MACA No. 951 of 2011; MACA No. 2164 of 2011; MACA No. 368 of 2012

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943** ## **MACA.No.951 OF 2011** **AGAINST THE AWARD IN OPMV 1042/2007 DATED 20-01-2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/3RD RESPONDENT:** **THE ORIENTAL ISURANCE CO.LTD. METRO PALACE, GROUND FLOOR, OPP. NORTH RAILWAY, STATION, ERNAKULAM, REPRESENTED BY ITS DULY AUTHORIZED OFFICER.** **BY ADV. SRI.VPK.PANICKER** ## **RESPONDENTS:** **1 BABU A.G S/O GOPALAN AKLIPARAMBIL HOUSE, VALLIVATTOM.P.O.,, THRISSUR DIST-680124. 2 ASOKAN.T.K. S/O. KUNJI VELU THEKKILAKATTIL HOUSE, THEKKUMKARA VILLAGE,, THIRATTAKKUNNU DESOM, THRISSUR DIST-680608. 3 RAJITHAN S/O. VENUGOPAL THAYYIL HOUSE P.O. PANANGAD, THRISSUR DIST-680001.** **R1 BY ADV. SRI.A.N.SANTHOSH R1-2 BY ADV. SRI.J.RAMKUMAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25-03-2021, ALONG WITH MACA.2164/2011, MACA.368/2012(C), THE COURT ON 07-04-2021 DELIVERED THE FOLLOWING:** MACA.951/2011, MACA.2164/2011, MACA.368/2012 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943** ## **MACA.No.2164 OF 2011** **AGAINST THE AWARD IN OPMV 1042/2007 DATED 20-01-2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/PETITIONER IN O.P(M.V):** **RAJITHAN S/O.VENUGOPAL, AGED 32 YEARS THAYYIL HOUSE, PANANGAD P.O., THRISSUR DISTRICT.** **BY ADVS. SMT.SADHANA KUMARI ESWARI SRI.N.AJITH : 1 BABU.A.G. S/O.GOPALAN, AKLIPARAMBIL HOUSE, VALLIVATTOM P.O., THRISSUR DISTRICT, PIN-680124. 2 ASOKAN T.K. S/O.KUNJI VELU, THEKKILAKKATTIL HOUSE, THEKKUMKARA VILLAGE, THRISSUR DISTRICT, PIN-680608. 3 THE MANAGER THE ORIENTAL INSURANCE COMPANY LTD., KODUNGALLUR BRANCH-680664.** ## **RESPONDENTS:** **R1, R3 BY ADV. SRI.VPK.PANICKER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25-03-2021, ALONG WITH MACA.951/2011, MACA.368/2012(C), THE COURT ON 07-04-2021 DELIVERED THE FOLLOWING:** MACA.951/2011, MACA.2164/2011, MACA.368/2012 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943** ## **MACA.No.368 OF 2012** **AGAINST THE AWARD IN OPMV 1031/2007 DATED 20-01-2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/3RD RESPONDENT:** **THE ORIENTAL INSURANCE CO. LTD. METRO PALACE, GROUND FLOOR, OPP.NORTH RAILWAY STATION, ERNAKULAM REPRESENTED BY ITS DULY AUTHORIZED OFFICER.** **BY ADV. SRI.VPK.PANICKER** ## **RESPONDENTS:** |**1**|**BABU.A.G.**| |---|---| ||**S/O.GOPALAN,**| ||**AKLIPARAMBIL HOUSE,**| ||**VALLIVATTOM P.O.,**| ||**THRISSUR DT-680 124.**| |**2**|**ASOKAN.T.K**| ||**S/O.KUNJI VELU,**| ||**THEKKILAKATTIL HOUSE,**| ||**THEKKUMKARA VILLAGE,**| ||**THIRATTAKKUNNU DESOM, THRISSUR DT.-680 608.**| |**3**|**SIJEESH**| ||**S/O.KANNAPPAN,**| ||**KANIYATH HOUSE,**| ||**MATHILAKAM P.O.,**| ||**THRISSUR DT.-680 685.**| MACA.951/2011, MACA.2164/2011, MACA.368/2012 4 ## **R1 BY ADV. SRI.A.N.SANTHOSH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25-03-2021, ALONG WITH MACA.951/2011, MACA.2164/2011, THE COURT ON 07-04-2021 DELIVERED THE FOLLOWING:** MACA.951/2011, MACA.2164/2011, MACA.368/2012 5 ## **`P.V.KUNHIKRISHNAN, J`** ## **`--------------------------------------M.A.C.A. No. 951 of 2011, M.A.C.A. No. 2164 of 2011, & M.A.C.A. No. 368 of 2012,`** ``` ------------------------------------------ Dated this the 7[th] day of April 2021 ``` ## **`JUDGMENT`** ``` These three appeals are connected and therefore, I am disposing these three appeals by a common judgment. M.A.C.A No. 951/2011 and 368/2012 are filed by the 3[rd] respondent in O.P(M.V) No. 1042/2007 and 1031/2007 respectively on the file of the Motor Accidents Claims Tribunal, Iringalakkuda. M.A.C.A No. 2164/2011 was filed by the petitioner in O.P(M.V) No. 1042/2007. (Hereinafter parties are mentioned in accordance to their rank before the Tribunal ``` ``` 2. The short facts are like this:- The petitioner in O.P(M.V). No. 1031/2007 was driving a motor cycle ``` MACA.951/2011, MACA.2164/2011, MACA.368/2012 6 ``` bearing Registration No. KL-47/2521 through Konathakunnu-Poovathumkadavu Public Road from west to east direction. The petitioner in O.P(M.V) No. 1042/2007 was a pillion rider of the motor cycle. When they reached Chirattakunnu, suddenly a tempo van bearing Registration No. KL-8/D 2485 coming from the opposite direction in a rash and negligent manner hit on the motor cycle and both petitioners thrown away and sustained serious injures. They filed the above claim petitions for compensation from the respondents. ``` ``` 3. Respondent Nos. 1 and 2 remained exparte in the cases. 3[rd] respondent filed a written statement admitting that the vehicle bearing Registration No. KL- 8/D 2485 tempo van had a valid policy from 08.03.2007 to 07.03.2008 in the name of the 1[st] respondent. But in the written statement, it is specifically contended that the 1[st] respondent was not having a valid driving licence to drive a light motor vehicle. ``` `4. To substantiate the case Exhibits A1 to A13` MACA.951/2011, MACA.2164/2011, MACA.368/2012 7 ``` were marked on the side of the petitioners. After going through the evidence and documents, the Tribunal found that the petitioners are entitled compensation and compensation was awarded separately. The 3[rd] respondent was directed to pay the compensation. Aggrieved by the direction to pay the compensation by the 3[rd] respondent, M.A.C.A No. 951/2011 and M.A.C.A No. 368/2012 was filed by the Oriental Insurance Co. Ltd. M.A.C.A. 2164/2011 was filed by the petitioner in O.P(M.V) No. 1042/2007 claiming enhancement of compensation. ``` `5. Heard the learned counsel for the appellants` `and the learned counsel for the respondents.` ## **`MACA No. 95/2011 & MACA No. 368/2012`** ``` 6. The main contention raised by the appellant/ 3[rd] respondent in M.A.C.A No. 951/2011 and M.A.C.A No. 368/2012 is that the driver of the offending vehicle was not having a valid driving licence. When such a contention was raised in appeal, the 1[st] respondent in ``` MACA.951/2011, MACA.2164/2011, MACA.368/2012 8 ``` MACA No. 951/2011, who is the owner of the offending vehicle filed I.A. No. 1/2021 producing an additional document. The first respondent produced the driving licence of the 2[nd] respondent. I.A. No.1/2021 is allowed and the motor driving licence produced as Annexure R1(a) is marked as Exhibit C1. I perused Exhibit C1. A perusal of the 3[rd] page of Exhibit C1, it is clear that the holder of the licence is licenced to drive throughout India a vehicle of “HGV Only” (Heavy Goods Vehicles Only). Admittedly, the offending vehicle in this case is a Light Motor Vehicle. The learned counsel for the Insurance Company made available the RC particulars of the offending vehicle, which will show that the unladen weight of the vehicle is only 1500, which means that it is a light motor vehicle as per Section 2(21) of the Motor Vehicles Act. The Heavy Goods Vehicle is defined in Section 2(16) as “any Goods Carriage, the gross vehicle weight of which or a tractor or a road roller unladen weight of either of which exceeds 12000 kilo ``` MACA.951/2011, MACA.2164/2011, MACA.368/2012 9 ``` grams”. Therefore, admittedly, the offending vehicle is a light motor vehicle. Section 10(2) of the Motor Vehicles Act (which was in force as on the date of the accident) is ``` ## `extracted hereunder:-` (1) Every learner’s licence and driving licence, except a driving licence issued under section 18, shall be in such form and shall contain such information as may be prescribed by the Central Government. (2) A learner’s licence or, as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, namely:— (a) motor cycle without gear; (b) motor cycle with gear; (c) invalid carriage; (d) light motor vehicle; (e) medium goods vehicle (f) medium passenger motor vehicle (g) heavy goods vehicle (h) heavy passenger motor vehicle (i) road roller (j) motor vehicle of specified description ``` 7.The learned counsel for the 1[st] respondent ``` ``` relying Section 7(7)(a) of the Motor Vehicles Act, 1939 submitted that a person who passes the test in driving a heavy goods vehicle shall be deemed also to have passed the test in driving any medium goods vehicle or light motor vehicle. The learned counsel submitted that, as per Ext. C1 licence, the petitioner obtained the ``` MACA.951/2011, MACA.2164/2011, MACA.368/2012 10 ``` license on 12.10.1982. Therefore, Motor Vehicles Act, 1939 is applicable in the case. The accident in this case happened on 24.06.2007. Therefore, the learned counsel submitted that, based on Section 7(7)(a) of the Motor Vehicles Act, 1939, the 2[nd] respondent is having a valid light motor vehicle licence also as on the date of accident. It is a matter to be decided based on the evidence. I think, in the facts and circumstances of the case, these two appeals can be allowed and remanded the cases to the tribunal for deciding the question of the liability of the 1[st] and 2[nd] respondent based on the contention of this appellant- insurance company to the effect that the 2[nd] respondent is not having a valid driving licence as on the date of the accident. At that time, the tribunal will consider the reliablity of Ext.C1 licence produced by the 1[st] respondent in this appeal. I make it clear that the compensation already awarded by the tribunal and the enhancement made by this Court in the connected appeal is final. I am remanding this ``` MACA.951/2011, MACA.2164/2011, MACA.368/2012 11 ``` matter only to decide the liability of the 1[st] and 2[nd] respondents based on the contentions raised by the 1[st] respondent relying Ext. C1 based on Section 7(7)(a) of the Motor Vehicles Act, 1939. The parties are allowed to adduce further evidence on this aspect. ``` ## **`MACA No. 2164/2011`** ``` 8.Now I will consider M.A.C.A. No.2164/2011 filed by the petitioner in OP(M.V) No. 1042/2007, which is filed for enhancement of compensation. The learned counsel raised two points. According to the learned counsel, the accident in this case occurred in the year 2007 and the Tribunal fixed the monthly income of the petitioner as Rs.2,000/- His claim was Rs.4,500/-. The learned counsel relied the judgment of the Apex Court ``` ``` inRamachandrappa v. The Manager, Royal Sundaram [2011(13) SCC 236].There is force in the argument of the learned counsel. Even a coolie will get an amount of Rs.4,500/- in the year 2004, in the light of the observations in Ramachandrappa’s case (Supra). ``` MACA.951/2011, MACA.2164/2011, MACA.368/2012 12 ``` The learned counsel submitted that, the petitioner was a Mason and he was getting Rs.4,500/- per month. This Court can safely accept the same and the compensation for disability can be reassessed based on the same. Then the learned counsel submitted that, as per the documents produced before the Tribunal, the petitioner was in hospital for 92 days, but the Tribunal assessed the bystanders expenses only for a period of 33 days. I think bystander’s expenses can be allowed for 92 days. The learned counsel for the petitioner fairly submitted that, the multiplier used by the Tribunal is ‘18’ and the correct multiplier is ‘17’. Therefore, the loss of disability is to be reassessed in the following manner:- ``` ``` Rs. 4500x12x17x25/100=2,29,500/- ``` ``` 9.From this amount, the amount already granted is to be deducted. Then the balance amount will be Rs. 2,29,500-1,08,000=1,21,500/-. ``` ``` 10. The bystander’s expenses is to be assessed for 92 days. That will be Rs.9,200/-. The amount already ``` MACA.951/2011, MACA.2164/2011, MACA.368/2012 13 ``` granted is Rs.3,300/- which is to be deducted. Then the balance amount will be Rs.9,200-3,300 = Rs.5,900/- . ``` ``` 11. Therefore, the petitioner in O.P(M.V) No.1042/2007 is entitled an enhanced compensation in the following manner; ``` ``` Loss of disability :Rs. 1,21,500/- Bystander’s expenses: Rs. 5,900/- ``` ``` ------------------ ``` ``` TotalRs.1,27,400/- ``` ``` 12. The petitioner is entitled interest at the rate of 7% p.a from the date of application till realisation. ``` ``` Therefore, these appeals are disposed of in the following manner:- ``` ``` 1.M.A.C.A. No.951/2011 and M.A,C.A. No. 368/2012 are allowed. The findings of the tribunal that the 3[rd] respondent is liable to pay the compensation to the petitioners are set aside and the matter is remanded to the tribunal. ``` `2. The Tribunal is directed to restore O.P.(MV)` `Nos. No.1042 and 1031 of 2007.` MACA.951/2011, MACA.2164/2011, MACA.368/2012 14 ``` 3.The tribunal is directed to allow the parties to adduce further evidence regarding the liability of the 1[st] and 2[nd] respondent based on the contention of the appellant/insurance company to the effect that the 2[nd] respondent is not having a valid driving licence. While considering the same, the tribunal will consider the validity of Ext.C1 licence and the applicablity of Section 7(7)(a) of the Motor Vehicles Act, 1939. I make it clear that the compensation already awarded and the enhanced compensation awarded by this Court is final. ``` ``` 4.The tribunal is directed to dispose of the O.P. (MV) Nos. No.1042 and 1031 of 2007 as expeditiously as possible, at any rate, within a period of four months from the date of receipt of a copy of judgment. ``` ``` 5.The parties will appear before the tribunal on 03.05.2021. ``` ``` 6.M.A.C.A. No.2164/2011 is allowed in part. The appellant/petitioner in OP(M.V) NO.1042/2007 is entitled an enhanced compensation of Rs.1,27,400/- with interest at the rate of 7% p.a., from the date of application till realisation. Liability to pay the compensation will be decided by the tribunal while passing final order in OP (MV) No. 1042/2007. ``` ``` 7.The appellant in M.A.C.A. No. 2164/2011 is not entitled interest for a period of 182 days for the ``` MACA.951/2011, MACA.2164/2011, MACA.368/2012 15 ``` enhanced compensation because this appeal is filed with a delay of 182 days. ``` ``` 8.Registry will forward Ext. C1 to the tribunal forthwith. ``` ## **`(Sd/-)`** ## **`P.V.KUNHIKRISHNAN`** ``` JUDGE ``` ``` avs/LU ```