MACA 1639/2012; MACA 2585/2012; MACA 1813/2012 (Sukumaran S/o Late Kutty; K.M. Ponni S/o Madhavan) v. Oriental Insurance Co. Ltd.; The New India Assurance Co. Ltd.; Krishnankutty; Valsala; Sandhya; Soumya; and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **TUESDAY ,THE 09TH DAY OF OCTOBER 2018 / 17TH ASWINA, 1940** ## **MACA.No. 1639 of 2012** **AGAINST THE AWARD IN OPMV 3850/2003 of SPL.COURT FOR EC ACT CASES &MACT,TSR DATED 22-03-2012** ## **APPELLANT/S:** **SUKUMARAN S/O. LATE KUTTY, KOLLAMATTAM HOUSE, THEKKUMPADAM, P.O. PATTIKKAD, THRISSUR DISTRICT.** **BY ADV. SRI.P.V.CHANDRA MOHAN** ## **RESPONDENT/S:** - **1 THE ORIENTAL INSURANCE CO.LTD., THRISSUR DIVISIONAL OFFICE, 3RD FLOOR, MAHESWARI BUILDING, M.G. ROAD, THRISSUR.** - **2 K.M. PONNI S/O. MADHAVAN, EZHAKKUNNEL HOUSE, PATTIKKAD.P.O, THEKKUMPADAM, THRISSUR DISTRICT.** - **3 THE NEW INDIA ASSURANCE COMAPNY LIMITED PERINCHERY BUILDINGS, ROUND NORTH, THRISSUR.** - **4 KRISHNANKUTTY S/O. KUNJUMON @ INNERI, VARATTIPADIKKAL HOUSE, PUDUKKAD.P.O, VIYOOR, THRISSUR DISTRICT.** - **5 VALSALA W/O. KRISHNANKUTTY, PARATTIPADIKKAL HOUSE, -DO-** - **6 SANDHYA D/O. KRISHNANKUTTY, -DO-** - **7 SOUMYA D/O. KRISHNANKUTTY, -DO-** **BY ADVS. SRI.A.R.GEORGE SRI.M.RAJAGOPALAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09.10.2018, ALONG WITH MACA.2585/2012, MACA.1813/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.1639/12 & Conns. 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **TUESDAY ,THE 09TH DAY OF OCTOBER 2018 / 17TH ASWINA, 1940 MACA.No. 2585 of 2012** **AGAINST THE AWARD IN OPMV 3501/2012 of SPL.COURT FOR EC ACT CASES &MACT,TSR DATED 22-03-2012** ## **APPELLANT/S:** **K.M.PONNI S/. MADHAVAN, EZHAKUNNEL HOUSE, PATTIKKAD P.O, THEKKUMPADAM, THRISSUR DISTRICT.** **BY ADV. SRI.P.V.CHANDRA MOHAN** ## **RESPONDENT/S:** **1 KRISHNANKUTTY S/O.KUNJUMON @ INNERI, VARATTYPADIKKAL HOUSE, PUDUKKAD P.O, VIYOOR, THRISSUR DISTRICT. 680 001. 2 VALSALA W/O.KRISHNANKUTTY, VARATTYPADIKKAL HOUSE, PUDUKKAD P.O, VIYOOR, THRISSUR DISTRICT. 680 001. 3 SANDHYA D/O.KRISHNANKUTTY, VARATTYPADIKKAL HOUSE, PUDUKKAD P.O, VIYOOR, THRISSUR DISTRICT. 680 001. 4 SOUMYA D/O.KRISHNANKUTTY, VARATTYPADIKKAL HOUSE, PUDUKKAD P.O, VIYOOR, THRISSUR DISTRICT. 680 001. 5 THE NEW INDIA ASSURANCE CO.LTD PERINCHERY BUILDING, ROUND NORTH, THRISSUR 680 001. BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09.10.2018, ALONG WITH MACA.1813/2012, MACA.1639/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.1639/12 & Conns. 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **TUESDAY ,THE 09TH DAY OF OCTOBER 2018 / 17TH ASWINA, 1940 MACA.No. 1813 of 2012** **AGAINST THE AWARD IN OPMV 3806/2003 of SPL.COURT FOR EC ACT CASES &MACT,TSR DATED 22-03-2012** ## **APPELLANT/S:** **K.M.PONNI S/O.MADHAVAN, EZHAKUNNEL HOUSE, PATTIKKAD. P.O,THEKKUMPADAM, THRISSUR DIST** **BY ADV. SRI.P.V.CHANDRA MOHAN** ## **RESPONDENT/S:** |**1**|**THE ORIENTAL INSURANCE CO.LTD., THRISSUR**| |---|---| ||**DIVISIONAL OFFICE, 3RD FLOOR, MAHESWARI BUILDING,**| ||**M.G.ROAD, THRISSUR-680001**| |**2**|**KRISHNANKUTTY**| ||**S/O.KUNJUMON @ INNERI, VARATTIPADIKKAL HOUSE,**| ||**PUDUKKAD P.O.,VIYOR, THRISSUR DIST-680301**| |**3**|**VALSALA**| ||**W/O.KRISHNANKUTTY, PARATTIPADIKKAL HOUSE, -DO-**| |**4**|**SANDHYA**| ||**D/O.KRISHNANKUTTY,-DO-**| ||**BY ADVS.**| ||**SRI.P.S.APPU**| ||**SRI.A.R.GEORGE**| ||**SRI.K.A.ANAS**| ||**SRI.T.C.SURESH MENON**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09.10.2018, ALONG WITH MACA.2585/2012, MACA.1639/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.1639/12 & Conns. 4 ## **JUDGMENT** ## **[ MACA 1639/2012, MACA.2585/2012, MACA.1813/2012 ]** The cause of action projected in all these three appeals is in respect of one and the same accident, which was occurred on 02.09.2002. The motorcycle ridden by the appellant (in M.A.C.A.Nos.1813 of 2012 and 2585 of 2012) collided with another motor cycle which was being ridden by one Mr.Santhosh. The appellant in M.A.C.A.No.1639 of 2012 was a pillion rider on the motorcycle ridden by the appellant in M.A.C.A.No.1813 & 2585 of 2012. Mr.Santhosh, rider of the second motorcycle succumbed to death. Rider and pillion rider of the first motorcycle sustained injuries. This led to three separate claim petitions before the Tribunal. 2. The evidence adduced before the Tribunal consists of the oral evidence of PW1 to PW3. PW1 is the first claimant in the claim petition filed by the legal heirs of the deceased Santhosh and PW3 is the claimant/appellant in M.A.C.A.No.1639 of 2012. PW2 is the doctor who issued the disability certificate in respect M.A.C.A.1639/12 & Conns. 5 of the disability stated as suffered by the appellant in M.A.C.A.No.1639 of 2012. Based on the evidence on record, the Tribunal arrived at a finding that the accident was only because of the negligence on the part of the appellant in M.A.C.A.No.1813 of 2012 and 2585 of 2012. 3. While considering the matter, it was observed by the Tribunal that the claim petition preferred by the rider of the first motorcycle (appellant in M.A.C.A.No.1813 of 2012 and M.A.C.A.No.2585 of 2012) was under Section 163A. It was observed that, by virtue of the ruling rendered by the Apex Court in **National Insurance Company v. Sinitha [2011(4)KLT 821 (SC),** the negligent aspect since stood proved as exclusively upon the rider of the first motorcycle (claimant in O.P. (MV).No.3806 of 2003), the claim was held as not maintainable. Accordingly, O.P(MV) 3806 of 2003 was dismissed, which is sought to be interdicted in M.A.C.A.No.1813 of 2012. With regard to the claim petition preferred by the legal heirs of the deceased Santhosh O.P.(MV).No.3501 of 2002, a total compensation of 3,10,000/- was awarded with interest. This was₹ M.A.C.A.1639/12 & Conns. 6 sought to be enhanced by filing an appeal by the claimants in the said case as M.A.C.A.No.1642 of 2012. The rider of the offending motorcycle has also challenged the said award with regard to fixation of negligence and quantum by way of M.A.C.A.No.2585 of 2012. It is brought to the notice of this Court that M.A.C.A.No.1642 of 2012 preferred by the claimants was already heard and disposed of, based on the settlement arrived at between the parties on 23.11.2013, granting enhancement to the agreed extent. In the said circumstances, the learned counsel for the appellant in M.A.C.A.No.2585 of 2012 submits that the said appeal is not pressed. Hence, M.A.C.A.No.2585 of 2012 dismissed as not pressed. 4. With regard to the quantum of compensation claimed by the appellant in M.A.C.A.No.1639 of 2012 (arising from O.P.(MV).No.3850 of 2003) it was awarded by the Tribunal reckoning the monthly income as 2,000/- and₹ adopting a multiplier of 14 in respect of disability of 10% (as against the certified disability of 20%). The total sum awarded in the said case is 90,400/-, which is₹ stated as inadequate and hence the appeal for enhancement by the claimant in O.P.(MV).No.3850 of 2003. M.A.C.A.1639/12 & Conns. 7 5. Coming to M.A.C.A.No.1813 of 2012 arising from O.P.(MV).No.3806 of 2003, the challenge is against the dismissal of the claim petition with reference to the dictum in **Sinitha's case (supra).** The decision rendered by the Apex Court in **Sinitha's case** was subsequently doubted and referred to Larger Bench. The law stands settled by the Larger Bench as per the verdict passed in **United India Insurance Co.Ltd. v. Sunil Kumar & another** **[2017 KHC 5644],** whereby it is declared that the insurer cannot raise any valid ground of defence with reference to negligence, in a claim petition filed under Section 163A of the Act. As such, whether it is pleaded or proved is a matter of no consequence and the liability has to be enshrouded by the Insurance Company, if it is otherwise sustainable. This being the position, the dismissal of the claim petition in O.P.(MV).No.3806 of 2003 cannot be held as correct and the matter requires to be reconsidered by the Tribunal, treating it as maintainable in the light of the Larger Bench decision. 6. In this context, a submission is made by the learned counsel for the respondent Insurance Company, stating that a specific plea was raised in the written M.A.C.A.1639/12 & Conns. 8 statement, that the claim petition was not maintainable under Section 163A in view of the fact that the claimant was a person who was admittedly having an income of more than 40,000/- per year. It is pointed out that the₹ benefit of Section 163A is available only to a particular class and that the claimant will not come within the purview of the said class, in view of the law declared by the Three Member Bench in **Deepal Girishbhai Soni and Ors.** **v. United India Insurance Co.Ltd.[(2004) 5 SCC 385]** . However, this plea is not seen discussed or dealt with by the Tribunal while passing the award; obviously for the reason that interference was declined and the claim petition was dismissed placing reliance on the verdict passed by the Apex Court in **Sinitha' case (supra).** Since the matter requires to be reconsidered in view of the Larger Bench Ruling in **Sunilkumar's case (supra)** this Court makes it clear that, it is for the Tribunal to consider the above specific plea raised by the Insurance Company as to the maintainability with reference to the higher income factor, i.e., above 40,000/- per annum as₹ conceded by the claimant. M.A.C.A.No.1813 of 2012 stands remanded to the Tribunal for fresh consideration. M.A.C.A.1639/12 & Conns. 9 7. In M.A.C.A.No.1639 of 2012 (arising from O.P. (MV).No.3850 of 2003)the injuries sustained by the claimant are as follows: “Head injury, Stiletto fracture left patella, fracture right frontal bones, fracture maxillary antrun with hemosinus bilateral ethmoid sinusitis, bilateral total anosmia, haemorrhagic contusion right frontal lobe, cerebral oedema, loss of teeth, abrasion on frontal right side of face, right knee, lacerated wound left leg, abrasion on left knee, toes of left foot, swelling on right cheek and left cheek, crown fracture and multiple bodily injuries”. 8. The claimant was a general worker, aged 44 years. But his notional monthly income was taken only as **₹2,000/-,** though appropriate multiplier of '14' has been adopted to work out the disability compensation. Considering the date of the accident (having occurred in the year 2002), the age of the injured as 44 years and such other attendant circumstances, this Court is of the view that the notional monthly income ought to have been reckoned @ **₹3,000/-** . It is ordered accordingly. Despite the disability certified by the Doctor as 20%, the M.A.C.A.1639/12 & Conns. 10 Tribunal has reduced the same to 10% without any further discussion as to the reason for deduction. Since the claimant himself was examined as PW3 and the Doctor (Associate Professor) who had issued the disability certificate was also examined; the reason for deduction ought to have been mentioned in crystal clear terms. Since no such exercise has been done and the burden on the part of the claimant has been discharged, this Court finds it appropriate to reckon the entire 20% of the disability certified by the Doctor. On reworking, the disability compensation, it comes to **3000x12x14x20/100=1,00,800/-.** After deducting the sum of **₹33,600/-** awarded by the Tribunal, the balance amount comes to **₹67,200/-.** It is awarded accordingly. Considering the nature and extent of disability and the ordeal undergone, a further sum of **₹10,000/-** is awarded towards loss of amenities and enjoyment in life. It is ordered accordingly. The total balance compensation payable comes to **₹77,200/- (Rupees seventy seven thousand only)** , which is required to be satisfied by the respondent Insurance Company with interest @ 7.5% per annum from the date of claim petition, till satisfaction. 11 M.A.C.A.1639/12 & Conns. The amount due shall be deposited before the Tribunal at the earliest, at any rate within six weeks from the date of receipt of a copy of this judgment. In the result; M.A.C.A.No.2585 of 2012 stands dismissed as not pressed, M.A.C.A.No.1813 of 2012 stands remanded and M.A.C.A.No.1639 of 2012 stands disposed of. Sd/- ## **P.R.RAMACHANDRA MENON** DG **JUDGE**