MACA No. 818 of 2007 (B) and MACA No. 645 of 2008, High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **THURSDAY, THE 2ND DAY OF FEBRUARY 2012/13TH MAGHA 1933** ## **MACA.No. 818 of 2007 (B)** **-----------------------------------[O.P(MV).NO.568/1999 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALAKKAD] .................** ## **APPELLANT/PETITIONER:** **-------------------------------------** **M.PARAMESWARAN, S/O.MANI, NADUVAKKAD HOUSE, KINASSERY POST, PALAKKAD DISTRICT.** ## **BY ADV. SRI.A.R.GANGADAS.** ## **RESPONDENTS/RESPONDENTS:** **-----------------------------------------------** **1. CHANDRAN.V., S/O. VELAYUDHAN, KALLANPARAMBU, PALLASSANA, PALAKKAD DISTRICT.** **2. SHAMSUDHEEN, S/O.RAJAKUTTY, KOTTAPPADIKALAM, KODUVAYUR P.O., PALAKKAD.** **3. THE UNITED INDIA INSURANCE CO. LTD., 19/290 G.B.ROAD, PALAKKAD.** **R1 & R2 BY ADV. SRI.G.SREEKUMAR (CHELUR), R3 BY ADV. SRI.P.V.JYOTHI PRASAD.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02-02-2012, ALONG WITH M.A.C.A.NO. 645/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **PIUS C.KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ.** **=====================** M.A.C.A. NOS. 818 OF 2007 & 645 OF 2008 ## **=====================** Dated this the . 2[nd] day of February 2012 ## JUDGMENT ## **Ramakrishna Pillai.J** The Award passed by the Motor Accidents Claims Tribunal,Palakkad in O.P.(MV) 568 of 1999 is under challenge in both these appeals. M.A.C.A.No.645 of 2008 was filed by the third respondent-Insurance Company with which the offending vehicle was insured. M.A.C.A.No.818/2007 was filed by the injured. 2. The challenge raised by the appellant company is that the award was passed by the learned Tribunal without considering the specific plea raised by the heirs in paragraph 2 of the written statement as to the violation of policy conditions. According to the appellant, the impugned award directing the appellant to satisfy the claim is contrary to the law declared by this Court in the decision reported in **National Insurance Co.Ltd. v. Kottan[2003(2)K.L.T. 29]** . According to the Insurance company, the injured was an unauthorised passenger MACA 645/2008 & 818/2007 -2- in a tractor and accordingly he is not entitled to be compensated by the company in view of the law declared in **New India Assurance Co.Ltd. v. Asha Rani[2003(1)K.L.T.165].** Thus it was alleged that the finding of the Tribunal fixing the liability on the Insurance company is unjustified. 3. The injured on the other hand attacked the award on the adequacy of compensation. 4. We have heard the learned counsel appearing for the appellants in both cases as well as the learned counsel for the respondents. 5. For convenience of discussion, the parties can be referred to as they are arrayed in the Original Petition. 6. Admittedly, the petitioner-injured was travelling by a tractor owned by the 2[nd] respondent in the Original petition, which was driven by the first respondent and insured with the third respondent - Insurance company. The specific case put forward by the petitioner before the Tribunal was that he was travelling in the trailor attached to the tractor accompanying the goods belonging to his employer. The respondent-Insurance Company on the other hand contended that he was travelling on the mud-guard of the tractor and as the injured was an MACA 645/2008 & 818/2007 -3- unauthorised passenger, they are not liable to indemnify the 2[nd] respondent - owner as the policy issued by them did not extend the unauthorised passengers. It is true that a tractor with trailor will satisfy the definition of a goods vehicle as it is meant to carry goods. To substantiate the case, the Insurance Company relied on Ext.B1 which is the copy of policy issued by them covering the tractor involved in the accident. 7. We have gone through Ext.B1. It is an act only policy. The benefit of Ext.B1 policy does not extend to unauthorised passengers of the vehicle covered by the said policy. The learned Tribunal was not prepared to rely on Ext.B1 policy on the ground that the Insurance Company had not filed any report as enjoined under Rule 376 of the Kerala Motor Vehicles Rules which reads as follows: “376. It shall be the responsibility of the insurance company to collect the particulars regarding the registered owner of the vehicle and the driving licence and submit a report thereof to the Claims Tribunal concerned together with other information such as the name of the insurance company, the Divisional Office under which the policy has been taken, the number of the policy/certificate, the period for which the policy subsists and the nature MACA 645/2008 & 818/2007 -4- of the insurance liability, immediately on receipt of information regarding the accident from the parties.” But according to us, the compliance with the said provision did not arise in the present case as the details of owner, driver and insurer as well as the policy were known. As Ext.B1 was an act only policy which does not extent to unauthorised passengers travelling by the vehicle covered by the same, we are of the definite view that the appeal filed by the Insurance company has to be allowed and they are to be exonerated from the liability of paying compensation to the petitioner-injured in this case. 8. On the basis of the submissions made by the learned counsel for the injured/claimants, we have carefully gone through the relevant paragraphs of the award passed by the learned Tribunal. For arriving at the quantum, the learned Tribunal mainly relied on the medical records such as Ext.A4 wound certificate and Ext.A5 discharge summary. These documents would reveal that the injured was hospitalised for about 14 days. These records would show that he had multiple abrasions on the right side of chest and over the face. Fracture MACA 645/2008 & 818/2007 -5- to zygomatic arch - bilateral (both sides) with loss of vision to the left eye was noted in addition to that there was subdural haematoma. Fracture to anterior wall of right orbit and fracture right to sphenoid was also noted. Though the claimant had sustained extensive injuries on his face, only Rs.12,000/- was awarded towards pain and suffering by the learned Tribunal. This according to the learned counsel for the injured/claimant is low. Considering the extensive nature of the injuries and period of hospitalisation, we are of the definite view that the injured/claimant is entitled to a further sum of Rs.8,000/- for pain and suffering. The Tribunal fixed the monthly income of the claimant at Rs.1500/-. The accident was of the year 1997. We are of the view that the monthly income of the injured/claimant can be fixed at Rs.2500/- and while doing so, we find that he is entitled to a further sum of Rs.2,000/- for loss of earning for two months. 9. Ext.X1 was relied on by the learned counsel for the claimant/injured which is a disability certificate issued by the Medical Board. This was admitted in evidence through PW1 who was one of the members of the Medical Board. The visual ability of the injured/claimant was reduced by 30%, it is stated in MACA 645/2008 & 818/2007 -6- Ext.X1. It is recorded as post traumatic optic atrophy. The learned Tribunal took Optic Atrophy as a condition of optic disc when the optic nerve gets degenerated. However, no substantial amount was awarded by the learned Tribunal towards compensation for permanent disability on the ground that the test result for arriving at the percentage of disability, i.e. Ext.X1 was not produced. This according to us is not justifiable. The Tribunal has found that the injured claimant was not having any other illness. So the visual disability can be attributed only to the head injury sustained by him in the accident. Taking into account the injuries sustained by him and also considering the fact that there is impairment to his vision, we are of the view that the claimant can be given an additional sum of Rs.25000/- for continuing discomfort/permanent disability. Thus in total the injured is entitled to an additional sum of Rs.35,000/-. 10. In the result, both the appeals are allowed. The Insurance Company who is the appellant in M.A.C.A.No.645 of 2008 is exonerated from the liability for paying compensation and the award shall stand modified as above. MACA 645/2008 & 818/2007 -7- 11. The appellant in M.A.C.A.No.818/2007 is awarded an additional sum of Rs.35,000/- as compensation. 12. The amount if any deposited by the Insurance Company shall be released to them. 13. The enhanced amount will carry interest at the rate of 7.5% per annum **sd/-** **PIUS C.KURIAKOSE, JUDGE** **Sd/-** **A.V.RAMAKRISHNA PILLAI, JUDGE** **ks.** **True copy** ## **P.s.To Judge**