red ink atop the driving licence and it refer to a corresponding entry in volume 185 at page 10. But Ext.B6 register was summoned and it shows no entry in page 10. Ext.B7 is the photocopy of the same register. Based on the same, the Tribunal held that the first respondent had ridden the motorcycle knowing fully that he had no licence to ride the same and thereby he contributed to the accident. 7 M.A.C.A.Nos.855 & 2664 of 2012 6. While considering the question whether the finding of the Tribunal that the first respondent was not having an effective and valid driving licence, certain crucial aspects have to be considered. The evidence on record and the respective pleadings as also the manner in which they were considered by the Tribunal would undoubtedly indicate that there is no dispute regarding the fact that it was issued from the office of the Regional Transport Authority, Perumbavoor. But the Tribunal after appreciating the evidence held that Ext.B2 cannot be said to have issued authorisedly as there was no corresponding entry in the relevant records. 7. We have carefully gone through Exts.B2 to B5. Ext.B2 would reveal that it happened to be issued in pursuance of a fax message from the Government Pleader attached to the Advocate General's office in connection with M.A.C.A.No.2947/2008. Ext.B3 is in fact an intra-departmental communication, rather a letter issued by the Transport Commissioner to all Regional Transport Officers and Joint Regional Transport Officers. As per the same, the Deputy Transport Commissioner, Ernakulam was authorised to verify all licences issued by one Sri.S.Asokan, the then Joint Regional Transport Officer (under suspension) during his tenure as Joint Regional Transport Officer, Perumbavoor. In fact, the Deputy Transport Commissioner, Ernakulam 8 M.A.C.A.Nos.855 & 2664 of 2012 was authorised to identify the fraudulent licences issued by the said Asokan and initiate necessary action to cancel such fraudulent licences, as per rules. It is also to be noted that in and vide the same letter, all Regional Transport Officers and Joint Regional Transport Officers were also directed to conduct Adalaths to impound fraudulent licences, if any, issued and furnish the details of the Adalaths conducted to the office of the Transport Commissioner urgently. Ext.B4 is the letter from the Transport Commissioner to all Regional Transport Officers and Joint Regional Transport Officers which carries instructions regarding the verification of the motor driving licences to be done in the light of Ext.B3 letter. As per Ext.B4 they were required to strictly adhere to the procedures indicated thereunder while verifying the genuineness of all licences which were directed to be verified as per Ext.P3. It is directed thereunder to verify the genuineness of the card form licences provided with bar codes which can be read with bar code readers available with Smart move. They were also directed to take care to ascertain whether the licence holder had obtained learner's licence and whether they had appeared for the driving test from the ground register. On going through Ext.B5, it is seen that it got no relevance for the purpose of deciding the issue involved in this case. 9 M.A.C.A.Nos.855 & 2664 of 2012 8. A perusal of impugned judgment would reveal that the Tribunal had arrived at the aforesaid conclusion that Ext.B2 was not authorisedly issued from the office of the Joint Regional Transport Officer, Perumbavoor owing to the absolute absence of any corresponding entry in Ext.B6. To arrive at the conclusion that Ext.B6 is a corresponding record, an endorsement “ V 185 in page 10” made on top of Ext.B2 was relied on. Even if it can be said that such an endorsement is there in Ext.B2, it can only be taken that such an endorsement was made either by the said Asokan, the Joint Transport Officer or any officer then attached to the said office. Certainly with respect to such an entry, nothing can be attributed on the first respondent as it is nothing, but an official action. True that no corresponding entry is seen in Ext.B6 regarding the issuance of Ext.B2. 9. It is to be noted that there is no serious dispute as to the fact that the first respondent was earlier issued with a licence for driving light motor vehicles. The endorsement regarding authorization to drive a motor vehicle was subsequently entered therein, invoking the power under Section 11 of the Motor Vehicles Act. Whether such an entry is also to be entered in Ext.B6 or whether the details regarding the issuance of the original licence alone would be entered therein are not forthcoming in evidence. We made this observation because on 10 M.A.C.A.Nos.855 & 2664 of 2012 going through Ext.B6 we could not find any endorsement in any of the pages regarding authorization to drive any other class of vehicles after the initial grant in respect of a particular class of vehicles, to indicate any compulsion or practice, in that regard. The signature of the concerned licensing authority is found only after making the entry/entries relating the issuance of the licence at the first instance. Evidently, after recording or making such entries in relation to the details of licences and authorization granted at the first instance, they were seen counter signed by the officer concerned. If the subsequent entries touching the authorization granted invoking the power under Section 10(11) are also to be entered therein after making the initial entries, the officer concerned should have put his signature beneath the same, atleast in one page of Ext.B6. Apart from those things, for the purpose of considering the issue involved in this case, the question is whether Ext.B2 was issued from the office of the Joint RTO, Perumbavoor. The records as also the finding of the Tribunal after looking into such records would show that it was held not issued authorisedly by the Tribunal owing to the absence of any corresponding entry in the contemporary records produced. It is in that context that the directions which were given under Exts.B3 and B4 would assume relevance. As noticed hereinbefore, the Transport Commissioner 11 M.A.C.A.Nos.855 & 2664 of 2012 specifically directed all Regional Transport Officers and Joint Regional Transport Officers to conduct Adalaths to impound fraudulent licences. Such an order was issued by the Transport Commissioner as early as on 25.06.2009. In that context, Section 19 (1)(e)of the Motor Vehicles Act is also worthy to be noted. Section 19(1)(e) empowers the licensing authority to disqualify a licence holder from holding that driving licence issued or to revoke a licence in case, he had obtained any such driving licence or a licence to drive a particular class or description of motor vehicle, by fraud or misrepresentation. The direction issued under Ext.B3 and B4 together with the enabling provision under Section 19(1)(e) would go to show that if it was found that Ext.B2 licence was also a fraudulent licence issued by the aforementioned S.Asokan to the first respondent, it would have been cancelled, invoking the said power, either by the licensing authorities pursuant to the instruction given under Ext.B3 or by conducting Lok Adalaths conducted in terms of the directions thereunder. There is nothing on record in that regard. It is relevant to note that not even a contention was raised by the respondents to the effect that based on Ext.B3 and Ext.B4 such steps for cancelling Ext.B2. Shortly stated, the facts obtained from the relevant records and the factual position obtained from the records produced is that Ext.B2 was actually issued 12 M.A.C.A.Nos.855 & 2664 of 2012 from the office of the Joint Regional Transport Officer, Perumbavoor and at no point of time it was cancelled invoking the power under Section 19(1)(e) of the M.V.Act despite the specific directions made under Ext.B3 and B4 to cancel fraudulent licences issued by the aforementioned S.Asokan during his tenure as Joint Regional Transport Officer, Perumbavoor. What is more relevant for deciding the case on hand is that there is absolute absence of any material to prove or even suggest, that the first respondent had played any fraudulent method for getting Ext.B2. The respondent did not have a case that the first respondent did some fraudulent acts in connection therewith criminal case, was registered against the aforesaid S.Asokan regarding issuance of fraudulent licence to the first respondent and the first respondent herein was also made a co-accused in any such case. It is also to be noted that DW1 who was the successor Joint Regional Transport Officer of Sri.S.Asokan in the office of the Joint Regional Transport Officer, Perumbavoor also did not depose anything in that regard while being examined before the Tribunal. More importantly, Ext.B2 was not cancelled till date. True that the Tribunal had made an observation in the judgment that on going through the relevant records, there is a cloud of suspicion regarding the question whether Ext.B2 is an effective and valid driving licence. But in the light of the reasons given by us 13 M.A.C.A.Nos.855 & 2664 of 2012 hereinbefore, we have no hesitation to hold that any suspicion irrespective of its degree cannot be a substitute to proof. In this case in the light of the facts obtained in this case, the only conclusion that can be arrived at is that the first respondent was authorised to drive the motor cycle and he was driving the said vehicle on the relevant date also on the strength of such licence which carried an authorisation in his favour to drive the motor cycle. In the light of the above discussion, the finding of the Tribunal that the first respondent drove the vehicle in question knowing fully that he got no licence and thereby contributed to the accident is set aside . At the same time, we maintain the finding of the Tribunal that the accident had occurred due to negligence of the first respondent. In the light of the said finding, the appellant in M.A.C.A.No.855/2012 is liable to succeed. 10. Now, we will consider the contentions raised by the appellant/claimant in M.A.C.A.No.2664/2012. As noticed hereinbefore, it is directed against the judgment in O.P.(V)No.59/2006 and the appellant seeks for enhancement of the quantum of compensation granted thereunder. In the light of our finding in M.A.C.A.No.855/2012 and in the light of the impugned judgment what survives for consideration in this appeal is only whether or not the appellant/claimant is entitled to get enhanced compensation. The main 14 M.A.C.A.Nos.855 & 2664 of 2012 grievance of the appellant is that the Tribunal had ignored the specific averments in the claim petition regarding the occupation and income of the appellant to the effect that he was working as an Auto Electrician and was earning Rs.4,500/- per month. Evidently, the Tribunal had declined to accept such contentions and fixed the monthly income notionally as Rs.3,000/-. According to the appellant it is fixed erroneously. 11. First of all, we will consider the question whether the fixation of the monthly income by the Tribunal invites interference. It is to be noted that the appellant had produced Ext.A9 which is described as certificate of competency . In Ext.A9, the certification is to the effect that the appellant/claimant successfully completed the course in Auto Electrician conducted from July 2002 – January 2003. But, at the same time, it is to be noted that despite taking up specific contention regarding his occupation and income, the appellant/claimant had not adduced any evidence to establish such contentions. But it is a fact that he was only aged 23 years on the date of the accident. To prove his age the appellant had produced Ext.A10 which is the copy of the Secondary School Leaving Certificate. The accident had occurred on 23.12.2005. There is nothing on record which would indicate that prior to the accident, he was a disabled person. In such circumstances, we 15 M.A.C.A.Nos.855 & 2664 of 2012 are of the view that for the purpose of fixing his income, the decision of the Honourable Apex Court in **Ramachandrappa v. Royal Sundaram Alliance Insurance Co. Ltd. ( 2011(13) SCC 236** can be taken for guidance. In that decision in respect of a coolie who met with an accident in the year 2004, the Apex Court fixed notionally his income as Rs.4,500/-. This accident in this case had occurred subsequently and at the time of the accident, the appellant was aged only 23 years. Therefore, we are of the view that the fixation of the monthly income at Rs.3,000/- is too low and in such circumstances, we are inclined to fix his monthly income as Rs.4,500/- for calculation purpose. In the said circumstances, if the amount payable to the appellant under the head disability is reassessed with the refixed monthly income, following the same formula, he will be entitled to get an amount of Rs.90,720/additionally. It is granted. 12. In the light of the refixed monthly income, the appellant is entitled to get a proportionate enhancement under the head loss of earnings. The Tribunal took the period as six months. For the same period, at the rate of Rs.4,500/- per month, the appellant would be entitled to get additionally an amount of Rs.9,000/-. The Tribunal had granted Rs.2,100/- towards bystander's expenses. Evidently, it was @ Rs.100/- per day that the said amount was granted. 16 M.A.C.A.Nos.855 & 2664 of 2012 Indisputably, the appellant had been inpatient for a period of 21 days. Taking into account the year of the accident, the rate of bystander's expenses per day ought to have been taken as Rs.200/-. In that view of the matter, the appellant is entitled to get Rs.2,100/- more. 13. Towards transportation expenses, the Tribunal had granted only an amount of Rs.500/-. The nature of the injuries and the treatment underwent by the appellant would reveal that even after his initial admission and discharge he had subsequent visits to the hospital. In such circumstances, we are inclined to grant Rs.1500/- more towards transportation expenses. Towards damage to clothing, no amount was granted by the Tribunal. The nature of the injury would undoubtedly indicate that the dresses worn by him on that day must have been damaged. In such circumstances, we are granting an amount of Rs.1,000/- under that head. Towards loss of amenities as also under the head compensation for loss of marriage prospects, the appellant had claimed Rs.30,000/- and Rs.25,000/- respectively, the Tribunal did not grant any amount. Relying on Exts.A11, A12 and A13 disability certificates, evidently the Tribunal had assessed the permanent disability of the appellant as 28%. Taking note of the nature of the injuries that constrained the Tribunal to make such an assessment, we are of the view that there is absolutely no justification 17 M.A.C.A.Nos.855 & 2664 of 2012 for denying the claim of the appellant under the heads loss of amenities as also loss of marriage prospects. In that context, it is to be noted that he was aged only 23 years at the time of the accident. In such circumstances, we are inclined to grant Rs.25,000/- towards loss of amenities and Rs.15,000/- under the head loss of marriage prospects. 14. In the light of the aforesaid discussion, the appellant is entitled to get a total additional compensation of Rs.1,44,320/-. It is awarded. The said enhanced amount will carry interest @ 8% per annum from the date of petition till realization. The second respondent is directed to deposit the enhanced amount with interest within a period of two months from the date of receipt of a copy of this judgment. The appeals are allowed as above. There will be no order as to costs in both the appeals. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **K.P.JYOTHINDRANATH Judge** TKS // true copy // Sd/P.S. To Judge