Kunjoyi v. Anandan; P.K. Sudhakaran; United India Insurance Co. Ltd. (MACA Nos. 2977 of 2014 & 1059 of 2015)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 7TH DAY OF JUNE 2016/17TH JYAISHTA, 1938** **MACA.No.2977 of 2014 ()** **-------------------------------AGAINST THE AWARD IN OPMV 1384/2012 of M.A.C.T., KOZHIKODE, DATED 28-01-2014.** ## **APPELLANT(S)/PETITIONER:** **-----------------------** **KUNJOYI, AGED 72 YEARS, S/O.UNNEERIKUTTY,POONARE VEETTIL HOUSE, NORTH BEYPORE, KOZHIKODE.** **BY ADV. SRI.P.V.KUNHIKRISHNAN** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------** **1. ANANDAN, THARAMMAL POTTA, RAMANATTUKARA, KOZHIKODE-673 633.** **2. P.K.SUDHAKARAN,** - **S/O.KRISHNANKUTTY,PLACHIKATTIL HOUSE, P.O.JELLIPARA, KALLAMALA VILLAGE, AGALY PANCHAYATH, MANNARKKADU, PALAKKAD, KERALA-678 582.** **3. M/S.UNITED INDIA INSURANCE CO.LTD, KALLAI ROAD,KOZHIKODE-673 302.** **R3 BY ADV. SRI.UNNI. K.K. (EZHUMATTOOR)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ss ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ.** -------------------------------------------------------------------- ## **M.A.C.A. Nos.2977 of 2014 & 1059 of 2015** -------------------------------------------------------------Dated this the 7[th] day of June, 2016 ## **JUDGMENT** ## **K.RAMAKRISHNAN, J** M.A.C.A.No.2977 of 2014 was filed by the claimant in O.P.(M.V.) No.1384 of 2012 on the file of the Motor Accidents Claims Tribunal, Kozhikode is the appellant in that appeal, while M.A.C.A.No.1059/2015 was filed by respondents 1 and 2 in the same case. For the purpose of convenience, we are referring the status of the parties as stated in the court below. 2. The claimant filed the above claim petition claiming compensation for the injuries sustained by him in a motor vehicle accident occurred on 26.11.2010. According to him, on that day at about 5.30 p.m. while he was standing in front of Vijaya Medical shop at Arakkinar, a Piaggio Ape autorickshaw with No.KL-12A/8680, driven by second respondent, owned by the first respondent and insured with the third respondent came at high speed and in a negligent manner and hit against the claimant, who was standing on the side of the road. Due to the impact, he was thrown away and sustained severe injuries. According to him the accident occurred due to the negligent driving of ## _**M.A.C.A. Nos.2977 of 2014 & 1059 of 2015**_ ## 2 the autorickshaw by second respondent and respondents 1 to 3 are jointly and severally liable to pay the compensation. He was aged 70 years and a worker in saw mill engaged for collecting saw dust and getting a monthly income of 9,500/- per month. On account of the₹ injuries, he suffered permanent disability which disabled from doing his work. He claimed a total compensation of 3,12,000/- on various₹ heads but restricted his claim to 1,00,000/-.₹ 3. Respondents 1 and 2 remained absent and ex-parte. 4. Third respondent entered appearance and filed statement admitting the insurance of the autorickshaw but they denied the allegation that the accident occurred due to the negligence of the second respondent. They have also contended that the second respondent was not holding any valid driving licence at the time of the accident and as such they are not liable to indemnify the insured. They denied the income, age, occupation, disability etc. claimed by the claimant. According to them the total compensation claimed is also exorbitant and they prayed for dismissal of the application. 5. No oral evidence was adduced on either side. Ext.A1 to A7 series were marked on the side of the petitioner. After considering the evidence on record, the tribunal found that the accident occurred due to the negligent driving of the autorickshaw by the second respondent _**M.A.C.A. Nos.2977 of 2014 & 1059 of 2015**_ 3 and found that as per Ext.A3 final report the driver of the vehicle was charge-sheeted for driving the vehicle without driving licence under section 3(1) read with section 181 of the Motor Vehicles Act along with offences punishable under section 279, 337 and 338 of the Indian Penal Code. So the tribunal held that he had no driving licence and directed the insurance company to pay the amount with right of recovery of the amount so paid from the respondents 1 and 2. The tribunal awarded a total compensation of 64,938/- on various heads₹ as follows: |**_Heads_**|**_Amount_**| |---|---| |Loss of earnings|₹6,000/-| |Transport to hospital|₹500/-| |Damage to clothing and articles|₹500/-| |Extra nourishment|₹1,000/-| |Bystanders expenses|₹1,000/-| |Treatment expenses|₹35,938/-| |Pain and sufferings|₹15,000/-| |Loss of amenities in life|₹5,000/-| |Total|₹64,938/-| Dissatisfied with the quantum of compensation awarded, the claimants filed M.A.C.A.No.2977/2014 and dissatisfied with the direction of recovery of the amount, the owner and driver/respondents 1 and 2 filed M.A.C.A.No.1059/2015. Since both these appeals arose from the same award, we are disposing both the appeals by a common judgment. 6. Heard Sri.Anish Gurudas, counsel representing Sri.P.V.Kunhikrishnan, counsel appearing for the appellant in ## _**M.A.C.A. Nos.2977 of 2014 & 1059 of 2015**_ ## 4 M.A.C.A.No.2977 of 2014 and first respondent in M.A.C.A.No. 1059/2015 and claimant before the court below and Smt.Bimala Baby, counsel appearing for the appellant in M.A.C.A.No.1059/2015 and respondents 1 and 2 in M.A.C.A.No.2977 of 2014 and Sri.P.Sankarankutty Nair, counsel appearing for the insurance company in both the cases. 7. The counsel for the owner and driver of the vehicle submitted that, the driver was having driving licence to drive the vehicle. He had produced the same along with I.A.No.2909/2015 which will go to show that he is having driving licence to drive the autorickshaw at the relevant time. So the finding of the tribunal that the insurance company is entitled to recover the amount under section 149(4) is unsustainable in law. They also contended that the amount awarded is excessive. 8. On the other hand, the counsel for the insurance company submitted that he had no badge to drive the vehicle at the relevant time and he is not having the requisite licence authorising him to drive autorickshaw at the relevant time and as such there is violation of policy conditions and they are entitled to recover the amount from the owner and driver. They also contended that the claimant is not entitled to get enhanced compensation. ## _**M.A.C.A. Nos.2977 of 2014 & 1059 of 2015**_ ## 5 9. The counsel for the claimants submitted that the tribunal has not properly appreciated the evidence and the amount awarded under various heads are very low considering the nature of injury sustained and he is entitled to get enhancement on all heads. 10. Since the question regarding negligence is not in dispute, we are not going into that aspect in these appeals. The owner of the vehicle had produced the driving licence of the second respondent along with I.A.No.2909/2015, this court allowed the application and the original was verified with the photostat copy produced and we are marking the photostat copy of the driving licence produced as Ext.B1 in M.A.C.A.No.1059/2015. It is seen from Ext.B1 that he is having driving licence to drive autorickshaw and that licence was issued to him on 5.2.2009. So as on the date of accident namely 26.11.2010, he was having driving licence to drive autorickshaw. It is true that he is not having requisite badge to drive that description of vehicle. The question whether non possession of badge will exonerate the insurance company from liability or whether it will give them the right to recover the amount awarded under section 149(4) of the Motor Vehicles Act has been considered by the Full Bench of this court in _**National Insurance Company Ltd., v. Jisha**_ (2015(1) KLT 1), where it has been held that, omission to apply for to obtain badge is purely 6 ## _**M.A.C.A. Nos.2977 of 2014 & 1059 of 2015**_ technical and cannot be said to be a fundamental breach. As far as the proficiency of driving the vehicle is concerned, what is important is to obtain a driving licence under the relevant rules. Further it has been held in the same decision, relying on the decision reported in _**Iyyappan v. United India Insurance Company Ltd.,**_ (2013(3) KLT (SN) 32 Case No.33) that, it is for the insurance company to establish that the breach was so fundamental in causing the accident and if it is not done, there cannot be any automatic direction in allowing the insurance company to recover the amount from the owner also. In this case, there is no evidence adduced on the side of the insurance company to prove that it was a fundamental breach which resulted in the cause of accident. So under such circumstances, the finding of the tribunal that the insurance company is entitled to recover the amount from respondents 1 and 2 is unsustainable in law and the same is liable to be set aside and we do so. Thereby the appeal filed by the appellants/respondents 1 and 2 is allowed setting aside the liability given to the insurance company to recover the amount from the owner of the vehicle. 11. As regards the quantum of compensation is concerned, the case of the claimant in the claim petition was that he was aged 70 years and working in a saw mill as collector of saw dust and getting a 7 ## _**M.A.C.A. Nos.2977 of 2014 & 1059 of 2015**_ monthly income of 9,500/-, but unfortunately he had not adduced₹ any evidence to prove this fact. The court below had taken only ₹3,000/- as his monthly income, which appears to be on the lower side considering the fact that even in the year 1994 the legislature had taken 15,000/- per annum as notional income for a non-earning₹ person and the accident in this case occurred in the year 2011, So we take the notional income of the petitioner as 4,000/- per month. ₹ 12. It is seen from the medical documents produced namely, Exts.A2 and A6 that he sustained trochantur fracture to right femur with lacerated wound on scalp, abrasion on right ankle and injury to right hip. He was first taken to Koya's Hospital, Cheruvannoor from where he was referred to PVS Hospital, Kozhikode on the same day for expert treatment, where he was admitted on 26.11.2010 and discharged on 29.11.2010 and he had undergone operation and implant fixation for the fracture was done. Thereafter he came back to Koya's Hospital on 29.11.2010 and re-admitted there and discharged on 6.12.2010. Considering the nature of injury sustained, he could not have worked for at least five months, instead of two months as taken by the tribunal. If taking his monthly income as 4,000/- and period of₹ treatment five months, he will be entitled to get an amount of ₹20,000/- under the head loss of earning during the period of 8 ## _**M.A.C.A. Nos.2977 of 2014 & 1059 of 2015**_ treatment, instead of 6,000/- awarded by the tribunal, thereby he will₹ be entitled to get an additional amount of 14,000/- under that head. ₹ 13. The tribunal has awarded only 15,000/- under the head₹ pain and suffering. Considering the nature of injury sustained and the period of treatment and nature of treatment undergone, the amount awarded under the head appears to be on the lower side and we enhance the same to 30,000/-, thereby he will be entitled to get an₹ additional amount of 15,000/- under that head. He had suffered₹ trochanter fracture of right femur. He was aged 70 years. So there is no possibility of reunion of fracture and thereby it may have some impact on his personal life. He will have to live with that discomfort for the remaining period of his life. Though he had not produced any document to show that it resulted in occupational disability or permanent disability, he is entitled to get a reasonable amount under the head loss of amenities in life. The amount of 5,000/- awarded₹ under that head appears to be on the lower side and we enhance the same to 25,000/-, thereby he will be entitled to get an additional₹ amount of 20,000/- more under that head. ₹ 14. The tribunal has taken only four days for awarding compensation under the head bystanders expenses, but Ext.A2 wound certificate will go to show that he was admitted in that hospital on 9 ## _**M.A.C.A. Nos.2977 of 2014 & 1059 of 2015**_ 26.11.2010 and on the same day he was referred to PVS Hospital where he was treated as inpatient from 26.11.2010 to 29.11.2010 and thereafter he was re-admitted in Koya's Hospital on 29.11.2010 and discharged on 6.12.2010. So he was treated as inpatient in two hospitals for ten days. So he is entitled to get an additional amount of ₹1,500/- more under the head bystanders expenses at the rate of ₹250/- per day as taken by the tribunal. We are not inclined to award any amount under other heads as the amounts awarded by the tribunal under other heads appear to be just and proper. So the appellant will be entitled to get an additional compensation of ₹50,500/- over and above the compensation awarded by the tribunal, which the third respondent insurance company is liable to pay with 9% interest from the date of petition, till date of payment. The finding of the court below that the insurance company is entitled to recover the amount from the respondents 1 and 2 is set aside and vacated and respondents 1 and 2 are exonerated from the liability as third respondent being the insurer is liable to indemnify the insured. Three months time is granted to the insurance company to deposit the amount. If the amount is deposited, petitioner is permitted to withdraw the amount. The amount of 25,000/- deposited by the appellants in₹ M.A.C.A.No.1059 of 2015 as condition for filing the appeal under 10 ## _**M.A.C.A. Nos.2977 of 2014 & 1059 of 2015**_ section 173 of the Motor Vehicles Act is directed to be refunded to them. If any amount has been recovered from respondents 1 and 2 by the third respondent, then third respondent insurance company is directed to return the amount if any so recovered from them. With the above modification of the impugned award passed M.A.C.A.No.1059 of 2015 is allowed and M.A.C.A.No.2977 of 2014 is allowed in part and disposed of accordingly. _Sd/-_ ## **( P.N. Ravindran, Judge)** _Sd/-_ ## **(K. Ramakrishnan, Judge)** //True Copy// P.A. to Judge ss