High Court of KeralaSingle JudgeAppeals disposed of with directions: insurer’s ...
MACA Nos. 1547 & 1840 of 2013
Case / Petition Number:MACA Nos. 1547 & 1840 of 2013
Case Details & Bench
- Court
- High Court of Kerala
- Hon'ble Judges
- N. Nagareesh
- Judgment Date
- 2020-06-03
- Court Decision / Holding
- 1) The insurer in MACA No.1547/2013 is entitled to exercise its right to recover the compensation amount from respondents 1 and 2 (driver and owner) in line with Mukund Dewangan and related principles. 2) In MACA No.1840/2013, Vinodhkumar is entitled to an additional compensation of ₹86,890 along with interest at 7.5% p.a. from 28.12.2007 till realization; the insurer to make payment within 30 days. The appeals are disposed of accordingly, with the Tribunal’s negligence finding affirmed, the policy-based liability maintained, and recovery rights granted to the insurer.
- Final Disposition
- Appeals disposed of with directions: insurer’s right to recover against respondents 1 and 2 in MACA No.1547/2013; claimant in MACA No.1840/2013 awarded an additional ₹86,890 with 7.5% interest; payment to be made within 30 days; law and liability framework upheld.
Parties to the Case
Appellants / Petitioners
- THE NATIONAL INSURANCE CO. LTD., IRINJALAKKUDA
- VINODHKUMAR S/O GANGADHARAN, MANAKKADAN HOUSE, P.O. ALOOR, THRISSUR DISTRICT
Respondents
- P.J. GEO S/O. JOHNSON, PUDUKKADAN HOUSE, MARKER ROAD, IRINJALAKKUDA, THRISSUR DIST., PIN-680121
- JOSE S/O. PAILY, PALATTY HOUSE, MELOOR P.O., CHALAKUDY VIA, THRISSUR DIST., PIN-680311
- THE MANAGER, NATIONAL INSURANCE COMPANY, IRINJALAKUDA, THRISSUR DISTRICT-680121
Legal Representation & Advocates
Counsels for Petitioners
- • Adv. George Cherian (Sr.)
- • Adv. V. Binoy Ram
Counsels for Respondents
- • Adv. George Cherian (Sr.)
- • Adv. P.L. Joy
- • Adv. Latha Susan Cherian
- • Adv. K.S. Santhi
Case Synopsis & Summary
These two motor-accident claims appeals arise from the Motor Accidents Claims Tribunal, Irinjalakuda, awarding ₹2,68,805 as compensation for injuries sustained by a motorcycle rider in 2007 due to a bus owned by the first respondent and insured by the National Insurance Company. The insurer contends that the bus driver lacked a driving licence and badge, the policy may have contained fundamental breaches, and the insurer should be excused from liability, while seeking recovery rights from the vehicle owner and driver. The claimant-respondents urge higher compensation, arguing that the Tribunal failed to award disability-related loss and other heads like clothing, extra nourishment, bystander expenses and loss of earning capacity. The High Court, considering the evidence, holds that the driver was negligent and the insurer liable, but it also holds the insurer entitled to recover the awarded amount from the owner and driver, per Mukund Dewangan’s guidance, given the vehicle’s weight (over 7500 kg). In the claimant’s favor, the Court awards an additional ₹86,890 for disability–related loss of earning capacity and other heads, computes interest at 7.5% per annum, and directs payment within 30 days, while affirming the broader liability framework and recovery rights for the insurer."
Legal Doctrines & Maxims
- Mukund Dewangan v. Oriental Insurance Co. Ltd., 2017 (3) KLT 1000 — no separate licence endorsement required for driving a Light Motor Vehicle where GVW does not exceed 7500 kg; absence of badge is not a ground to repudiate liability.
- The insurer’s right to recover compensation from vehicle owner/drivers when policy conditions and licensing issues exist; vicarious liability principles as applied to motor vehicle insurance claims.
Submissions & Arguments
Contentions of Appellants / Petitioners
The insurer contends that, although the policy was current, the bus driver did not hold a valid driving licence and badge, and the vehicle surpasses the 7500 kg GVW threshold, rendering the insurer’s liability questionable; it further argues that no enforcement of such policy breaches absolves the owner, as recovery rights should be exercised to recover the awarded amount. The claimant-appellant in MACA No.1840, Vinodhkumar, argues that the 18% permanent disability and consequent earning-capacity loss were inadequately compensated by the Tribunal, that damages for clothing, transport, extra nourishment, and bystander expenses were under-awarded, and that the promotion prospects affected by disability warrant enhanced compensation, including a disability-related coefficient of loss of future earnings and medical expenses. The combined challenge seeks higher quantum and accountability for policy-breaching risk and impairment.
Contentions of Respondents
The respondents maintain that the driver lacked a badge/licence and that the insurer is entitled to recover the award amounts if fundamental breaches of policy conditions occurred. They argue the Tribunal rightly held negligence and insurer liability but erroneously ignored the absence of a driver’s badge/licence and the vehicle’s heavy weight as valid grounds for recovery from the insured/owner. They support the Tribunal’s assessment while contending for a direction that the insurer exercise recovery rights from respondents 1 and 2.
Cited Precedents (1)
| Case Name | Citation | Treatment | Explanation |
|---|---|---|---|
| Mukund Dewangan v. Oriental Insurance Co. Ltd. | 2017 (3) KLT 1000 | Positive | The High Court relies on this Apex Court ruling to justify the insurer’s recovery rights and to analyze the licensing/endorsement requirements in the context of heavy vehicles, applying it to conclude the insurer’s ability to recover from the vehicle owner and driver. |
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Extracted Judgment Text
Exact text extracted from official judgment records.
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR.JUSTICE N.NAGARESH**
**WEDNESDAY, THE 03RD DAY OF JUNE 2020 / 13TH JYAISHTA, 1942**
## **MACA.No.1547 OF 2013**
**AGAINST THE AWARD IN OP(MV) no.1570/2007 DATED 28-02-2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA**
## **APPELLANT:**
**THE NATIONAL INSURANCE CO. LTD. IRINJALAKUDA, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING, M.G.ROAD, KOCHI-35.**
**BY ADV. SRI.GEORGE CHERIAN (SR.)**
## **RESPONDENTS:**
**1 P.J. GEO S/O. JOHNSON, PUDUKKADAN HOUSE, MARKER ROAD, IRINJALAKUDA, THRISSUR DIST., PIN-680121. 2 JOSE S/O. PAILY, PALATTY HOUSE, MELOOR P.O., CHALAKUDY (VIA), THRISSUR DIST., PIN-680311.**
**BY ADVS. SRI. V. BINOY RAM SMT. K.S. SHANTHI SMT. LATHA SUSAN CHERIAN SRI. P.L.JOY SRI. M.A. GEORGE**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29-05-2020, ALONG WITH MACA.1840/2013, THE COURT ON 03-06-2020 DELIVERED THE FOLLOWING:**
L **MACA. Nos.1547 & 1840 OF 2013**
**2**
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR.JUSTICE N.NAGARESH**
**WEDNESDAY, THE 03RD DAY OF JUNE 2020 / 13TH JYAISHTA, 1942**
## **MACA.No.1840 OF 2013**
**AGAINST THE AWARD IN OP(MV) NO.1570/2007 DATED 28-02-2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA**
## **APPELLANT:**
**VINODHKUMAR S/O GANGADHARAN, MANAKKADAN HOUSE, P.O. ALOOR, THRISSUR DISTRICT BY ADV. SRI.V.BINOY RAM**
## **RESPONDENTS:**
|**1**|**P.J. GEO**|
|---|---|
||**S/O JOHNSON, PUDUKKADAN HOUSE, MARKET ROAD,**|
||**IRINJALAKUDA, TRISSUR DISTRICT-680121**|
|**2**|**JOSE**|
||**S/O.PAILY**|
||**PALATTY HOUSE, MELOOR PO, CHALAKUDY VIA,**|
||**THRISSUR DISTRICT-680311**|
|**3**|**THE MANAGER, NATIONAL INSURANCE COMPANY**|
||**IRINJALAKUDA, THRISSUR DISTRICT-680121**|
||**BY ADV. SRI.GEORGE CHERIAN SR.**|
||**BY ADV. SRI.P.L.JOY**|
||**BY ADV. SMT.LATHA SUSAN CHERIAN**|
||**BY ADV. SMT.K.S.SANTHI**|
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29-05-2020, ALONG WITH MACA.1547/2013, THE COURT ON 03-06-2020 DELIVERED THE FOLLOWING:**
L **MACA. Nos.1547 & 1840 OF 2013**
**3**
## **J U D G M E N T**
~ ~ ~ ~ ~ ~ ~ ~ ~
## _**Dated this the 3[rd] day of June, 2020**_
[M.A.C.A. Nos.1547 and 1840 of 2013]
The Insurer as well as the claimant in O.P.(MV) No.1570/2007 on the files of the Motor Accidents Claims Tribunal, Irinjalakuda are before this Court in appeals, aggrieved by Award dated 28.02.2013 of the Tribunal therein.
2. The parties are referred to as they are arrayed in the O.P.(MV) for convenience. The petitioner-claimant filed O.P.(MV) No.1570/2007 before the Tribunal stating that on 04.02.2007, while the claimant was riding a motorcycle, a bus driven by the 2[nd] respondent in a rash and negligent manner hit the claimant causing injuries to him. The 1[st] respondent before the Tribunal is the owner of the vehicle and the 3[rd] respondent is the Insurer. The claimant prayed that ₹5 lakhs be awarded to him as compensation.
L **MACA. Nos.1547 & 1840 OF 2013**
**4**
3. The 3[rd] respondent-Insurer alone contested the petition. The Insurer stated that though insurance policy was current, the bus driver had no driving licence and badge, and hence the insurer is not liable. The motorcycle on which the claimant was riding had no valid insurance policy. The accident was not informed to the Insurer. The Insurer disputed the age and occupation of the claimant and contended that the compensation claimed is highly excessive. It was also contended that the disability claimed by the claimant was without any basis.
4. The claimant produced Exts.A1 to A13 and examined PWs 1 and 2. The Insurer produced Ext.B1 insurance policy. After considering the evidence and materials on record, the Tribunal found that the 2[nd] respondent-driver was negligent and hence, the 1[st] respondent owner is vicariously liable. The Tribunal further found that the Insurer has not proved that there is a fundamental breach of policy condition which had contributed the accident. Therefore, the 3[rd] respondent
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**5**
cannot be absolved from liability. The Tribunal awarded an amount of ₹2,68,805/- with interest at 7.5% per annum to the claimant as compensation.
5. The learned counsel appearing for the claimant (appellant in MACA. No.1840/2013) stated that the accident occurred on 04.02.2007 while the claimant was a Police Constable drawing a monthly salary of ₹10,000/-. The claimant suffered serious injuries and incurred 18% disability. The disability has affected the promotional prospects of the claimant, who was a Police Constable requiring cent percentage physical fitness. Though the competent authorities assessed the disability of the claimant at 18%, the Tribunal did not grant any disability benefit to the claimant. The learned counsel for the appellant argued that the claimant himself got examined as PW1 and deposed that the promotional prospects of the claimant in the police service will be seriously affected. Therefore, the Tribunal ought to have granted sufficient disability benefits to the claimant. The Tribunal granted only ₹500/- towards
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transportation expenses, which is quite insufficient. The Tribunal did not award any amount for damage to clothing. The amounts awarded towards extra nourishment, loss of amenities and bystander expenses are also on the lower side. Therefore, the impugned Award is to be set aside and a higher amount of compensation is to be awarded to the claimant.
6. The Insurer, who is the appellant in MACA. No.1547/2013, on the other hand, argued that the driver of the offending vehicle did not possess valid driving licence or badge. Though IA No.3557/2011 was filed by the Insurer in the Tribunal seeking to produce the driving licence, the same was not produced. The vehicle driven by the 1[st] respondent in O.P.(MV) was having weight above 7500 Kg. for which any driver thereto should possess driving licence as also a badge. Ext.A3 charge sheet would show that the driver was not possessing badge. In the circumstances, the Insurer demanded that they be granted recovery rights to realise the Award amount from the owner of the vehicle.
L **MACA. Nos.1547 & 1840 OF 2013**
**7**
7. I have heard the learned counsel for the claimant (appellant in MACA. No.1840/2013) and the Standing Counsel for the Insurer (appellant in MACA. No.1547/2013).
8. The Award in O.P.(MV) No.1570/2007 would show that the Tribunal came to the conclusion of negligence of the 2[nd] respondent leading to the accident. The existence of insurance policy was also found in favour of the claimant. The Tribunal thereupon awarded ₹2,68,805/- as compensation to the claimant under the following heads:-
|**Sl.**<br>**No.**|**Head of Claim**|**Amount**<br>**claimed**<br>**(Rs.)**|**Amount**<br>**awarded**<br>**(Rs.)**|**Basis Vital details**<br>**in a nut shell**|
|---|---|---|---|---|
|1|Loss of earning (Total)|1,50,000/-|61,980/-|₹7,263 x 8 months<br>16 days|
|2|Medical and miscellaneous|90,000/-|1,36,725||
|3|Transportation expenses|10,000/-|500/-||
|4|Pain and suffering|35,000/-|20,000/-||
|5|Permanent disability|1,50,000/-|----||
|6|Damage to clothing|1,000/-|----||
|7|Extra nourishment|5,000|4,800/-||
|8|Loss of earnings and loss of<br>amenities in life|50,000/-|40,000/-||
|9|Bystander's expenses|9,000/-|4,800/-|₹100 x 48 days|
||Total|5,00,000/-|**2,68,805/-**|₹2,68,805/- along<br>with interest at the<br>rate of 7.5% p.a.<br>from 28.12.2007<br>till realisation.|
L **MACA. Nos.1547 & 1840 OF 2013**
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9. The argument of the counsel for the appellantclaimant is that though the claimant sustained 18% permanent disability and consequential loss of earning capacity, the Tribunal failed to appreciate the same and to any amount from disability. It is an admitted fact that the appellant was a Police Constable in AR Camp, Thrissur. He was on leave from 05.06.2007 to 16.03.2008 for a period of 9 months and 11 days, for treatment. The Medical documents produced before the Tribunal would show that the claimant had suffered malunited fracture of right tibia and fibula with cross union at fracture site, malunited fracture of the 3[rd] and 5[th] metatarsal, limitation of dorsiflexion of right ankle, partial ankylosis of right ankle, subtalar joint and joint of right foot, loss of soft tissue of right leg with ugly scar, weakness of dorsiflexion of right ankle, reduction of muscle endurance of right leg muscles, shortening of right lower leg component and tenderness at fracture sites. The claimant had ugly scar and deformity on his legs. Annexure-A11 medical certificate issued by the Orthopedic
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Surgeon, who was examined as PW2, would show that the claimant suffered 18% disability. However, the Tribunal found that the claimant is working in Police Department and he will be getting income even after retirement. The Tribunal found that the disability will affect the scope of getting additional income, but that depends upon the work the claimant chooses to do. On that score, the Tribunal held that there is no proof for reduction in income at present.
10. It has to be noted that the claimant was a Constable in Police Force, which indeed require extreme physical fitness. Ext.A11 disability certificate would show that the claimant had suffered 18% permanent disability which would affect the performance of the claimant in the Police Force. No further evidence is required to assume that the physical disability of the claimant would affect his career prospects in the Police Force. It would also adversely impact the earning capacity of the claimant post retirement, at the age of 56. The claimant, during his cross-examination, specifically stated that he had already
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lost one increment in his salary, which will have cascading effect in his salary and post retiral benefits. Therefore, the Tribunal ought to have considered the afore aspects and awarded compensation for the disability affecting the claimant's future earning capacity. Though the physical disability is assessed at 18%, it can reasonably be assessed that the percentage of disability for the purpose of reduction in future earning capacity will be about 10%. On that count, I am inclined to hold that the claimant shall be eligible for an additional compensation of ₹78,440/- (₹7,263/- x 12 x 9 x 10/100) towards compensation for permanent disability resulting in reduction in earning capacity.
11. The Tribunal did not award any amount under the head damage to clothing, though an amount of ₹1,000/- was claimed. As the accident was of the year 2007, this Court is inclined to award an amount of ₹750/- towards damage to clothing. The Tribunal awarded an amount of ₹500/- only towards transportation expenses as against the claim of ₹10,000/-. Taking note of the nature of injuries and
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treatment undergone by the claimant, the claimant is made eligible for an additional amount of ₹500/- towards transportation expenses.
12. The Tribunal granted only ₹4,800/- towards extra nourishment. Taking note of the fact that the claimant was an in-patient for 48 days, he is entitled to ₹2,400/- as additional compensation towards extra nourishment. The Tribunal granted only ₹4,800/- towards bystander expenses, for 48 days of hospitalisation. The accident being of the year 20007, the claimant is eligible for bystander expenses at the rate of ₹200/- per day. Accordingly, the claimant is awarded an additional compensation of ₹2,500/- towards bystander expenses.
13. Accordingly, I find that the claimant shall be made eligible for the following amounts as additional compensation.
|1.|Permanent disability resulting in loss of|₹78,440/-|
|---|---|---|
||earning capacity||
|2.|Compensation towards damaged clothing|₹750/-|
|3.|Additional<br>compensation<br>towards|₹500/-|
||transportation expenses||
L **MACA. Nos.1547 & 1840 OF 2013**
**12**
|4.|Additional compensation towards extra|₹2,400/-|
|---|---|---|
||nourishment||
|5.|Additional compensation towards bystander|₹4,800/-|
||expenses||
||Total additional compensation|**₹86,890/-**|
The claimant will be eligible for interest as awarded by the Tribunal for this additional compensation also.
14. As far as the appeal filed by the Insurer is concerned, the Hon'ble Apex Court in the judgment in _**Mukund Dewangan v. Oriental Insurance Co. Ltd.** [2017 (3) KLT 1000]_ has held that no separate endorsement on the licence is required to drive a transport vehicle of Light Motor Vehicle, the gross vehicle weight of which does not exceed 7500 Kg. In the case on hand, the offending vehicle is having more than 7500 Kg. gross vehicle weight and therefore the contention of the Insurer that since the Driver did not possess the requisite endorsement/badge, they are not liable to suffer the compensation, is justified. The Tribunal held that the Insurer has not proved that there is a fundamental breach of policy conditions which had contributed to the accident. The Tribunal further came to the
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**13**
conclusion that absence of badge itself is not a ground to repudiate the liability. Going by the judgment of the Apex court reported in _**Mukund Dewangan** (supra)_ , I find considerable force in the contention of the Insurer. Accordingly, I hold that the Insurer is entitled to exercise its right to recovery.
Accordingly, MACA No.1547/2013 and MACA No.1840/2013 are disposed of with the following directions:-
1. The appellant-Insurer in MACA No.1547/2013 will be eligible and entitled to exercise their right to recover the compensation amount awarded, from respondents 1 and 2.
2. The appellant-claimant in MACA No.1840/2013 is entitled to an additional compensation of ₹86,890/- along with interest at the rate of 7.5% per annum from the date of the O.P. (MV) till realisation. The 3[rd] respondent-Insurer is directed to make the payment within 30 days.
Sd/-
**N. NAGARESH, JUDGE**
aks/01.06.2020