MACA Nos. 1024 of 2015 & 2191 of 2016, Alavikutty v. The New India Assurance Co. Ltd. & Siddique

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY,THE 31ST DAY OF OCTOBER 2018 / 9TH KARTHIKA, 1940** **MACA.No. 1024 of 2015** **AGAINST THE AWARD IN O.P(MV)NO.1311/2012 of PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE DATED 09-12-2014** ## **APPELLANT/PETITIONER:** **ALAVIKUTTY,S/O ABOOBACKER,AGED 52 YEARS RESIDING AT CHALUMPATTIL HOUSE, P.O.KAYALAM VIA CHEROOPPA, KOZHIKODE.** **BY ADV. SRI.AVM.SALAHUDIN** ## **RESPONDENT/3RD RESPONDENT:** 1 **THE NEW INDIA ASSURANCE CO.LTD. DIVISIONAL OFFICE, IIND SHAFEER COMPLEX, OPPOSITE YMCA KANNUR ROAD, KOZHIKODE-673001.** **ADDL. 2 SIDDIQUE, RESIDING AT KUTTINNILAMMKORONATHU HOUSE, P.O.RAMANATTUKARA, KOZHIKODE 673 633.** **ADDL. 3 ABDUL RASHEED, S/O.ALIKUTTY RESIDING AT KANDAMTHODI (H), PANIKKARAPURAYI P.O.CHERUVAYOOR, VAZHAKKAD, MALAPPURAM-673 645.** **(ADDL.RESPONDENTS 2 AND 3 ARE IMPLEADED AS PER ORDER DTD. 25.8.2016 IN I.A.NO.2881/16)** **BY ADVS.** **SRI.P.MURALEEDHARAN FOR R1 SRI.G.P.SHINOD FOR R2 SRI.AJIT G.ANJARLEKAR SRI.GOVIND PADMANAABHAN SRI.RAM MOHAN.G.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28.3.2017, ALONG WITH MACA.2191/2016, THE COURT ON 31.10.2018 DELIVERED THE FOLLOWING:** M.A.C.A.Nos.1024 of 2015 & 2191 OF 2016 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY,THE 31ST DAY OF OCTOBER 2018 / 9TH KARTHIKA, 1940** **MACA.No. 2191 of 2016** **AGAINST THE AWARD IN O.P(MV)No.1311/2012 of PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE DATED 09-12-2014** ## **APPELLANT/1ST RESPONDENT:** **SIDDIQUE, AGED 39 YEARS, S/O KUNJI MUHAMMED, KUTTINNILAMMKORONATH HOUSE, RAMANATTUKARA PO, KOZHIKODE -673633.** **BY ADVS. SRI.G.P.SHINOD SRI.AJIT G.ANJARLEKAR SRI.GOVIND PADMANAABHAN SRI.MANU V. SRI.RAM MOHAN.G.** ## **RESPONDENTS/RESPONDENTS 2 AND 3:** - **1 ALAVIKUTTY, S/O ABOOBACJER, AGED ABOUT 56 YEARS, CHALUPATTIL HOUSE, KAYALAM (PO), CHEROOPPA (VIA), KOZHIKODE-673661** **2 ABDUL RASHEED S/O ALIKUTTY, AGED ABOUT 29 YEARS, KANDAMTHODI (H), PANIKKARAPURAYI, PO. CHERUVAYOOR, VAZHAKKAD, MALAPPURAM-673645** M.A.C.A.Nos.1024 of 2015 & 2191 OF 2016 3 **3 THE NEW INDIA ASSURANCE COMPANY LIMITED DIVISIONAL OFFICE II, SHAFEER COMPLEX, OPP. YMCA, KANNUR ROAD, KOZHIKODE-673001.** **BY ADVS.SRI.ARUN.B.VARGHESE FOR R2 SRI.JAYKAR.K.S. SRI.K.V.SACHIDANANDAN SMT.M.RAMYA RAMACHANDRAN SRI.G.BALU SRI.P.MURALEEDHARAN FOR R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28.3.2017, ALONG WITH MACA.1024/2015, THE COURT ON 31.10.2018 DELIVERED THE FOLLOWING:** ## **JUDGMENT** ## **Ravikumar, J.** The captioned appeals are directed against the judgment and award dated 9.12.2014 passed by the Principal Motor Accidents claims Tribunal, Kozhikode in O.P.(M.V)No.1311 of 2012. The former appeal has been filed by the injured petitioner therein seeking enhancement of the quantum of compensation awarded as per the impugned award and the latter appeal has been filed by the first respondent therein aggrieved by the fastening of liability on him to pay the compensation to the appellant in the former appeal viz., the petitioner as he was not the owner of the offending vehicle at the time of the accident and much before its occurrence he had transferred the ownership of the vehicle to one Abdul Kalam Azad, Kandamthodika M.A.C.A.Nos.1024 of 2015 & 2191 OF 2016 4 House, Cheruvayur.P.O., Malappuram. He has also raised various other contentions. For the sake of convenience, the parties are referred to hereafter in this judgment in accordance with their rank and status in the claim petition. 2. On 7.3.2012 at about 11.30 a.m. the petitioner was standing by the side of Kanniparamba-Mankavu public road. The offending vehicle viz., lorry bearing registration No.KL-10-AB-6987, driven by the 2[nd] respondent knocked down the petitioner and he sustained serious injuries. It is alleging negligence on the part of the second respondent as the cause of the accident the claim petition was filed under Section 166 of Motor Vehicles Act claiming a compensation of Rs.5,00,000/-. The Tribunal as per the impugned award granted an amount of Rs.3,02,000/- with interest at the rate of 8% per annum from the date of petition till the date of realisation. The 3[rd] respondent insurance company was directed to deposit the amount awarded within 30 days from the date of the award with liberty to recover the same from the first respondent viz., the appellant in the latter appeal. It is in the said circumstances that the petitioner and the first respondent filed the above appeals with the aforementioned prayers. 3. We have heard the learned counsel for the appellant/petitioner the learned counsel appearing for the first M.A.C.A.Nos.1024 of 2015 & 2191 OF 2016 5 respondent who is the appellant in the latter appeal as also the learned counsel for the 3[rd] respondent insurance company. 4. We will firstly consider the tenability of the contention raised in the latter appeal. The appellant therein was the first respondent before the Tribunal and he was arrayed as a respondent describing him as the owner of the Lorry bearing Reg.No.KL-10-AB6987. The specific case of the appellant in the appeal is that much prior to the accident in question the ownership of the said vehicle was transferred. There was no material before the Tribunal revealing the said aspect. At any rate, the transferee of the said vehicle was not a party before the Tribunal as also in this appeal. In this appeal the appellant has produced the registration particulars of the vehicle bearing Reg.No.KL-10-AB-6987 issued by the Joint RTO, Malappuram, along with I.A.No.2637 of 2016. It would reveal that the appellant had remained as the owner of the said vehicle only up to 18.7.2011 and thereafter its ownership was transferred to the aforesaid Abdul Kalam Azad, as per the said document. Along with I.A.No.3514 of 2016 the appellant has produced the driving licence particulars of the second respondent who was driving the said vehicle at the time of the accident. The said driving licence particulars were issued by the Motor Vehicle Inspector, Malappuram and in fact, what is produced along with M.A.C.A.Nos.1024 of 2015 & 2191 OF 2016 6 I.A.No.3514 of 2016 is only a photocopy. Relying on the said driving licence it is contended by the appellant therein that the second respondent was authorised to drive heavy goods vehicles with effect from 23.9.2010 and that the normal validity period of licence to drive a heavy goods vehicle would be three years and since the accident in question had occurred on 7.3.2012 which was within a period of three years from 23.9.2010 there was no justification to saddle the liability on him to compensate the petitioner/the appellant in the former appeal. Though the learned counsel for the appellant sought time to produce the original of the said driving licence so far the same has not been produced. It is also contended that since there was no dispute regarding the existence of a valid insurance policy in respect of the aforesaid vehicle the change of ownership would have no relevancy at all. Essentially, the said contention is raised based on the provisions under Section 157 of the Motor Vehicles Act. Going by the same, where a person in whose favour the certificate of insurance has been issued in accordance with the provisions of Chapter XI of the M.V. Act transfers to another person the ownership of the vehicle in respect of which such insurance was taken, together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate should be deemed to have been transferred in favour of the M.A.C.A.Nos.1024 of 2015 & 2191 OF 2016 7 person to whom the motor vehicle was transferred with effect from the date of its transfer. In such circumstances, the change of ownership would pale into insignificance and therefore, the factum of change of ownership is absolutely immaterial, it is contended. It is also contended that in such circumstances, the insurance company could not wriggle out of the statutory liability especially when the injured is a third party. The learned counsel would further submit that since revenue recovery proceedings initiated as part of the execution of the award passed in the above mentioned claim petition, was ordered to be kept in abeyance by this Court it is liable to be continued till the resolution of the dispute regarding the ownership of the vehicle concerned. At the first blush, the contentions raised by the appellant appear to be attractive. But, at the same time, it is relevant to note that the registration particulars of the vehicle bearing Reg.No.KL-10-AB6987 produced along with I.A.No.2637 of 2016 was issued by Joint RTO, Malappuram. Hence, it is a matter of evidence and it could be proved only after bringing it on record, in accordance with law. The driving particulars of the second respondent produced along with I.A.No.3514 of 2016 is only a photocopy of its original. Though these materials are relevant for the fair and proper disposal of the above appeal we are of the view that without bringing them legally on record M.A.C.A.Nos.1024 of 2015 & 2191 OF 2016 8 in accordance with law, they cannot be acted upon. Though the materials are relevant for consideration, the fact is that they were not produced and brought on record in accordance with law before the Tribunal. It is also to be noted that no foundation was laid for producing a secondary evidence as regards the photocopy of the driving licence particulars of the second respondent. The long and short of the discussion is that though the aforesaid documents are relevant for the purpose of deciding the appeal we are of the considered view that without examining the persons competent to prove them they could not be admitted in evidence. As regards the driving licence particulars the question as to whether the photocopy of the driving licence could be admitted in evidence has also to be considered based only on proper pleading on the issue of secondary evidence. It is a fact that the first and second respondents had remained absent and were set ex parte, before the Tribunal. Hence, under normal circumstances, we would not interfere with the matter especially in the absence of a proper and satisfactory reason for remaining ex parte before the Tribunal. True that, the reason assigned herein in that regard is not satisfactory. But, at the same time, the certified copy of the driving particulars would go to show that the appellant ceased to be the owner of the vehicle in question on 18.7.2011. In the absence of the document revealing the M.A.C.A.Nos.1024 of 2015 & 2191 OF 2016 9 driving particulars necessarily, the liability to compensate the petitioner would fall on the shoulders of the owner of the vehicle. This is what happened as of now. Going by the document produced along with I.A.No.2637 of 2016 viz., the registration particulars, one Abdul Kalam Azad was the owner of the vehicle at the time of the accident. But, he was not a party before the Tribunal as also before this Court. If ultimately violation of policy condition is established then also the liability would fall on the registered owner of the vehicle. In fact, the appellant was fastened with the liability to compensate the petitioner upon the finding of breach of conditions in the policy owing to the driving of the vehicle by the second respondent without a valid driving licence. In the contextual situation, it is also relevant to refer to Section 160 of the M.V. Act which reads thus:- “ **160. Duty to furnish particulars of vehicle involved in accident** .- A registering authority or the officer-incharge of a police station shall, if so required by a person who alleges that he is entitled to claim compensation in respect of an accident arising out of the use of a motor vehicle, or if so required by an insurer against whom a claim has been made in respect of any motor vehicle, furnish to that person or to that insurer, as the case may be, on payment of the prescribed fee any information at the disposal of the said authority or the said police officer relating to the identification marks and other particulars of the vehicle and the name and address of the person who was using the vehicle at the time of the accident or was injured by it and the property, if any, damaged in such form and within such time as the Central M.A.C.A.Nos.1024 of 2015 & 2191 OF 2016 10 Government may prescribe.” A perusal of the afore-extracted provision would reveal that if the petitioner had taken due diligence in collecting the particulars regarding the vehicle involved in the accident it would have enabled him to bring the appropriate parties on record. In view of the aforementioned situation impleadment of the actual registered owner of the vehicle would become necessary. Without considering all such aspects liability could not be fixed on the proper person. This is because if the violation of conditions of policy is established it would enable the insurer to claim the right to recovery after satisfying the award in favour of the third party. In short, in view of the peculiar circumstances obtained in this case it is only befitting to remand the matter without admitting the documents sought to be produced along with the aforementioned interlocutory applications and giving liberty to the parties to produce such documents and bring them on record legally before the Tribunal so as to enable the Tribunal to decide the question of liability appropriately. 5. The next question is whether the aforesaid view can be a reason for declining consideration of the appeal preferred by the injured petitioner seeking enhancement of the quantum of compensation at this stage. In this context, it is evident that the Tribunal had granted the M.A.C.A.Nos.1024 of 2015 & 2191 OF 2016 11 right to recovery to the insurer of the offending vehicle. Hence, we do not find any legal impediment in considering this appeal. 6. As noticed hereinbefore, the claim petition was filed seeking a compensation of Rs.5,00,000/- and the Tribunal, as per the impugned award, granted an amount of Rs.3,02,000/- as compensation with interest at the rate of 8% per annum from the date of petition till realisation. True that the third respondent viz., the insurance company, the first respondent in the former appeal had taken up a contention that the Tribunal had gone wrong in holding the second respondent negligent in driving and arriving at a finding that it is his negligence that caused the accident. But, it is a fact that despite an adverse finding the insurance company or the respondents concerned moved appeal challenging the same. That apart, it is to be noted that in Crime No.860/2012 of City Traffic Police Station, Kozhikode registered in connection with the accident in question Ext.A9 final report was laid. In Ext.A9 the second respondent was arrayed as the accused. As noticed hereinbefore, to decide the question of negligence no other material was available before the Tribunal and none of the respondents adduced any oral or documentary evidence before the Tribunal on the issue. In such circumstances, in the light of the decision of a Division Bench of this Court in **New India Assurance Co. Ltd. v. Pazhaniammal** M.A.C.A.Nos.1024 of 2015 & 2191 OF 2016 12 **(2011 (3) KLT 648)** we do not find any reason to hold that the Tribunal went wrong in holding that the second respondent was negligent and it was owing to his negligence that the accident had occurred. 7. In the accident the appellant/petitioner had sustained comminuted fracture on mandible, facial nerve palsy, fracture left clavicle, fracture right lateral wall of orbit. Ext.A2 is the wound certificate. Exts.A3 to A5 are the reference cards issued from Medical College Hospital, Kozhikode revealing his treatment there as inpatient. Ext.A7 is the discharge summary issued from MIMS Hospital, Kozhikode showing that he had been an inpatient there for five days. Ext.X1 case record produced from Medical College Hospital, Kozhikode would reveal the details of the treatment underwent by the appellant. Based on the said documents the Tribunal arrived at the conclusion that in the accident in question the appellant/petitioner had sustained serious injuries. Ext.C1 disability certificate issued by a duly constituted Medical Board at Medical College Hospital, Kozhikode would reveal that he had incurred 24% permanent disability due to the injuries sustained in the accident. The extent of disability certified under Ext.C1 was accepted in toto by the Tribunal. The appellant/petitioner was aged 50 years at the time of the accident. Treating him as a person belonging M.A.C.A.Nos.1024 of 2015 & 2191 OF 2016 13 to the age group of 51-55 the Tribunal identified the proper multiplier as `11'. The monthly income was fixed as Rs.4,500/- for calculation purposes in the absence of evidence revealing the occupation and income. In such circumstances, we do not find any reason to hold that the Tribunal had committed an error in fixing the monthly income on notional basis. Then the question is whether the fixation of the monthly income as Rs.4,500/- invites interference. 8. In the claim petition he claimed to be a general merchant earning Rs.10,000/- per month. As noticed hereinbefore, no evidence was adduced to establish the averments regarding occupation and income. In this context, it is to be noted that even in respect of a coolie who suffered an accident in the year 2004 the Hon'ble Apex Court in **Ramachandrappa** v. **Manager, Royal Sundaram Alliance Insurance Company Limited ((2011) 13 SCC 236)** took the monthly income as Rs.4000/-. The accident in question had occurred on 7.3.2012 and the appellant was then aged 50 years. Taking into account the age of the appellant at the time of the accident and the year of the accident we are of the view that Rs.9,000/- can be taken as his income for calculation purposes. In such circumstances, the compensation for permanent disability (the Tribunal had granted it under the head `loss of future earning power') has to be re-assessed by M.A.C.A.Nos.1024 of 2015 & 2191 OF 2016 14 substituting the monthly income as the other relevant factors therefor require no interference. On such re-assessment the appellant would be entitled to get an amount of Rs.1,42,560/- more. The Tribunal fixed the period for loss of earnings as four months. Taking into account the nature of the injuries revealed from the aforementioned record we are inclined to take the period of loss of earnings as six months. In view of the refixation of the monthly income as also the period of loss of earnings under the said head the amount payable is Rs.54,000/-. After deducting the amount already granted by the Tribunal the appellant is entitled to get an amount of Rs.36,000/- additionally under that head. Despite the persuasive arguments of the learned counsel we do not find any reason to interfere with the fixation of compensation under any other heads. In the circumstances, the appellant would be entitled to get an amount of Rs.1,78,560/- additionally as compensation. The said amount will carry interest at the rate of 8% per annum from the date of the petition till realisation. The first respondent in the former appeal viz., the third respondent in the claim petition shall deposit the amount covered by this judgment as also the impugned award with interest, if not already deposited, within a period of two months from the date of receipt of a copy of this judgment. If the amount granted as per the impugned award was already paid the balance amount based on this M.A.C.A.Nos.1024 of 2015 & 2191 OF 2016 15 judgment alone need be paid. The right of recovery of the first respondent herein viz., the third respondent insurance company would certainly be subject to the fixation of liability, to be made by the Tribunal. We have already arrived at the conclusion that in view of the peculiar circumstances detailed in this judgment M.A.C.A.2191 of 2016 invites interference and O.P.(M.V)No.1311 of 2012 requires remand solely for the purpose of fixing the liability to pay compensation, in accordance with law. In the above circumstances, M.A.C.A.No.1024 of 2016 is allowed. The appellant is entitled to get an amount of Rs.1,78,560/additionally. The said amount will carry interest at the rate of 8% per annum from the date of the petition till realisation. In M.A.C.A.No.2191 of 2016, O.P.(M.V)No.1311 of 2012 is remanded to the Principal Motor Accidents claims Tribunal, Kozhikode for the sole purpose of fixation of liability to pay compensation. In other words, the question of compensation shall not be revisited while considering the claim petition, on remand. As noticed hereinbefore, the parties would be at liberty to adduce evidence for the said purpose of fixation of liability before the Tribunal and if necessary, appropriate amendment to the rival pleadings can also be granted, in that regard. Taking into account the fact that the O.P.(M.V) is of the year 2012 the parties are directed to appear M.A.C.A.Nos.1024 of 2015 & 2191 OF 2016 16 before the Tribunal on 21.11.2018. The Tribunal shall consider and pass orders on the original petition within a period of five months thereafter. The parties shall bear their respective costs. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **K.P.JYOTHINDRANATH Judge** TKS