MACA No. 841/2012 & MACA No. 905/2013, In the High Court of Kerala at Ernakulam

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN ``` ``` THURSDAY, THE 2[ND] DAY OF MARCH 2023 / 11TH PHALGUNA, 1944 MACA NO. 841 OF 2012 ``` ``` AGAINST THE ORDER/JUDGMENTOPMV 117/2009 OF MOTOR ACCIDENT ``` ## **`CLAIMS TRIBUNAL ,KOTTAYAM`** ## **`APPELLANT/PETITIONER:`** ``` C.M.KURIAKOSE S/O C.J. MATHEW, CHUNDELIKKATTIL, CHERUMBACHAL KARA, MALAKKALLU P.O., KASARGODE, NOW RESIDING AT CHUNDELIKKATTIL, KODUNGOOR, VAZHOOR, KOTTAYAM. BY ADVS. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.T.M.BINITHA ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1K.R.SURESH KUMAR KAKKANATTU, THEKKETHU KAVALA P.O., PONKUNNAM-686 519. ``` ``` 2SHIBU MON P.G. S/O GOPALA KRISHNAN, PUTHUKKATHAGHR, PULIYANNOOR, PALAI-686 573. 3THE NATIONAL INSURANCE CO. LTD. KOTTAYAM-686001. BY ADVS. SRI.M.A.GEORGE SMT.MABLE.C.KURIAN SMT.DEEPA GEORGE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02.03.2023, ALONG WITH MACA.905/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 2[ND] DAY OF MARCH 2023 / 11TH PHALGUNA, 1944 MACA NO. 905 OF 2013 ``` ``` AGAINST THE JUDGMENT IN OP(MV)117/2009 OF MOTOR ACCIDENT ``` ## **`CLAIMS TRIBUNAL ,KOTTAYAM`** ## **`APPELLANT/3RD RESPONDENT:`** ``` THE NATIONAL INSURANCE COMPANY LTD, C.S.I. ASCENSION CENTRE, KOTTAYAM-2, REPRESENTED BY ITS MANAGER. ``` ``` BY ADVS. SRI.A.A.ZIYAD RAHMAN LAL K JOSEPH P.MURALEEDHARAN (THURAVOOR)(K/1651/2000) SURESH SUKUMAR(K/634/1997) ANZIL SALIM(K/000447/2018) ``` ## **`RESPONDENTS/PETITIONER AND RESPONDENT NOS.1&2:`** ``` 1C.M.KURIAKOSE CHUNDELIKKATTIL, CHERUMBACHAL KARA, MALAKKALLU P.O., KASARAGODE, NOW RESIDING AT CHUNDELIKKATTIL, KODUNGOOR, VAZHOOR, KOTTAYAM. ``` - `2 K.P.SURESHKUMAR KAKKANATTU, THEKKETHU KAVAL P.O., PONKUNNAM, PIN 686682.` - `3 SHIBUMON P.G. PUTHUKARATHODE, PULIYANNOOR, PALA.686670` ``` BY ADVS. SMT.ACHU SUBHA ABRAHAM SRI.SUNIL CYRIAC SMT.K.R.MONISHA SRI.PHILIP T.VARGHESE SRI.SUNIL CYRIAC SRI.THOMAS T.VARGHESE ``` ``` deepa george ``` **MACA.No.841/12 & 905/13** **==> picture [20 x 8] intentionally omitted <==** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02.03.2023, ALONG WITH MACA.841/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **MACA.No.841/12 & 905/13** ..4.. ## **`JUDGMENT`** ## **`[MACA Nos.841/2012 & 905/2013]`** These two appeals have been heard together and are being disposed of jointly through this judgment, because they relate to the same road accident and emanated from the same Award. 2. Among the afore MACA No.905/2013 has been filed by the National Insurance Company, impugning the Award of the Motor Accidents Claims Tribunal, Kottayam (“Tribunal” for short) in OP(MV)No.117/2009, on the ground that, in view of the fact that the offending vehicle involved in a road accident was being operated for commercial purposes - though covered only by a Private Car Policy - the liability to pay the compensation to the claimant ought not to have been cast upon them. 3. Even before the afore MACA had been filed, the claimant Sri.C.M.Kuriakose, filed the above MACA No.841/2012, impugning the same Award of the Tribunal, asserting that the compensation granted to him is exiguous. 4. I have heard Sri.Suresh Sukumar - learned Standing Counsel for the Insurance Company; Sri.Sunil Cyriac – learned **MACA.No.841/12 & 905/13** ..5.. counsel for the owner of the offending vehicle; Sri.Philip T.Varghese – learned counsel appearing for the claimant - Sri.C.M.Kuriakose and Smt.Deepa George – learned Standing Counsel for the same Insurance Company, but who is arrayed as the respondent in MACA No.841/2012. 5. The specific argument of Sri. Suresh Sukumar was that the evidence on record would clearly show that the offending vehicle had a valid Permit to be operated as a taxi; and therefore, that going by the judgment of this Court in _**Afsal.K.A v. Roby Kuriakose and Others**_ [2021 (5) KHC 541], his client ought to have been fully exonerated from the liability to pay compensation. He thus prayed that MACA No.905/2013 be allowed. 6. However, Sri.Sunil Cyriac – learned counsel appearing for the owner of the offending car, argued that the evidence is not only silent regarding any negligence from his client’s side, but of the factum of a Permit having been available for his client’s vehicle. He argued that, what has been now asserted by the Insurance Company is only based on certain assumptions made by them, but is not born from the evidence. He thus prayed that no liability be shifted to his client, as prayed for by the Insurance Company. **MACA.No.841/12 & 905/13** **==> picture [20 x 8] intentionally omitted <==** 7. Sri.Philip T. Varghese – learned counsel appearing for the claimant, on the other hand, submitted that his client has no role in the controversy between the owner of the offending vehicle and the Insurance Company; and that he is aggrieved because the compensation awarded to him is inadequate. He argued that the reason why the compensation has been fixed so low by the learned Tribunal is that it has adopted his clients’ notional income to be a mere Rs.3,500/-, against the claim of Rs.5,000/-. He argued that, in addition, the multiplier adopted by the Tribunal is also wrong, gives it has assumed incorrectly that his client was 52 years of age at the time of the accident, when he was only 42 years old. He thus prayed that MACA No.841/2012 be allowed as prayed for. 8. I have considered the afore rival submissions and have also examined the evidence on record very carefully. 9. I will first answer the contentions of the claimant with respect to enhancement of compensation sought for by him because, as rightly argued by his learned counsel - Sri.Philip T.Varghese, he is not concerned about the controversy impelled by the Insurance Company against the owner of the offending vehicle. **MACA.No.841/12 & 905/13** **==> picture [20 x 8] intentionally omitted <==** 10. It is true that the claimant Sri.C.M.Kuriakose, sought Rs.5,000/- to be fixed as his notional income, but that the Tribunal adopted only Rs.3,500/-. This is because, there was no evidence led by Sri.C.M.Kuriakose in any manner to prove his income and obviously, therefore, the Tribunal could have only made an assessment, based on all relevant factors. However, the learned Tribunal fixed it as Rs.3,500/-, but without being able to advert to the declarations of the Hon’ble Supreme Court in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited. [(2011) 13 SCC**_ _**236],**_ for which, I cannot place blame on it, since this judgment had not been delivered, when it issued the impugned Award. However, going by the said precedent, the minimum notional income to be reckoned in the case of a person with unascertainable income in the year 2003 - when the accident occurred is Rs.4,000/-, I am certain that this figure should be taken. 11. Further, Sri.Philip T.Varghese is right when he says that his client was only 42 years of age at the time of the accident, which is evident from the fact that, in Ext.A13 Medical Certificate, his date of birth has been recorded to be 18.03.1961. Therefore, when he was only 42 years old at the **MACA.No.841/12 & 905/13** **==> picture [20 x 8] intentionally omitted <==** time of the accident, the multiplier ought to have been taken is ‘14’, going by _**Sarla Verma v. Delhi Transport Corporation**_ [2010(2)KLT 802 SC] _._ 12. Though, not specifically pleaded or sought for, this Court is certainly of the view that, to obtain a just and fair compensation to the claimant - who had suffered an amputation of his leg 25% future prospects must be added to his income, going by the judgment in **National Insurance Company Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)]. 13. That being so concluded, I will now proceed to the contentions of the Insurance Company, impelled in MACA NO.905/2013. 14. Sri.Suresh Sukumar – learned counsel for the appellant in MACA No.905/2013, vehemently argued that the documents annexed to Ext.A3 Charge Sheet would limpidly show that the offending vehicle, which his client had insured, was covered by a valid Permit as a taxi, at the time of the accident. If this factum is true, then certainly, the judgment of this Court in _**Afsal.K.A** (_ supra) would come to operate and the company may be deserving to be fully exonerated. However, going by Ext.A3 – Charge Sheet, I do not see any record therein to the effect that the offending vehicle was covered by a **MACA.No.841/12 & 905/13** ..9.. Permit at the time of the accident. Obviously, therefore, if the Insurance Company had any evidence to prove otherwise, they ought to have produced and proven it, but in the absence of any such having been done, the submissions now made can only be seen to be conjectural. 15. However, it must be borne in mind that, in the written statement filed by the Insurance Company before the Tribunal, a specific contention had been taken that the vehicle, though covered by a Private Car Policy was being used as a Taxi. It is, therefore, a case where they should have led apposite evidence. 16. That said, however, the owner of the offending vehicle has remained _exparte_ through out the proceedings, though he is represented by Sunil Cyriac before this Court. The argument of the learned counsel is that, since the written statement of the Insurance Company does not contain any imputation that his client had suppressed any material fact, _**Afsal.K.A**_ (supra) would apply only if his client had obtained a Permit for the car after the Insurance Policy had been taken and not otherwise. 17. The afore rival contentions render it evident that, on one hand, the Insurance Company alleges that the owner of **MACA.No.841/12 & 905/13** ..10.. the offending vehicle had suppressed the factum of the obtention of a Permit prior to the availing of the Insurance Policy; while the latter contends to the contrary. This cannot be resolved without a proper procedure being followed, which will require additional evidence to be lead and proved. 18. However, the claimant cannot be put to any prejudice, since he has been awaiting just compensation for the last several years, if not a decade. 19. I, therefore, am of the firm view that an opportunity must be given to the Insurance Company to lead evidence against the owner of the offending vehicle, provided they deposit the entire amount as ordered by the Tribunal, so that the claimant can then receive it. Of course, if the Tribunal is to find in their favour, subsequent to the remand, they can always be given the liberty to recover it from the owner of the offending vehicle. In the afore circumstances, these appeals are ordered as under: ## **i. MACA No.841/2012** a. The compensation under the head ‘Permanent Disability’ is enhanced to Rs.6,72,000/-, instead of Rs.3,69,600/-, as awarded by the Tribunal, reckoning the **MACA.No.841/12 & 905/13** **==> picture [26 x 8] intentionally omitted <==** notional income of the appellant to be Rs.4,000/- per month, adding 25% future prospects to it and adopting the multiplier of ‘14’ as per **Sarla Verma** (supra). b. Axiomatically, the compensation under the head ‘Loss of Earnings’ would stand revised to Rs.32,000/-, instead of Rs.28,000/- as awarded by the Tribunal, again reckoning the notional income of the appellant to be Rs.4,000/- per month. In all other heads, the compensation awarded by the learned Tribunal will remain unaltered. Needless to say, the appellant will be entitled to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 7.5% per annum, as ordered by the Tribunal, from the date of claim until it is realised. The claimant will also be entitled to proportionate costs as awarded by the Tribunal on the enhanced amounts. ## **ii. MACA No.905/2013** This appeal is allowed to the limited extent of remanding the Original Petition, solely to decide the question whether a pay and recovery order can be given in favour of the Insurance Company. However, this shall be on condition that they shall deposit the entire compensation, as enhanced by this Court, **MACA.No.841/12 & 905/13** **==> picture [26 x 8] intentionally omitted <==** along with costs and interest, before the Tribunal, within a period of two months from the date of receipt of a copy of this judgment. On such deposit being made, the claimant will be at full liberty to receive it from the Tribunal; and it will, thereupon, proceed to rehear the matter on the afore sole issue, after giving necessary opportunities to both sides, except the claimant, to lead additional evidence, as also of a further hearing; thus culminating in an appropriate Final Award, as expeditiously as is possible, but not later than eight months from the date of the receipt of a copy of this judgment. For this purpose, the parties, except the claimant, will appear before the Tribunal on 23.03.2023 at 11 AM. Sd/- ## **DEVAN RAMACHANDRAN, JUDGE** SAS/ACR