MACA No. 946 of 2012

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 9[TH] DAY OF MAY 2023 / 19TH VAISAKHA, 1945 MACA NO. 946 OF 2012 ``` ``` AGAINST THE ORDER/JUDGMENT IN OPMV 969/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM DATED 12.10.2011 APPELLANT/PETITIONER: ``` ``` AJIMON.V.S. ``` ``` VANIYAPURACKAL,THIRUVARPPU KARA,KOTTAYAM. BY ADV SRI.MATHEW PHILIP EDAPPALLIL ``` ## **`RESPONDENTS/RESPONDENTS:`** - `1 K.V.N.KURUP SREE NARAYANEEYAM(H),KUDAMALOOR.P.O,AYMANAM(NO MORE).` - `2 * MANU NARAYANAN SREE NARAYANEEYAM(H),KUDAMALOOR.P.O,AYMANAM,AT PRESENT AT IE-AYMANAM,AT PRESENT AT IE-C BLOCK,PENTAQUEEN,PADIVATTOM,VENNALA.P.O, COCHIN-682 024.` - `3 NATIONAL INSURANCE COMPANY C.S.I.SQUARE BUILDING,BAKER JUNCTION,KOTTAYAM,PIN-686 001.` - `4 * LEELA KURUP SREE NARAYANEEM(H),KUDAMALOOR.P.O,AYMANAM, KOTTAYAM-686 017. * ( RESPONDENT 2 AND 4 ARE RECORDED AS THE LEGAL HEIRS OF DECEASED FIRST RESPONDENT, AS PER ORDER DATED 02/08/2022 IN MACA 946/2012 ).` ``` BY ADVS.P.BIJIMON ``` - `E.M.JOSEPH` - `K.T.SEBASTIAN` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP`** ``` FOR ADMISSION ON 26.09.2022, THE COURT ON 09.05.2023 DELIVERED THE FOLLOWING: ``` MACA No. 946 of 2012 -:2:- ## MARY JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No. 946 of 2012 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9[th] day of May, 2023 ## JUDGMENT This appeal is originated from an award passed by Motor Accident Claims Tribunal, Kottayam (for short ‘the Tribunal’) on 12.10.2011 in OP(MV) No. 969/2007. Appellant is the petitioner/injured who had filed the Original Petition referred to, seeking for compensation for the injuries sustained by him in a motor accident occurred at 11 a.m. on 06.09.2006 at Mangadu Lane, Kottayam. The parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3, in accordance with their status before the Tribunal. 2. On the fateful day, the petitioner was riding a motorcycle bearing Registration No.KL-5H 3259 through IndraprasthamChirayilpadam Road and a WagonR car bearing registration No.KL-5S 9770 dashed against the same at Mangadu Lane and and thereby he sustained serious injuries. The accident was allegedly occurred due to the rash and negligent driving of the MACA No. 946 of 2012 -:3:- WagonR car by its driver. The petitioner was transported to Bharath Hospital, Kottayam and was treated there as inpatient. 3. The 1[st] respondent died during the pendency of the Original Petition and his legal heirs were brought on record as additional respondents. The car being insured with National Insurance Company Ltd., it was arrayed as the 3[rd] respondent in the Original Petition. Rs.2,00,000/- was also claimed as the compensation for the injuries sustained in the motor accident. 4. The 1[st] respondent was served with summons but failed to file any written statement. The 2[nd] respondent had raised contentions in the written statement filed by him that, the petitioner was not having any occupation or income at the relevant time of the motor accident and that the petitioner had not sustained injuries in the motor accident as averred. The policy coverage of the WagonR car and the authority of the 2[nd] respondent to drive the vehicle at the relevant time of the motor accident were admitted. 5. The 3[rd] respondent had also filed written statement disputing the claims of the petitioner on his age, occupation, monthly income and injuries sustained in the motor accident. MACA No. 946 of 2012 -:4:- Claim of compensation is also disputed for the reason that it is exorbitant. The negligence on the part of the 2[nd] respondent in causing the accident is denied. The accident was contended as occurred due to negligence of the petitioner himself. The policy existing for the car was obtained in the name of the 1[st] respondent who was not alive at the relevant time of the motor accident. Policy was obtained fraudulently suppressing the death of the insured, which is a material factum. The policy having been obtained in the name of a dead person, the insurer has no contractual obligation to compensate the petitioner. 6. Before the Tribunal the petitioner was examined as PW1 and Exts.A1 to A13 were marked in evidence. No oral evidence was adduced by the respondent but Ext.B1 was marked. The Tribunal found on the basis of the evidence that the motor accident was occurred due to the rash and negligent driving of the WagonR car by the 2[nd] respondent. The Tribunal also found from the evidence on record that the petitioner had sustained injuries in the motor accident occurred at 11 a.m. on 06.09.2006 and had undergone treatment for the injuries sustained. Tribunal has also arrived at a sum of Rs.36,679/- as the compensation MACA No. 946 of 2012 -:5:- payable to the petitioner and fixed the liability upon the additional respondents to the extent of the property inherited by them from the 1[st] respondent who is no more. The Tribunal had exonerated the 3[rd] respondent from liability to indemnify the insured and fixed the liability on the 2[nd] and the 4[th] respondents who are none other than the wife and the son of the deceased 1[st] respondent. 7. Challenge is mainly raised on the quantum of compensation stands awarded by the Tribunal, being inadequate and disproportionate to the injuries sustained. Challenge is also raised against the exoneration of the 3[rd] respondent from liability to indemnify the owner of the offending vehicle. 8. It is contended by Sri.Mathews Philip, the learned counsel for the appellant that though Rs.30,000/- has been claimed as the monthly income of the appellant, the Tribunal had fixed only Rs.3,500/- as the monthly income and compensation was calculated on its basis. According to him, the petitioner as PW1 has tendered oral evidence that he is an agriculturist and also conducting business in ready-made garments. According to him, his monthly income is Rs.30,000/-. According to him, the MACA No. 946 of 2012 -:6:- Tribunal discarded the oral evidence let in by the petitioner and opted to fix the monthly income as Rs.3,500/- on a notional basis. It is urged by the learned counsel that though the petitioner had suffered permanent disability on account of the serious injuries sustained by him in the motor accident, the Tribunal failed to award any sum as compensation for the reason that those aspects were not established from the evidence on record. 9. According to the learned counsel, a certificate assessing the permanent disability of the petitioner was obtained from a qualified Orthopedician and marked in evidence as Ext.A7. The petitioner was examined as PW1 and he categorically deposed about the permanent disability caused to him due to the injuries, but the Tribunal failed to award any compensation under that head and therefore, the petitioner is highly aggrieved. It is further contended that the petitioner was using a motorcycle to earn his livelihood and due to the disability suffered, he is not in a position to ride it and therefore, his earning capacity has been considerably reduced. It is pointed out by the learned counsel that the petitioner was under complete bed rest for two months MACA No. 946 of 2012 -:7:- on account of the injuries sustained in the motor accident, but the Tribunal considered only Rs.200/- per day for assessing compensation towards bystander expenses. According to the learned counsel, though a valid policy was existing for the vehicle covering the date of accident, the insurance company was exonerated by the Tribunal from liability for the reason that the 1[st] respondent, the insured passed away in the year 2005. According to the learned counsel, after the death of the 1[st] respondent in the year 2005 also, the insurance policy was renewed from time to time in his name itself and therefore, the Tribunal ought not to have absolved the insurer from its liability to indemnify the insured. 10. True that the petitioner as PW1 has deposed in tune with his claim in the Original Petition that he was an agriculturist as well as a businessman doing business in ready-made garments and getting Rs.30,000/- per month. It is pertinent to note that the petitioner failed to adduce evidence to corroborate his oral evidence. In the above circumstances that the Tribunal discarded his interested version and opted to fix Rs.3,500/- as his monthly income. Rs.3,500/- fixed by the Tribunal in the view MACA No. 946 of 2012 -:8:- of this Court is too low. This Court finds it reasonable to fix Rs.5,500/- as the monthly income of the petitioner. 11. The injuries of the petitioner were revealed from Ext.A3 the wound certificate, and Ext.A7 the treatment certificate, as fracture T12 vertebrae and proximal phalanx of left middle finger, multiple abrasions and contusions on right knee. In view of the fracture sustained to T12 vertebra, the petitioner must have to be under bed-rest for at least four months. The Tribunal had considered loss of earning for two months. This Court is inclined to enhance the period to four months. Thus Rs.22,000/(Rs.5,500 x 4) is arrived at. Rs.7,000/- stands awarded by the Tribunal when deducted from the sum arrived at now, the petitioner will get Rs.15,000/- as additional compensation. As compensation towards pain and suffering, the Tribunal had awarded only Rs.14,000/- and it being disproportionate to the injuries sustained, this Court is inclined to modify it to Rs.25,000/-. Therefore, the petitioner will get Rs.11,000/- as additional compensation. As compensation towards loss of amenities and enjoyments in life, the Tribunal had awarded Rs.8,000/- and it being inadequate, this Court is inclined to MACA No. 946 of 2012 -:9:- modify it to Rs.20,000/-. Therefore, the petitioner will get Rs.12,000/- as additional compensation. As compensation towards disability the Tribunal failed to award any sum as compensation. Considering the fracture sustained to 12[th] Vetebra, this Court is also inclined to take 2% as the disability. Petitioner has deposed that his left index finger could not be folded due to the fracture sustained to proximal phalanx. The respondent did not cross examine the petitioner on that version. Therefore, this Court is justified in considering 2% disability for the petitioner. The appropriate multiplier is 15. Rs.19,800 (Rs.5500 - x 12 x 15 x 2/100) is arrived at as the compensation payable towards permanent disability. 12. As compensation towards bystander expenses, Tribunal has awarded only Rs.200/-. This Court finds it reasonable to award Rs.4,000/- and therefore the petitioner will get Rs.3,800/as additional compensation. As compensation towards damages to clothing, this Court is inclined to grant Rs.500/- more. As compensation towards Extra Nourishment, this Court awards Rs.2,000/- and therefore the petitioner will get Rs.1,000/- as additional compensation. MACA No. 946 of 2012 -:10:- 13. When compensation is reassessed as above, Rs.63,100/- (Rupees Sixty three thousand one hundred only) is arrived at as the additional compensation and that is awarded. The additional compensation will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition til the date of realisation. 14. The Tribunal had exonerated the 3[rd] respondent from its liability to indemnify the insured for the reason that the insured was not alive at the relevant time of the motor accident. But it is pertinent to note from Ext.B1, the true copy of the policy marked in evidence from the side of the 3[rd] respondent that the offending vehicle was validly insured with the 3[rd] respondent in the name of the owner of the vehicle and the date of accident is covered within it’s validity period. The 3[rd] respondent has denied its liability to indemnify the insured for the reason that the insured of the vehicle died as early as in the year 2005, much prior to the date on which the motor accident was occurred. It is the vehicle that is insured with the 3[rd] respondent. The period referred to in Ext.B1 covers the date on which the motor accident was occurred and therefore, also the risk of the petitioner. True MACA No. 946 of 2012 -:11:- that the factum of death of the insured was suppressed while applying for renewal of the policy. The contract of insurance being an uberrimae fidei, the insurer also has a duty to verify material aspects while collecting premium for renewal purpose . 15. In United India Insurance Co.Ltd. v. Santro Devi & Others [Civil Appeal No.7009 of 2008] the facts involved were that one Atma Ram Sharma, the owner of a truck had hypothicated it to a Bank and he died sometime in 1991. But the certificate of insurance stands in his name itself. Despite the death of the said Atma Ram Sharma, renewal of the contract of insurance was done by the Bank from time to time. A motor accident was occurred with the involvement of the truck wherein the insurer had taken a stand of exoneration from liability to indemnify the insured. The court held in the case as follows : “19. xx xx xx If despite knowledge of the fact that Atma Ram Sharma had died in the year 1991, the insurance company, with its eyes wide open, had been accepting the amount of premium every year from the widow of the said late Arma Ram Sharma or from the Bank, in our opinion, a contract by necessary implication, had come into being. Even in a case of this nature, the doctrine of acceptance ‘sub silentio’ shall be applicable.” MACA No. 946 of 2012 -:12:- 16. It has been held by the High Court of Karnataka at Bangalore in Sharada v. Sri.D.Selvam [MFA No.65/17 connected with MFA No.1984/17], as follows : “21. On a conjoint reading of Section 50, 155 and 157 of the M.V. Act, the liability of the insurance company would continue, even if the owner of the vehicle dies or has in fact died prior to the accident. Having regard to the ultimate object of the Motor Vehicle Act that every vehicle plying on the road should be insured, the insurance company cannot attempt to escape its liability by contending that the insured was not alive when it had issued a policy.” 17. It has been held by the High Court of Punjab and Haryana in Om Prakash and Another v. Rajbiri and Others [1997 ACJ 547] a case in which identical facts as in the case on hand is involved that : “8. xx xx The Insurance Companies should not accept the premium with closed eyes. A duty is cast upon the Insurance Company to verify whether the owner of the vehicle is alive or not and also to verify the credentials of the person offering premium. Xx xx the mere fact that the owner of the vehicle had died cannot absolve the Insurance Company from its liability to pay compensation for the person that it is the vehicle which is being insured and not the owner of the vehicle.” MACA No. 946 of 2012 -:13:- 18. In the light of the dictums of the Apex Court and various other High Courts referred to above, this Court finds that the Tribunal had erred in exonerating the insurer from liability to indemnify the insurer and fixing the liability upon additional respondents 2 and 4 who are the legal heirs of the 1[st] respondent. Therefore, the finding of the Tribunal in that respect is only to be reversed. In the result, MACA stands allowed. Rs.63,100/- is awarded as additional compensation and the liability to pay the same is fixed on the insurer of the vehicle, who is the 3[rd] respondent in the appeal on hand. Sd/- MARY JOSEPH, JUDGE. ttb