LOHITHAKSHAN v. Omana Devassykutty & Ors. (MACA No. 1565 of 2010)

**MACA NO. 1565 OF 2010** **1** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 16[TH] DAY OF SEPTEMBER 2021 / 25TH BHADRA, 1943 MACA NO. 1565 OF 2010** **AGAINST THE JUDGMENT IN OP(MV) 2300/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,THRISSUR** ## **APPELLANT/PETITIONER:** LOHITHAKSHAN, S/O.VELAYUDHAN, NEDUMPULLY HOUSE, PALLIKUNNU, KIZHAKKEPALLY, P.O.KALLOOR,, THRISSUR DISTRICT. BY ADV SRI.P.V.CHANDRA MOHAN ## **RESPONDENTS/RESPONDENTS:** 1 OMANA DEVASSYKUTTY, W/O.DEVASSYKUTTY, KUNNATH PARAMBIL HOUSE, ALANGAD, MUTTITHADY P.O.VIA.KALLOOR, THRISSUR DISTRICT -680 302. 2 T.R.RADHAKRISHNAN S/O.RAGHAVAN THAIPARAMBIL HOUSE, ALANGAD P.O., MUTTITHADY, THRISSUR DISTRICT-678 637. 3 UNITED INDIA INSURANCE CO.LTD. JOSE TRUST BUILDING, OPP.Y.M.C.A.,, CHITTOOR ROAD, ERNAKULAM, COCHIN-682 018. BY ADV SRI.T.V.AJAYAKUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1565 OF 2010** **2** ## **JUDGMENT** The appellant was the petitioner in O.P. (MV) No.2300/2003 on the file of the Motor Accidents Claims Tribunal, Thrissur. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act,1988 (for brevity referred to as ‘the Act’), claiming compensation on account of the injuries that he sustained on 12.9.2002. It was his case that, while he was accompanying with bananas in a Tempo Van bearing Reg. No.KL-8/T 6986 (Van) through Kovayai main road from the south of Coimbatore, the 2[nd] respondent drew the van in a rash and negligent manner and at high speed and when they reached a place near **MACA NO. 1565 OF 2010** **3** Vayapuri Nagar, the 2[nd] respondent suddenly swerved the van towards the right side and hit against a lorry bearing Reg. No.TNC – 4371. In the accident, the appellant sustained serious injuries, including fracture of his lateral condyle left tibia , fracture of his right middle finger and multiple bodily injuries. He was taken to the Coimbatore hospital and, thereafter, was shifted to the Metropolitan Hospital, Thrissur, where he was treated as an inpatient . The accident occurred solely due to the negligence of the 2[nd] respondent. The appellant sustained severe pain and sufferings. The van belonged to the 1[st] respondent and was insured with the 3[rd] respondent. The appellant was doing business in sale of bananas at Thrissur and was earning a monthly income of Rs.8,000/-. The appellant claimed a compensation of Rs.2,33,500/- from the respondents. 3. The respondent Nos.1 and 2 entered appearance, but did not file any written statement. 4. The third respondent – insurer had filed a written **MACA NO. 1565 OF 2010** **4** statement refuting the allegations in the claim petition. Nevertheless, the 3[rd] respondent admitted that the van had a valid insurance coverage. It was contended that the appellant was a gratuitous passenger in the van and no additional premium was collected to cover a gratuitous passenger. Therefore, the 3[rd] respondent was not liable to indemnify the 1[st] respondent of his liability arising out of the accident. Hence the 3[rd] respondent prayed that the claim petition be dismissed. 5. The appellant examined himself as PW1 and marked Exts.A1 to A9 in evidence. The 3[rd] respondent produced a copy of the insurance policy and marked it as Ext.B1 in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellant to realise from the respondents 1 and 2 an amount of Rs.65,600/- with interest at the rate of 8% per annum from the date of petition till the date of **MACA NO. 1565 OF 2010** **5** realistion and proportionate costs. The 3[rd] respondent was exonerated of any liability. 7. Aggrieved by the exoneration of the 3[rd] respondent and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.P.V.Chandramohan, the learned counsel appearing for the appellant/petitioner and Sri.T.V.Ajayakumar, the learned counsel appearing for the 3[rd] respondent /insurer. 9. The questions that emerge for consideration in this appeal are : (i) Whether the exoneration of the 3[rd] respondent is justifiable or not? (ii) Whether the quantum of compensation awarded by the Tribunal is reasonable and just? 10. The specific case of the appellant in the claim **MACA NO. 1565 OF 2010** **6** petition was that he had gone to Coimbatore for the purchase of bananas as he was a banana merchant at Thrissur. He has pleaded in coloumn No. 28 of the claim petition that, on 12.9.2002, while he was accompanying the bananas in the van from Coimbatore to Thrissur and when the van reached Vayapuri Nagar, the van hit on the lorry due to the negligent driving of the van by the 2[nd] respondent. The appellant examined himself as PW1 and gave evidence to prove the averments in the claim petition and Exts.A1 to A9. 11. The appellant proved Exts.A1 F.IR, A3 Scene Mahazar, A4 AMVI report and A5 charge-sheet to establish his assertions in the claim petition. 12. The 3[rd] respondent took up the defence in the written statement that the appellant was a gratuitous passenger travelling in the van. Hence, as Ext.B1 is only an ‘Act Policy’, the 3[rd] respondent should be absolved of any liability as Ext.B1 does not cover a gratuitous passenger. **MACA NO. 1565 OF 2010** **7** 13. The Tribunal, on the basis of the assertion in the above written statement, absolved the 3[rd] respondent of its liability. 14. It is to be remembered that a claim under Section 166 of the Act is to be decided on the principles of preponderance of probability and not on the principles of beyond reasonable doubt. 15. Going by the pleadings and materials on record and the oral testimony of PW1 there is a ring of truth in the version of the appellant that he had gone to Coimbatore to purchase bananas, and he purchased the same and returned with the goods in the van as the owner of the goods from Coimbatore to Thrissur. I do not find any reason to disbelieve the pleadings and materials which stand corroborated with the oral testimony of PW1 - the appellant. 16. Section 147 (1) (b)(i) of the Motor Vehicles Act **MACA NO. 1565 OF 2010** **8** specifically covers the liability of the insurer in respect of owner of the goods or its authorised representative carried in the vehicle. 17. The 3[rd] respondent does not have a case that the appellant did not travel in the van, as is evidenced from Ext.A1 FIR, A3 scene mahazar and A5 charge-sheet. It has only taken up a contention that the appellant was a gratuitous passenger. If the 3[rd] respondent had such a case, it was the imperative for the 3[rd] respondent to let in evidence and disprove the assertions in the claim petition, which has not been done. Mere pleading is not proof. Even though the appellant was cross-examined, nothing has been brought out to discredit the oral testimony of the appellant. 18. In such circumstances, I am of the considered opinion that the finding of the Tribunal that the appellant was a gratuitous passenger is erroneous and wrong. Therefore, I set aside the said finding and hold that the appellant who was the owner of the goods transported in **MACA NO. 1565 OF 2010** **9** the van, falls within the purview of Section 147 (1)(b)(i)of the Act. Hence the 3rd respondent is to indemnify the liability of the 1[st] respondent – the owner of the van and pay the compensation amount to the appellant. Question No.(i) is answered in favour of the appellant. ## **- Question No.(ii) Negligence** 19. As per Ext.A5 charge-sheet filed by the Kovilpalayam Police in Crime No.129/2002, it is proved that the accident was caused due to the negligence of the 2[nd] respondent. Undisputedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the van. Even though the 3[rd] respondent had taken up a contention that the appellant was a gratuitous passenger, it did not have a case that the 2[nd] respondent had violated any policy conditions. In view of my findings on question No.(i), I hold that the 3[rd] respondent is liable to indemnify the liability of the 1[st] respondent arising out of the accident. **MACA NO. 1565 OF 2010** **10** ## **Notional income** 20. The appellant had claimed that he was a Banana Merchant doing business at Thrissur. Although he claimed that he was earning a monthly income of Rs.8,000/-, he did not produce any material to prove his income. 21. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236] the Hon’ble Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 22. Following the benchmark in the afore-cited decision and keeping in mind the fact that the accident occurred in the year 2002, I am of the opinion that the notional income of the appellant can safely fixed at Rs.3,500/- per month. Hence, I re-fix the notional income of the appellant at Rs.3,500/- per month. ## **Loss of earnings** 23. The appellant had suffered a fracture of his lateral condyle left tibia , fracture of his right middle finger and **MACA NO. 1565 OF 2010** **11** multiple bodily injuries. He was treated as an inpatient at the Metropolitan Hospital, Thrissur for a period of 11 days. The Doctor has certified that the appellant has suffered a permanent disability of 14.5% as per Ext.A7. In the above circumstances, I hold that the appellant was indisposed for a period of four months. 24. In view of the re-fixation of the notional income of the appellant at Rs.3,500/- per month, I hold that the appellant is entitled for loss of earnings at Rs.14,000/instead of Rs.7,500/- awarded by the Tribunal. ## **Loss due to disability** 25. The appellant had marked Ext.A7 disability certificate which shows that the appellant has a permanent disability of 14.5%. The Tribunal fixed the disability of the appellant at 3%. 26. In **Rajkumar v. Ajaykumar** [2011 (1) KLT 620 SC], the Hon'ble Supreme Court has held that in the case of injury, what has to be looked into by the Tribunals/Courts is the functional disability of an injured. **MACA NO. 1565 OF 2010** **12** 27. The Doctor who issued Ext.A7 has stated that the appellant has 4% mal union, 3% secondary osteo arthritis, 2% loss of power, 4% left knee stiffness and 2% finger stiffness, totalling to 14.5.% (15). 28. Following the ratio in **Rajkumar** (supra) and considering that the appellant was a banana merchant by profession, I am of the opinion that only the 4% disability for the mal union, 2% for the loss of power and 4% of the left knee stiffness can be taken into account to fix the functional disability which amounts to 10%. Accordingly, I re-fix the functional disability of the appellant at 10%. 29. Taking into account the above mentioned factors, namely, the monthly income of the appellant at Rs.3,500/-, the multiplier at '15', and the disability at 10% , I re-fix the compensation for loss due to disability at Rs.63,000/-, instead of Rs.13,500/- fixed by the Tribunal. **MACA NO. 1565 OF 2010** **13** ## **Loss of amenities** 30. Since the appellant has sustained 10% disability and the Tribunal not awarding any compensation under the head ‘loss of amenities’, I hold that the appellant is entitled for compensation under the above said head at Rs.10,000/-., 31. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 32. On an overall re-appreciation of the pleadings and materials on record and the law laid down in the afore-cited decisions, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. **MACA NO. 1565 OF 2010** **14** **==> picture [463 x 435] intentionally omitted <==** **----- Start of picture text -----**<br> SI Head of claim Amount awarded by Amounts<br>the Tribunal (in modified and<br>.No rupees) recalculated by<br>this Court<br>1 Loss of earnings 7,500 14,000<br>2. Transportation expenses 3,000 3,000<br>3. Extra-nourishment 1,500 1,500<br>4. Damage to clothing 500 5,00<br>5. Medical Expenses 19,600 19,600<br>6. Bystander expenses 2,000 2,000<br>7. Pain and suffering 18,000 18,000<br>--<br>8. Loss of amenities 10,000<br>9. Loss due to disability 13,500 63,000<br>Total 65,600 1,31,600<br>======= ======<br>**----- End of picture text -----**<br> In the result, the appeal is allowed by holding that the entire compensation amount re-fixed above has to be paid by the 3[rd] respondent- insurer instead of the respondents 1 and 2. Accordingly, the 3[rd] respondent is ordered to pay **MACA NO. 1565 OF 2010** **15** the appellant a total compensation of Rs.1,31,600/- with interest at the rate of 7% per annum from the date of petition till the date of deposit and a cost of Rs.4,000/-, within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the compensation amount to the appellant/petitioner, provided that he has not received any amount from the respondents 1 and 2 pursuant to the impugned award, and in accordance with law. In case, the respondents 1 and 2 have already deposited any amount pursuant to the impugned award , the same shall be returned to them by the Tribunal. All pending interlocutory applications will stand closed. ma/17.9.2021 Sd/- **C.S.DIAS, JUDGE** /True copy/