MACA No. 1318 of 2010 (E)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **TUESDAY, THE 18TH DAY OF SEPTEMBER 2012/27TH BHADRA 1934** ## **MACA.No. 1318 of 2010 (E)** **------------------------------------[O.P(MV).NO.1289/2006 DTD. 18/11/2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA]** **.................** ## **APPELLANT/PETITIONER IN O.P.(MV):** **-------------------------------------------------------** **RAMAKRISHNAN,S/O.KOCHAKKAN, KUNDOLY HOUSE,POTTA DESOM,PERAMBRA VILLAGE, MUKUNDAPURAM TALUK,THRISSUR DISTRICT.** **BY ADVS.SRI.P.V.BABY, SRI.A.N.SANTHOSH.** ## **RESPONDENTS/RESPONDENTS IN O.P(MV):** **---------------------------------------------------------------** **1. K.T.BAIJU,S/O.THOMAS,KOOTTALLI HOUSE, POTTA.P.O.** **2. RAVI,S/O.MANI,POTTAMPARAMBIL HOUSE, POTTA.P.O.** **3. NATIONAL INSURANCE CO.LTD., IRINJALAKUDA.** ## **R3 BY ADV. SMT.SARAH SALVY.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **P.N.RAVINDRAN, J.** **-------------------------------------M.A.C.A No.1318 of 2010** **--------------------------------------Dated this the 18[th] day of September , 2012** ## **J U D G M E N T** The claimant in O.P.(M.V.) No.1289 of 2006 on the file of the Motor Accidents Claims Tribunal, Irinjalakkuda is the appellant in this appeal. In the claim petition, the appellant claimed the sum of Rs.1,00,000/- as compensation for the injuries sustained by him in a motor accident that took place on 8.5.2006. By award passed on 18.11.2009, the Motor Accidents Claims Tribunal awarded the sum of Rs.57,700/- as compensation together with interest and costs and directed respondents 1 and 2 namely the owner and driver respectively of the motor vehicle to pay the said amount. The insurer was exonerated on the ground that the claimant was travelling in a goods auto rickshaw as a gratuitous passenger and was not accompanying the goods as claimed by him. Hence this appeal. 2. The appellant had in the claim petition contended inter-alia that he was travelling in the goods vehicle (a goods auto rickshaw) belonging to the first respondent and driven by the second respondent as the authorized representative of the owner of the goods carried therein. He alleged that on account of the rash and negligent driving of the goods auto rickshaw by the second respondent driver, it M.A.C.A No.1318 of 2010 -2- overturned and as a result thereof he sustained serious injuries including fracture of both bones of the left leg. It was stated that he was hospitalized and was treated as an inpatient in St.James Hospital, Chalakudy during the period from 8.5.2006 to 20.5.2006 and that as a result of the injuries sustained by him, he is permanently disabled. 3. The owner and driver of the goods vehicle did not enter appearance and were set ex-parte. The third respondent insurer filed a written statement contending inter alia that the policy issued in respect of goods vehicle is an Act only policy, that no extra premium was collected to cover a gratuitous/non-fare paying passenger and therefore, it is not liable to indemnify the insured or to pay any amount to the claimant. The third respondent also denied the assertion made by the claimant that he was travelling in the goods vehicle as the authorized representative of the owner of the goods carried therein. It was specifically alleged that there were no goods in the vehicle at the time of the accident and that the claimant was travelling in the goods vehicle as a gratuitous passenger. The relevant averments in that regard contained in paragraphs 7 and 14 of the written statement dated 14.3.2007 filed by the insurer are extracted below for easy reference. 7. This respondent admits that the vehicle KL 08 C 3472 3 wheeler goods vehicle public vehicle had an Act Only policy on the date of alleged accident on 8.5.06. No extra M.A.C.A No.1318 of 2010 -3- premium collected to cover a gratuitous/non-fare paying passenger so the 3[rd] respondent is not legally liable to indemnify the 1[st] respondent or to pay any amount to the petitioner as per law and as per the conditions of the policy. 14. The averments and allegations in column 28 of the petition are false and hence denied. The averment in the petition that the petitioner was travelling in the vehicle as the authorized representative of the owner of the goods carried in the vehicle is not true and hence denied. There were no goods in the vehicle at the time of the alleged accident. The petitioner was travelling in the goods vehicle as a gratuitous passenger. So this respondent is not legally liable to indemnify the 1[st] respondent or to pay any amount to the petitioner as per law and as per the conditions of the policy. This respondent denies the averment that the alleged accident was caused due to the rash and negligent act of the 2[nd] respondent. The accident was caused due to the rash and negligent act of the petitioner who was travelling in the goods vehicle as a gratuitous passenger. 4. In the Motor Accidents Claims Tribunal, the claimant was examined as PW1 and Exhibits A1 to A7 were marked. On the side of the respondents the policy issued in respect of the vehicle was produced and marked as Ext.B1; but no oral evidence was adduced. The Motor Accidents Claims Tribunal on an analysis of evidence available before it held that the accident occurred as a result of the rash and negligent driving of the autorikshaw by the second respondent driver. The Motor Accidents Claims Tribunal thereafter held that the claimant is entitled to receive the sum of Rs.57,700/- as M.A.C.A No.1318 of 2010 -4- compensation. The Motor Accidents Claims Tribunal thereafter proceeded to consider the question whether the insurer can be held liable to pay the compensation. After noticing that Ext.B1 policy is an Act only policy which does not cover gratuitous passengers, the Motor Accidents Claims Tribunal held that the claimant has not succeeded in proving that he was traveling in the vehicle as the agent of the owner of the goods and therefore the insurer is not bound to indemnify the insured in respect of the claim made by the appellant. The Motor Accidents Claims Tribunal accordingly passed an award directing the owner and driver of the goods autorikshaw to pay the compensation awarded by it together with interest and costs. The claimant has aggrieved by the quantum of compensation awarded by the Motor Accidents Claims Tribunal and the finding entered by the Motor Accidents Claims Tribunal that the insurer is not liable to pay the compensation, filed this appeal. 5. I heard Sri.A.N.Santhosh, learned counsel appearing for the appellant and Smt.Sarah Salvy, learned counsel appearing for the third respondent insurer. The claimant had in column 10 of the petition filed by him in the Motor Accidents Claims Tribunal claimed that he was travelling in the autorickshaw as the authorised representative of the owner of the goods carried therein. A similar claim was made in column 25 as well. The claimant did not however M.A.C.A No.1318 of 2010 -5- adduce any evidence to establish his contention that he was travelling in the goods autorikshaw as the representative of the owner of the goods carried therein. In fact he was not even able to prove his contention that any goods were carried in the autorikshaw. Not even the nature of the goods carried therein was mentioned by him either in the claim petition or when he was examined as PW1. The only case spoken to by him when examined as PW1 was that shovels and spades were being carried in the autorikshaw. His attempt was to make it appear that he was travelling in the goods autorikshaw in connection with some work. In the absence of any evidence to show that any goods were being carried in the autorikshaw and the claimant was travelling in the autorikshaw as the agent of the owner of such goods or as the representative of the owner of such goods, I am of the opinion that the finding entered by the Motor Accidents Claims Tribunal that the claimant was a gratuitous passenger travelling in a goods autorikshaw and therefore the insurer is not liable to indemnify the insured does not merit interference. The view that I have taken finds support in the decision of the Apex Court in **United India Insurance Co.Ltd. v. Suresh [2008 (4) KLT 552(SC)]** and the decision of the Division Bench of this Court in **United India Insurance Co.Ltd.v.Manoj [ILR 2011 (1) Kerala 358]** . 6. That takes me to the question whether the claimant is entitled M.A.C.A No.1318 of 2010 -6- to enhancement of the compensation awarded by the Motor Accidents Claims Tribunal. The claimant had in the claim petition claimed a total sum of Rs.1,77,000/- as compensation under different heads but limited it to Rs.1,00,000/-. The claim for compensation made by the claimant under different heads is set out in Part I and Part II. It is not in dispute that in the accident the appellant suffered Type II open fracture of both bones of the left leg. He was admitted as an inpatient in St.James Hospital, Chalakkudy on 8.5.2006 and was discharged only on 20.5.2006. These facts are discernible from Ext.A3 wound certificate and Ext.A4 discharge card issued from St.James Hospital, Chalakkudy. The claimant had in addition to the aforesaid documents produced and marked as Ext.A5, a disability certificate issued by the orthopaedic surgeon attached to CCMK Hospital, Chalakkudy wherein he had certified that the claimant has a permanent disability of 10%. The Motor Accidents Claims Tribunal however held that in the absence of any evidence on the side of the claimant to prove that he had suffered any disability as a result of the injuries sustained in the accident, the disability certificate cannot be acted upon. The Motor Accidents Claims Tribunal accordingly declined to award any compensation for disability. The Motor Accidents Claims Tribunal has however noticed that there is slight angulation of the petitioner's left leg just above the ankle and that as a result thereof there is deformity. M.A.C.A No.1318 of 2010 -7- On that score the Motor Accidents Claims Tribunal awarded the sum of Rs.5,000/- as compensation. The Medical Officer who issued Ext.A5 disability certificate has certified therein that the claimant has valgus deformity of 15 degree in the left leg. He had also certified that as a result thereof there is partial ankylosis of the left ankle. In my opinion, having regard to the fact the claimant was a manual labourer, the Motor Accidents Claims Tribunal should have awarded him compensation for permanent disability instead of limiting it to Rs.5,000/- as compensation for the deformity. The Medical Officer who issued Ext.A5 disability certificate has certified that the claimant has 10% permanent disability. The claimant had adduced evidence to prove that he was earning Rs.2,000/- per mensem and the Motor Accidents Claims Tribunal had awarded compensation for loss of earnings for three months @ Rs.2,000/- per month. The claimant was aged 49 years at the time of the accident. In my opinion, having regard to the evidence on record the claimant is entitled to be awarded the sum of Rs.2,000 X 12 X 13 X 10/100 = Rs.31,200/- as compensation for permanent disability. Consequently, I hold that the appellant/claimant is entitled to receive a further sum of Rs.31,200/as compensation together with interest therein @ 7% per annum from the date of petition, till realization. I accordingly allow the appeal and in modification of the award M.A.C.A No.1318 of 2010 -8- passed by the Motor Accidents Claims Tribunal award a further sum of Rs.31,200/- as compensation together with interest thereon @ 7% per annum from the date of application till realisation. Needless to say respondents 1 and 2 shall pay the additional amount of compensation awarded hereunder together with interest. The parties shall bear their respective costs. Sd/- **P.N.RAVINDRAN, JUDGE.** Rkc // true copy// PA to Judge