MACA Nos. 2513/15; 2511/2015; 2514/2015; 2515/2015 (In the High Court of Kerala at Ernakulam)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN`** ``` WEDNESDAY, THE 8[TH] DAY OF FEBRUARY 2023 / 19TH MAGHA, 1944 ``` ## **`MACA NO. 2513 OF 2015`** ``` AGAINST THE COMMON AWARD DATED 27.9.2013 IN OP(MV) NO.800/2007 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD ``` ## **`APPELLANT:`** ``` A.SHERIN SITHARA, AGED 19 YEARS D/O. ABDUL JALEEL, SANTHI NAGAR COLONY, S-10A, YAKKARA, PALAKKAD. ``` ``` BY ADVS. SRI.ANIL S.RAJ SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. SRI.J.VIVEK GEORGE ``` ## **`RESPONDENTS:`** - `1 P.T.DAVIS, S/O. THOMAN, PUNNELI PARAMBIL HOUSE, THAZHEKKAD POST, THRISSUR-680 697. (OWNER OF LORRY KL-8/AF-7333).` - `2 MOHANAN, S/O. DAMODARAN, KANNANKATTIL HOUSE, KUZHIKKATTIL, KOMBODINJAMAKAL, THAZHEKKAD, THRISSUR-680 697. (DRIVER OF LORRY KL-8/AF 7333).` - `3 ORIENTAL INSURANCE COMPANY LIMITED PALAKKAD-678 013. (INSURER OF LORRY KL-8/AF 7333).` - `4 NASEEM BANU, W/O. SHAMSUDEEN, H.NO.30/1327, EAST DEVAGIRI, MEDICAL COLLEGE P.O., KOZHIKODE-673 008. (OWNER OF CAR KL-11/G 6664).` - `5 ABDUL JALEEL, S/O. MOHAMMED, RESIDING AT SANTHI NAGAR COLONY, S-10 A, YAKKARA, P.ALAKKAD-678 701.(DRIVER OF CAR KL-11/G 6664).` - `6 THE NEW INDIA ASSURANCE COMPANY LIMITED, PALANA ROAD, THRISSUR-680 020.(INSURER OF CAR KL-11/G 6664).` MACA 2513/15 & conn. 2 ``` BY ADVS. SRI.M.C.GOPI SMT.ANILA PETER SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. SMT.P.K.SANTHAMMA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.02.2023, ALONG WITH MACA.2511/2015, 2514/2015 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 2513/15 & conn. 3 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN`** ``` WEDNESDAY, THE 8[TH] DAY OF FEBRUARY 2023 / 19TH MAGHA, 1944 MACA NO. 2511 OF 2015 ``` ``` AGAINST THE COMMON AWARD DATED 27.9.2013 IN OP(MV) NO.824/2007 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD ``` ## **`APPELLANT:`** ``` YASMIN A.A., AGED 41 YEARS, WIFE OF ABDUL JALEEL, SANTHI NAGAR COLONY, S-10A, YAKKARA, PALAKKAD. ``` ``` BY ADVS. SRI.ANIL S.RAJ SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. SRI.J.VIVEK GEORGE ``` ## **`RESPONDENTS:`** - `1 P.T.DAVIS, S/O. THOMMAN, PUNNELI PARAMBIL HOUSE, THAZHEKKAD POST, THRISSUR-680697 (OWNER OF LORRY, KL-8/AF-7333).` - `2 MOHANAN, S/O. DAMODARAN, KANNANKATTIL HOUSE, KUZHIKKATTIL, KOMBODINJAMAKAL, THAZHEKKAD, THRISSUR-680697 (DRIVER OF LORRY KL-8/AF-7333).` - `3 ORIENTAL INSURANCE COMPANY LIMITED PALAKKAD 678013 (INSURER OF LORRY KL-8/AF-7333).` - `4 NASEEM BANU, W/O. SHAMSUDHEEN, H.NO. 30/1327, EAST DEVAGIRI, MEDICAL COLLEGE P.O., KOZHIKKODE 673008 (OWNER OF CAR KL-11-G-6664).` - `5 ABDUL JALEEL, S/O. MUHAMMED, RESIDING AT SANTHI NAGAR COLONY, S-10 A, YAKKARA, PALAKKAD 678701 (DRIVER OF CAR KL-11G-6664).` - `6 THE NEW INDIA ASSURANCE COMPANY LIMITED PALANA ROAD, THRISSUR 680020 (INSURER OF CAR KL11G—6664).` MACA 2513/15 & conn. 4 ``` BY ADVS. SRI.M.C.GOPI SMT.ANILA PETER SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. SMT.P.K.SANTHAMMA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.02.2023, ALONG WITH MACA.2513/2015 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 2513/15 & conn. 5 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 8[TH] DAY OF FEBRUARY 2023 / 19TH MAGHA, 1944 MACA NO. 2514 OF 2015 ``` ``` AGAINST THE COMMON AWARD DATED 27.9.2013 IN OP(MV) ``` ``` NO.813/2007 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD APPELLANT: ``` ``` A.SHABNA, AGED 23 YEARS, DAUGHTER OF ABDUL JALEEL, SANTHI NAGAR COLONY S-10A, YAKKARA, PALAKKAD. ``` ``` BY ADVS. SRI.ANIL S.RAJ SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. SRI.J.VIVEK GEORGE ``` ## **`RESPONDENTS:`** - `1 P.T.DAVIS, S/O.THOMAN, PUNNELI PARAMBIL HOUSE, THAZHEKKAD POST, THRISSUR 680 697, (OWNER OF LORRY KL-8/AF-7333)` - `2 MOHANAN, S/O DAMODARAN KANNANKATTIL HOUSE KUZHIKKATTIL KOMBODINJAMAKAL, THAZHEKKAD, THRISSUR 680 697, (DRIVER OF LORRY KL-8/AF-7333)` - `3 ORIENTAL INSURANCE COMPANY LIMITED PALAKKAD 678 013 (INSURER OF LORRY KL-8/AF-7333)` - `4 NASEEM BANU, W/O.SHAMSUDEEN, H.NO.30/1327, EAST DEVAGIRI, MEDICAL COLLEGE P.O., KOZHIKKODE 673 008 (OWNER OF CAR KL-11G-6664)` - `5 ABDUL JALEEL, S/O.MOHAMMED, RESIDING AT SANTHI NAGAR COLONY, S-10 A, YAKKARA, PALAKKAD 678 701, (DRIVER OF CAR KL-11G-6664)` - `6 THE NEW INDIA ASSURANCE COMPANY LIMITED, PALANA ROAD, THRISSUR 680 020, (INSURER OF CAR KL-11G6664)` MACA 2513/15 & conn. 6 ``` BY ADVS. SRI.M.C.GOPI SMT.ANILA PETER SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. SMT.P.K.SANTHAMMA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.02.2023, ALONG WITH MACA.2513/2015 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 2513/15 & conn. 7 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 8[TH] DAY OF FEBRUARY 2023 / 19TH MAGHA, 1944 MACA NO. 2515 OF 2015 ``` ``` AGAINST THE COMMON AWARD DATED 27.9.2013 IN OP(MV) ``` ## **`NO.823/2007 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD APPELLANT:`** ``` A. SHEBIN MUHAMMED, AGED 25 YEARS SON OF ABDUL JALEEL, SANTHI NAGAR COLONY, S-10A, YAKKARA, PALAKKAD. ``` ``` BY ADVS. SRI.ANIL S.RAJ SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. SRI.J.VIVEK GEORGE ``` ## **`RESPONDENTS:`** - `1 P.T. DAVIS, S/O.THOMAN, PUNNELI PARAMBIL HOUSE, THAZHEKKAD POST, THRISSUR 670 697 (OWNER OF LORRY KL-8/AF-7333).` - `2 MOHANAN, S/O.DAMODARAN, KANNANKATTIL HOUSE, KUZHIKKATTIL, KOMBODINJAMAKAL, THAZHEKKAD, THRISSUR 680 697 (DRIVER OF LORRY KL-8/AF-7333)` - `3 ORIENTAL INSURANCE COMPANY LIMITED PALAKKAD 678 013 (INSURER OF LORRY KL-8/AF-7333).` - `4 NASEEM BANU, W/O.SHAMSUDEEN, H.NO.30/1327, EAST DEVAGIRI, MEDICAL COLLEGE P.O., KOZHIKKODE 673 008 (OWNER OF CAR KL-11G-6664)` - `5 ABDUL JALEEL, S/O.MOHAMMED, RESIDING AT SANTHI NAGAR COLONY, S-10 A, YAKKARA, PALAKKAD 678 701, (DRIVER OF CAR KL-11G-6664)` - `6 THE NEW INDIA ASSURANCE COMPANY LIMITED PALANA ROAD, THRISSUR 680 020 (INSURER OF CAR KL11G-6664)` MACA 2513/15 & conn. 8 ``` BY ADVS. SRI.M.C.GOPI SMT.ANILA PETER SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. SMT.P.K.SANTHAMMA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.02.2023, ALONG WITH MACA.2513/2015 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 2513/15 & conn. 9 ## **`JUDGMENT`** The afore appeals arise out of a common Award issued by the Motor Accidents Claims Tribunal, Palakkad (‘Tribunal’ for short); and are, therefore, being disposed of together through this judgment, with the consent of all sides. 2. The admitted facts are that all the appellants were travelling in a car owned by Smt.Naseem Banu, driven by Sri.Abdul Jaleel and which was insured by New India Assurance Company Ltd. (‘NIA’ for short); when it collided with a lorry owned by Sri.P.T.Davis, driven by Sri.Mohanan, and insured by the Oriental Insurance Company (‘OIC’ for short). 3. The appellants suffered injuries consequent to the accident and preferred individual Original Petitions before the Tribunal, which have all been allowed; but exonerating the ‘NIA’, finding that the driver of the car being negligent, said Insurance Company would not be responsible because, the premium paid for the policy insured by them did not cover gratuitous passengers. 4. The appellants impugn the Award of the Tribunal, both MACA 2513/15 & conn. 10 on the ground that the compensation awarded is exiguous and that it erred in exonerating the ‘NIA’. 5. I have heard Smt.K.N.Rajani – learned counsel appearing for the appellants in all these cases; Smt.P.K.Santhamma - learned Standing Counsel for the ‘NIA’ and Sri.P.Jacob Mathew - learned Standing Counsel for the ‘OIC’. I have considered the evidence and documents on record – copies of which have been handed over across the Bar by the learned counsel for the parties on the express consent that it can be acted upon by this Court without dispute. 6. On the question of exoneration of NIA, the learned counsel for the appellants – Smt.K.N.Rajani, vehemently argued that, when it is unequivocally conceded that the policy issued by the ‘NIA’ was a ‘Package Policy’, it was unnecessary for the Tribunal to have caused an enquiry, as to whether an additional premium had been paid by its owner to cover gratuitous passengers. She argued that, this was totally unnecessary and untenable, because when the policy is conceded to be a ‘Package Policy’, it certainly covers gratuitous passengers also; and that this MACA 2513/15 & conn. 11 has been well settled in various judgments, including in National Insurance Co.Ltd v. Balakrishnan & another [(2013) 1 SCC 731]. She thus prayed that the impugned Awards of the Tribunal, exonerating the ‘NIA’, be set aside; and that they be held responsible to shoulder 50% of the compensation, which has been now ordered against the owner and driver of the car in question. 7. In response, Smt.P.K.Santhamma – learned Standing Counsel for the ‘NIA’, submitted that, since no additional premium had been paid by the owner of the car, her client stood exonerated from all liability to compensate gratuitous passengers and that the Tribunal has, therefore, concluded correctly. 8. I am afraid that I cannot find favour with the afore submissions of Smt.P.K.Santhamma, because the law is now well settled, including through the declarations of the Hon’ble Supreme Court in Balakrishnan (supra), that, when the policy is admitted to be a ‘Package Policy’, it covers gratuitous passengers without any additional premium having to be paid. As long as the Insurance Company does not contest this, I fail to understand how they can argue to sustain the findings of the Tribunal to such effect. MACA 2513/15 & conn. 12 9. At this time, Smt.P.K.Santhamma - learned Standing Counsel for the ‘NIA’, intervened to say that, in fact, the findings of the Tribunal that the driver of the car was equally and contributorily negligent, along with that of the lorry, is fallacious. She argued that the evidence on record would clearly show that the accident occurred only on account of the negligence of the lorry. 10. Again, the afore is not an argument that this Court can ever countenance at this stage, because: for one, the NIA has not filed appeals; and for the second, the finding of the Tribunal, to the extent that both vehicles were contributorily negligent, certainly, is borne out by the evidence on record and established beyond reasonable doubt, especially, going by Exts.A3, A4, A5 and A15 series - reports of the jurisdictional Motor Vehicle Inspector, who has certified that the accident occurred on account of the fault of the drivers of both vehicles. This aspect, is therefore, answered in favour of the appellant; and I declare that the 50% of the compensation ordered by the Tribunal - to be enhanced or otherwise by this Court presently, will have to be borne by the MACA 2513/15 & conn. 13 ‘NIA’. Coming to the compensation awarded, I will deal with each of the cases separately, since the contentions impelled in them are different. ## A. MACA No.2514/2015 The appellant asserts that the compensation awarded to her is exiguous, particularly, under the heads “Pain and Suffering” and “Loss of Amenities”. The medical records involved in this case, namely Exts.A24 & A8, show that the appellant had suffered fracture of both clavicles, as also that of the first and second ribs on the left side. She was hospitalised for two days and also had to have follow-up treatment. Her injuries cannot be seen to be trivial, but are rather grave. I am, therefore, of the view that the amounts granted by the Tribunal under the heads “Pain and Suffering” and “Loss of Amenities” certainly require to be revised to the extent of the claim itself, being Rs.30,000/- and Rs.20,000/respectively. On the other heads, I do not find any error to have been committed by the Tribunal. Resultantly, this appeal is allowed, granting additional MACA 2513/15 & conn. 14 compensation of Rs.20,000/- to the appellant, which she is entitled to recover, along with the compensation awarded by the Tribunal, with interest at the rate ordered by it, from the date of filing of claim till realisation from both the insurance companies in equal proportion as also concluded by the Tribunal. The appellant will also be entitled to proportionate cost, as granted by the Tribunal, on the enhanced amounts. Needless to say, while computing the interest as afore, a period of 599 days, being the delay caused by the appellant in filing this Appeal, shall be reduced. B. MACA No.2515/2015 Smt.K.N.Rajani – learned counsel appearing for the appellant, submitted that the amounts granted by the Tribunal under the heads “Pain and Suffering” and “Loss of Amenities” are inadequate, particularly because her client has suffered brain stem injury and a fracture of one tooth, requiring root canal treatment, consequent to the accident. A brain stem injury can never be seem to be trivial, but can have far reaching repercussions for the victim. Hence, the MACA 2513/15 & conn. 15 compensation for “Pain and Suffering” and “Loss of Amenities” certainly have to be granted adequately. The medical evidence on record, particularly Ext.A9, which remains unimpeached, affirms the afore; and I, therefore, find favour with the submissions. I am resultantly of the firm view that appellant is entitled to be granted the full claim under the heads “Pain and Suffering” and “Loss of Amenities”; and then revise the compensation awarded under these heads to be Rs.30,000/and Rs.20,000/-, from Rs.10,000/- and Rs.5,000/- respectively. This appeal is thus allowed, granting an additional compensation of Rs.35,000/- to the appellant, which she is entitled to recover, along with the compensation awarded by the Tribunal, with interest at the rate ordered by it, from the date of filing of claim till realisation from both the insurance companies in equal proportion, as also concluded by the Tribunal. In all other heads, the findings of the Tribunal will remain unaltered. The appellant will also be entitled to proportionate cost, as granted by the Tribunal, on the enhanced amounts. Needless to say, while computing the interest as afore, a MACA 2513/15 & conn. 16 period of 599 days, being the delay caused by the appellant in filing this Appeal, shall be reduced. ## C. MACA No.2511/2015 The appellant in this case is seen to have suffered fracture of radius - left hand and hemarthrosis of the left knee. This is undisputedly proved by Exts.A10, A31 and A32; and is also without doubt that she was hospitalised for thirteen days in two spells. Though she is a house wife, her contribution cannot be taken lightly, as this Court has already held in another judgment delivered yesterday; and her suffering certainly requires to be adequately compensated. As rightly pointed out by Smt.K.N.Rajani - learned counsel for the appellants, the Tribunal has awarded a very small amount Rs.9,000/- towards “Pain and Suffering”; while only Rs.10,000/has been awarded for “Loss of Amenities”. Here again, the injuries suffered by the appellant are not small; and further, the fracture of her hand, as also the injury on left knee, surely would cause her trauma in the future also. I am, therefore, of the firm view that, under the head “Pain and Suffering”, the Tribunal MACA 2513/15 & conn. 17 ought to have granted the full amount claimed; while for “Loss of Amenities”, the appellant would be entitled to at least Rs.20,000/-. In fact, Smt.K.N.Rajani, learned counsel for the appellant intervened at the this time to argue that, even a house wife is entitled to “Loss of Earnings” on account of injury; and therefore, that the claim made by her, namely Rs.18,000/-, was extremely reasonable, but which the Tribunal has unfortunately denied. As far as the amounts claimed by the appellant towards “Loss of Earnings” is concerned, I find force in the afore contention of Smt.K.N.Rajani. The accident occurred in the year 2005, even going by Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], the notional income to be taken would be Rs.5,000/-. Taking note of the fact that the appellant was hospitalised for thirteen days, I am of the view that the “Loss of Earnings” for two months would certainly be eligible to her. On this head, she is thus entitled to a compensation of Rs.10,000/- Resultantly, this appeal is allowed, granting an additional MACA 2513/15 & conn. 18 compensation of Rs.26,000/- to the appellant; which she is entitled to recover, along with the compensation awarded by the Tribunal, with interest at the rate ordered by it from the date of filing of claim till realisation from both the insurance companies in equal proportion, as also concluded by the Tribunal. In all other heads, the findings of the Tribunal will remain unaltered. The appellant will also be entitled to proportionate cost, as granted by the Tribunal, on the enhanced amounts. Needless to say, while computing the interest as afore, a period of 599 days, being the delay caused by the appellant in filing this Appeal, shall be reduced. D. MACA No.2513/2015 The appellant was an eight year old child, injured in the accident. Annexure 13-Medical Records and Annexure A14-bills would show that she suffered lacerated wound on right occipital region of the scalp and a contusion over right leg. She was hospitalized for two days. 2. The Tribunal proceeded on the assumption that the MACA 2513/15 & conn. 19 injuries were very trivial and thus granted only Rs.4,000/- under the head ‘Pain and Suffering’; while denying the appellant any amount towards ‘Loss of Amenities’. 3. Though the injuries may not be very grave, the fact remains that an eight year old was injured in an accident and, at that age, she certainly must have gone through trauma, which would remain for some time in her impressionable mind. I am, therefore, of the view that this Court will be justified in enhancing the compensation sought for by her under the head ‘Pain and Suffering’ by Rs.15,000/-; while granting a small amount of Rs.5,000/- towards ‘Loss of Amenities’. Resultantly, this Appeal is partially allowed, granting an additional compensation of Rs.20,000/- to the appellant; which she is entitled to recover, along with the compensation awarded by the Tribunal, with interest at the rate ordered by it, from the date of filing of claim till realisation from both the Insurance Companies in equal proportion as also concluded by the Tribunal. She will also be entitled to proportionate cost, as granted by the Tribunal, on the enhanced amounts. MACA 2513/15 & conn. 20 In all other heads, findings of the Tribunal will remain unaltered. Needless to say, while computing the interest as afore, a period of 599 days, being the delay caused by the appellant in filing this Appeal, shall be reduced. ``` Sd/- ``` ``` ACR/RR ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ```