K. C. Alikunhi Hajee v. P. K. Devadas Lal and Oriental Insurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 16TH DAY OF AUGUST 2017/25TH SRAVANA, 1939 MACA.No. 43 of 2009 ( ) -----------------------AGAINST THE AWARD IN OPMV 2406/2003 of PRINCIPAL M.A.C.T.,KOZHIKODE DATED 22-04-2008 APPELLANT(S)/PETITIONER:: ------------------------ K.C.ALIKUNHI HAJEE, AGED 61 YEARS, S/O.CHERIYA AHAMMED HAJEE, ZAREENA MANZIL, POST MANIPURAM, KODUVALLY, KOZHIKODE. ## BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S)/RESPONDENTS:: --------------------------- ## 1. P.K.DEVADAS LAL, S/O.PERACHAN, MANNANGAL HOUSE, P.O.PARAMBIL BAZAR, KOZHIKODE. 2. ORIENTAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE, NO.1, SEEMA BUILDINGS, IIND FLOOR, G.M.ROAD, KOZHIKODE. R1 BY ADV. SRI.R.O.MUHAMED SHEMEEM R2 BY ADV. SRI GEORGE CHERIAN THIRUVALLA(BY ORDER) R2 BY ADV. DR.ELIZABETH VARKEY R2 BY SRI GEORGE CHERIAN THIRUVALLA(BY ORDER) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. ========================== M.A.C.A. No.43 OF 2009 ==========================** Dated this the 16[th] day of August, 2017 ## **JUDGMENT** Anil K. Narendran, J. This appeal arises out of the award passed by the Principal Motor Accidents Claims Tribunal, Kozhikode in O.P.(MV) No.2406 of 2003, a claim petition filed by the appellant/claimant under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the injuries sustained in a motor accident which occurred on 12.1.2003 while he was riding his scooter bearing Reg.No.KL11/F-9078. At the place of accident, a car bearing Reg.No.KL-11/Q8202 owned by the first respondent and insured with the second respondent hit the scooter, as a result of which the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the car by its driver, claim petition was filed **M.A.C.A.No.43/2009** 2 before the Tribunal claiming a total compensation of Rs.2,50,000/under different heads. Originally, the registration number of the offending vehicle was shown as KL-11/M-2206 which was later corrected as KL-11/Q-8202, as per the order of the Tribunal in I.A.No.3052 of 2004. 2. Before the Tribunal, the second respondent insurer filed written statement contending that at the relevant time, vehicle bearing Reg.No.KL-11/Q-8202 was issued only a cover note bearing No.528841 on accepting a cheque for Rs.6,975/- towards insurance premium, on 26.12.2002. The said cover note was issued subject to the condition that it would be valid subject to realisation of the cheque amount. The said cheque presented for encashment was dishnoured by the bank on 13.1.2003. Immediately thereafter, the second respondent insurer sent registered letter to the first respondent owner informing the dishonour of the cheque and cancellation of the policy and the cover note. Thereafter, the first respondent owner has taken policy for the said vehicle for the period from 22.1.2003 to 21.1.2004 **M.A.C.A.No.43/2009** 3 by remitting the premium amount in cash. Since the period of the said policy would not cover the date of accident, the second respondent insurer contended that it is not liable to indemnify the first respondent owner. 3. Before the Tribunal, Ext.A1 wound certificate and Ext.A2 discharge card were marked on the side of the appellant/claimant. On the side of the respondents, a copy of the insurance policy was marked as Ext.B1. Ext.B2 is a receipt dated 26.12.2002 for a sum of Rs.6,975/- towards insurance premium. Ext.B3 is a memo dated 6.1.2003 of the State Bank of Travancore, Kozhikode Palayam Branch regarding dishonour of Ext.B4 cheque and Ext.B5 is the letter dated 13.1.2003 sent by the second respondent insurer to the first respondent owner intimating the dishonour of the cheque. Both sides have not chosen to adduce any oral evidence. 4. After considering the materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the car by its driver. Regarding the liability of the **M.A.C.A.No.43/2009** 4 second respondent insurer to indemnify the first respondent owner, the Tribunal, relying on the judgment of the Apex Court in **New India Assurance Company Ltd. v. Sreju (2001 (3) KLT 296)** , held that there was no valid policy on the date of accident on account of the dishonour of the cheque and as such, the second respondent insurer has no liability to indemnify the first respondent owner. Therefore, the compensation, if any, payable to the appellant/claimant has to be paid by the first respondent owner and as such, the second respondent insurer cannot be saddled with the said liability. 5. Under different heads, the Tribunal awarded a total compensation of Rs.16,500/- and directed the first respondent owner to remit the said amount before the Tribunal together with interest at the rate of 7.5% per annum from the date of petition, i.e., 25.9.2003 till deposit. 6. Feeling aggrieved by the award passed by the Tribunal to the extent of exonerating the second respondent insurer from the liability to pay the compensation awarded and also challenging the quantum of **M.A.C.A.No.43/2009** 5 compensation, the appellant/claimant is before this Court in this appeal. 7. We heard the learned counsel for the appellant/claimant and also the learned counsel for the second respondent insurer. 8. Firstly, we shall deal with the question as to whether the Tribunal was justified in exonerating the second respondent insurer from the liability to pay the amount of compensation awarded to the appellant/claimant. 9. The pleadings and materials on record would show that the first respondent owner had paid a sum of Rs.6,975/- towards premium for the insurance policy on 26.12.2002, which is borne out from Ext.B4 cheque as well as Ext.B2 receipt issued by the second respondent insurer. As is evident from Ext.B3 cheque return memo issued by the State Bank of Travancore, Kozhikode Palayam Branch, Ext.B4 cheque was dishonoured on 6.1.2003 based on which Ext.B5 intimation dated 13.1.2003 was issued to the first respondent owner. Admittedly, the accident occurred on 12.1.2003, prior to Ext.B5 **M.A.C.A.No.43/2009** 6 intimation being given to the first respondent owner regarding dishonour of Ext.B4 cheque. 10. In **Oriental Insurance Company Ltd. v. Raveendran (2015 (2) KLT 958),** a Division Bench of this Court held that the liability under Section 147 Motor Vehicles Act to the third party and the operation of Section 149 qua Section 147 of the Act would become relevant as regards liabilities only when there is a contract of insurance and such liability would have to be met only if the contract is valid. If the contract of insurance has been cancelled and such cancellation has been duly intimated as required, the insurance company would not be liable to satisfy the claim. Paragraph 5 of the said judgment reads thus:- “5.The aforesaid being the factual position, we revert to the legal issue involved on the proved facts. Ss.147 and 149 of the Act, have their play only on the basis of a concluded contract of insurance. That is a contract based on reciprocal promises. The normal regular rules governing general contract would first apply in relation to the formation of such a contract of insurance. As noted by the Honourable Supreme Court of India in Deddappa v. National Insurance Co.Ltd. (2008 (1) KLT 296 (SC), cited by the learned senior counsel for the **M.A.C.A.No.43/2009** 7 appellant, the reciprocal promises by the parties, are condition precedent for a valid contract and the distinction between the statutory liability of the Insurance Company vis-a-vis a third party in the context of Ss.147 and 149 of the Act and its liability in other cases, would not be relevant when the contract is invalid. The liability under S.147 of the Act to the third party and the operation of S.149 qua S.147 of the Act would become relevant as regards liabilities only when there is a contract of insurance and such liability would have to be met only if the contract is valid. If the contract of insurance has been cancelled and such cancellation has been duly intimated as required, the Insurance Company would not be liable to satisfy the claim. Though there was some argument on the concept of the phraseology “all concerned”, in the said precedent, we are of the view that the person who would have to be intimated would be the person who had applied for insurance cover and may be the R.T.A. That having been done, we cannot accept the view of the learned Tribunal that intimation is that, as in the case in hand, if we are to say that the insurer will have to intimate the police authorities, we can easily conceive that it is impossible, since a stage carriage would be plying through different areas under the jurisdiction of different police authorities. The purpose is to intimate the person eligible to be covered under the insurance policy in the event of the existence of a valid contract of insurance and a subsequent third party liability arising in terms of Ss.147 and 149 of the Act. We see nothing more.” 11. In the instant case, the intimation regarding cancellation of **M.A.C.A.No.43/2009** 8 policy has been issued to the first respondent owner only on 13.1.2003, admittedly after the accident which occurred on 12.1.2003. Though the second respondent insurer is liable to deposit the amount of compensation awarded by the Tribunal, it will be entitled to recover the said amount from the first respondent owner by initiating recovery proceedings. 12. In that view of the matter, we find no reason to sustain the finding of the Tribunal to the extent of exonerating the second respondent insurer from the liability to deposit the amount of compensation awarded to the appellant/claimant. However, it will be open to the second respondent insurer to recover the said amount from the first respondent owner by initiating appropriate recovery proceedings. 13. Now, we shall consider the question whether compensation awarded by the Tribunal under different heads requires any upward modification in this appeal. 14. The accident is of the year 2003 and at the time of accident, **M.A.C.A.No.43/2009** 9 the appellant/claimant was aged 56 years. He claimed a monthly income of Rs.6,000/- as a heavy vehicle driver. However, no reliable materials were produced before the Tribunal in order to prove the said claim. He has not chosen to mount the box. It was in the absence of any reliable materials that the Tribunal took the annual income of the appellant/claimant notionally at Rs.20,000/- for the purpose of assessment of compensation under different heads. 15. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** , the Apex Court notionally re-fixed the monthly income of a coolie, who met with a motor accident in the year 2004 at Rs.4,500/-. Considering the fact that in the instant case, the accident is of the year 2003 and at the time of accident, the appellant/claimant was an able bodied person aged 56 years, we deem it appropriate to re-fix his monthly income notionally at Rs.4,000/-, for the purpose of assessing compensation under different heads. **M.A.C.A.No.43/2009** 10 16. The injuries sustained by the appellant/claimant, as borne out from Ext.A1 wound certificate, are as follows:- “Fracture on middle phalanx of middle ring, little fingers, comminuted fracture of preximal phalanx of big toe, laceration and other soft tissue injuries.” As a result of the injuries sustained in the accident, he had undergone inpatient treatment for a period of ten days. 17. The compensation awarded by the Tribunal under different heads reads thus:- |**Name of head**|**Amount awarded**| |---|---| |Medical treatment|Rs.2000/-| |Incidental charges|Rs.2000/-| |Pain and suffering|Rs.7000/-| |Loss of amenity|Rs.2000/-| |Loss of income|Rs.3000/-| |Transportation|Rs.500/-| |**Total**|**Rs.16500/-**| 18. Towards medical expenses, the Tribunal awarded a sum of Rs.2,000/-. Before the Tribunal, the appellant could produce only photocopy of the medical bills. Even in the absence of any reliable materials, the Tribunal granted a sum of Rs.2,000/- under this head, **M.A.C.A.No.43/2009** 11 which represents just and reasonable compensation, which warrants no enhancement in this appeal. 19. Towards incidental charges, the Tribunal awarded a sum of Rs.2,000/-. Since the accident is of the year 2003 and the appellant/claimant had undergone inpatient treatment for a period of ten days, he is entitled for payment of bystanders expenses at the rate of Rs.150/- per day and that under the head extra nourishment at the rate of Rs.100/- per day, resulting an amount of Rs.1,500/- (150x10) under the head bystanders expenses and Rs.1,000/- (100x10) under the head extra nourishment. In the result, compensation under the head incidental charges is re-fixed as Rs.2,500/-, resulting an additional compensation of **Rs.500/-** . 20. Towards pain and suffering, the Tribunal awarded a sum of Rs.7,000/-. Considering the nature of injuries sustained and the treatment the appellant/claimant had undergone, as borne out from medical records, we deem it appropriate to re-fix the compensation under this head as Rs.10,000/-, resulting an additional compensation **M.A.C.A.No.43/2009** 12 ## of **Rs.3,000/-** . 21. Towards of loss of amenities, the Tribunal awarded a sum of Rs.2,000/-. Relying on a copy of the medical certificate dated 4.1.2003 produced along with I.A.No.2619 of 2013, the learned counsel for the appellant/claimant would submit that the appellant had sustained permanent disability of 40% out of the injuries sustained in the accident and as such, he should be compensated adequately under the head permanent disability. A perusal of the said interlocutory application would show that it is one filed under section 151 of the Civil Procedure Code, 1908. In an appeal filed under Section 173 Motor Vehicles Act, if the appellant wants to rely on certain additional documents, he is bound to comply with the mandate of Order XLI Rule 27 of the Code of Civil Procedure. Unless and until the conditions mandated by the said provision are fulfilled, the appellant is not entitled to rely on any such document. In the instant case, the additional document produced as Annexure-A in I.A.No.2619 of 2013 is a copy of the medical certificate dated 4.1.2003, which was very **M.A.C.A.No.43/2009** 13 much available with the appellant/claimant prior to the impugned award passed by the Tribunal. Having failed to produce the said certificate before the Tribunal, the appellant/claimant is not entitled to rely on such a document before this Court by filing an application under Section 151 of the Code. Since the appellant failed to prove any permanent disability on account of the injuries sustained in the accident, the Tribunal was justified in not awarding any compensation under the head permanent disability. However, considering the nature of injuries noted in Ext.A1 wound certificate and the disability that may arise therefrom, we deem it appropriate to re-fix the compensation awarded by the Tribunal under the head loss of amenities as Rs.10,000/-, resulting an additional compensation of **Rs.8,000/-** . 22. Towards loss of income, the Tribunal awarded a sum of Rs.3,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, the Tribunal was justified in awarding loss of earning for a period of two months. Since we have **M.A.C.A.No.43/2009** 14 already re-fixed the monthly income of the appellant/claimant as Rs.4,000/-, compensation under this head is re-worked as Rs.8,000/(4000x2), resulting an additional compensation of **Rs.5,000/-** . 23. Towards transportation expenses, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2003, we deem it appropriate to re-fix the compensation under this head as Rs.750/-, resulting an additional compensation of **Rs.250/-** . 24. No amount has been awarded by the Tribunal under the head damage to clothing. Considering the fact that the accident is of the year 2003, we deem it appropriate to grant a sum of **Rs.750/-** under this head. In the result, the appellant/claimant will be entitled for an additional compensation of **Rs.17,500/-** (500+3,000+8,000+5,000+250+750) in this appeal, which will carry interest at the rate of 8% per annum from the date of the petition till realisation. The second respondent insurer shall deposit the compensation originally awarded by the Tribunal with rate of interest **M.A.C.A.No.43/2009** 15 awarded by the Tribunal and also the additional compensation granted in this appeal within two months from the date of receipt of a certified copy of this judgment. 25. It will be open to the second respondent insurer to recover the said amount from the first respondent owner by initiating appropriate recovery proceedings. Appeal is disposed of. No order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **ANIL K. NARENDRAN (JUDGE)** **spc/**