MACA Nos. 793/2009, 506/2009 and 2191/2009 (Motor Accident Claims Appeals) - High Court of Kerala, Ernakulam

MACA.No.793/09 & Conns. 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 8[TH] DAY OF NOVEMBER 2023 / 17TH KARTHIKA, 1945_ ## _MACA NO. 793 OF 2009_ _AGAINST THE ORDER/JUDGMENT OPMV 717/2006 OF MOTOR ACCIDENT_ ## _CLAIMS TRIBUNAL TIRUR_ ## _APPELLANT/2ND RESPONDENT:_ _NOUSHAD, PUTHUKKUDI HOUSE, KOTTAKKAL, CHANGUVETTY, PIN-676 503._ _BY ADV.SRI.A.KRISHNAN_ ## _RESPONDENTS/CLAIMANT/RESPONDENTS 1, 3 & 4:_ - _1 P.K.ALAVIKUTTY, S/O.KOYAMMU, PANGINIKKATTU HOUSE,, KALLAKKAYAM PARAPPUR, AMSAM, (VIA) VENGARA, IRINGALLUR P.O., MALAPPURAM DISTRICT._ - _2 VEERANKUTTY S/O.HUSSAIN, MELATHODI HOUSE, KOOTTILANGADI, MALAPPURAM,, PIN-676 506._ - _3 THE NEW INDIA ASSURANCE CO. LTD., BRANCH OFFICE, VARIKKODAN BUILDING, NILAMBUR ROAD, MANJERI, PIN-676 121._ MACA.No.793/09 & Conns. 2 _4 MOHAMMED ASHRAF, S/O.KUNJIMOIDEEN, THALAPPIL HOUSE, EAST ROAD, P.O.MANJERI._ _BY ADVS. SRI.P.CHANDRASEKHAR SRI.P.MURALEEDHARAN SRI.P.SAMSUDIN_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.11.2023, ALONG WITH MACA.506/2009, 2191/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.793/09 & Conns. 3 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 8[TH] DAY OF NOVEMBER 2023 / 17TH KARTHIKA, 1945_ ## _MACA NO. 506 OF 2009_ _AGAINST THE ORDER/JUDGMENT OPMV 717/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL TIRUR_ ## _APPELLANT/ADDL.4TH RESPONDENT:_ _MOHAMMED ASHRAF, AGED 38 YEARS, S/O.KUNJI MOLDEEN,THALAPPIL HOUSE, EAST ROAD, P.O.MANJERI,,MALAPPURAM DISTRICT._ _BY ADV.SRI.P.SAMSUDIN_ ## _RESPONDENTS/PETITIONER/RESPONDENTS 1 TO 3:_ _1 P.K.ALAVIKUTTY, AGED 39 YEARS, S/O.KOYAMMU, PANGINIKKATTU HOUSE, KALLAKKAYAM,PARAPPUR AMSOM, IRINGALLUR P.O., VIA.VENGARA,MALAPPURAM DISTRICT._ _2 VEERANKUTTY, S/O.HUSSAIN MELEMODI HOUSE PAZHAMALLUR, KOOTTILANGADI, MALAPPURAM DISTRICT. 3 NOUSHAD, S/O.MOIDU PUTHUKKUDI HOUSE,KOTTAKKAL, CHANGUVETTY, PIN- 676 503._ MACA.No.793/09 & Conns. 4 _4 M/S.NEW INDIA ASSURANCE COMPANY LTD., BRANCH OFFICE, VARIKODAN BUILDING, NILAMBUR ROAD,, MANJERI, PIN 676 121._ _BY ADVS. SRI.K.ARJUN VENUGOPAL SRI.P.CHANDRASEKHAR SMT.V.A.HARITHA SRI.JEEVAN RAJEEV SRI.A.KRISHNAN SRI.P.MURALEEDHARAN SMT.MARY RESHMA GEORGE SRI.R.NANDAGOPAL_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.11.2023, ALONG WITH MACA.793/2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.793/09 & Conns. 5 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 8[TH] DAY OF NOVEMBER 2023 / 17TH KARTHIKA, 1945_ ## _MACA NO. 2191 OF 2009_ _AGAINST THE ORDER/JUDGMENT OPMV 717/2006 OF MOTOR ACCIDENT_ _CLAIMS TRIBUNAL TIRUR_ ## _APPELLANT/PETITIONER:_ _K.ALAVIKUTTY, S/O. KOYAMU, PANGINIKKATTU HOUSE,, KALLAKKAYAM PARAPPUR AMSOM, IRINGALLUR P.O., VIA VENGARA, MALAPPURAM DIST._ _BY ADVS. SRI.P.CHANDRASEKHAR SMT.UMA_ ## _RESPONDENTS/RESPONDENTS:_ _1 VEERANKUTTY, HOUSE, PAZHAMALLUR, KOOTTILANGADI, MALAPPURAM PIN-676 506._ _[1ST RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 14.12.2017 IN I.A.No.4643 OF 2017 IN MACA.2191 OF 2009]_ _2 NOUSHAD, S/O.MOIDU, PUTHUKKUDI HOUSE, KOTTAKKAL, CHANGUVETTY, PIN 676 503,_ MACA.No.793/09 & Conns. 6 _3 M/S.NEW INDIA ASSURANCE CO. LTD. BRANCH OFFICE, VARIKODAN BUILDING, NILAMBUR ROAD, MANJERI PIN 676 121._ > _ADDL.4TH MOHAMMED ASHRAF, S/O.KUNHIMOIDEEN, THALAPPIL HOUSE,_ > _RESPONDENT EAST ROAD, P.O.MANJERI-676 121._ _BY ADVS. SRI.JITHIN LUKOSE SRI.P.MURALEEDHARAN SRI.P.SAMSUDIN_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.11.2023, ALONG WITH MACA.793/2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.793/09 & Conns. 7 ## **JUDGMENT** [MACA Nos.793/2009, 506/2009, 2191/2009] All these three appeals are arising from O.P.(M.V) No. 717 of 2006 on the files of the Motor Accidents Claims Tribunal, Tirur. M.A.C.A.No.2191 of 2009 was filed by the petitioner in the claim petition, M.A.C.A.No.506 of 2009 was filed by the 4[th] respondent, in whose name the insurance policy for the vehicle stood at the relevant time and M.A.C.A.No. 793 of 2009 is filed by the driver of the vehicle, involved in the accident, who was the 2[nd] respondent in the claim petition. (For convenience, the parties in these appeals are hereinafter referred to based on their respective ranks in the claim petition). 2. The petitioner, the appellant in M.A.C.A No.2191 of 2009 filed the claim petition seeking compensation for the injuries sustained to him in a motor accident that occurred on 07.05.2006. According to him, while standing on the roadside, he was hit by an Omni van bearing registration No.KL-7-AA 7231 driven by the 2[nd] respondent. The said vehicle was owned by the 1[st] respondent and MACA.No.793/09 & Conns. 8 was insured with the 3[rd] respondent. The policy was in the name of the 4[th] respondent. According to the petitioner, he was 38 years old at the time of the incident and was a PWD (Public Works Department) Contractor with a monthly income of Rs.30,000/- The injuries sustained by him resulted in physical disablement, which was certified by the Medical Board as 40%. The claim petition was submitted in such circumstances. 3. The 3[rd] respondent/Insurance Company submitted a written statement admitting the coverage of the policy in respect of the said vehicle. However, it was contended that the driver of the vehicle was not holding a valid driving license as on the date of the accident. They also disputed the quantum of compensation. The 4[th] respondent also filed a written statement denying the negligence on the part of the 2nd respondent. 4. The evidence in this case consists of Exts.A1 to A15 from the petitioner's side and Ext.B1 marked from the respondents' side. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the 2[nd] respondent, the driver of the vehicle. It was found MACA.No.793/09 & Conns. 9 that the 2[nd] respondent did not have a valid driving license and therefore, even though the 3[rd] respondent insurance company was held liable to pay the compensation at the first instance, they were granted the right to recover the compensation from the 2[nd] and 4[th] respondents. The quantum of compensation was fixed as Rs.2,72,800/-. The petitioner has filed M.A.C.A.No. 2191 of 2009 seeking enhancement of compensation, whereas the 2nd and 4th respondents have filed M.A.C.A.Nos.793 of 2009 and 506 of 2009, respectively, challenging the recovery of compensation ordered against them. 5. Heard, Sri.P.Chandrasekhar, the learned counsel appearing for the petitioner, Sri.P.Samsudin, the learned counsel appearing for the additional 4[th] respondent and P.Muraleedharan, the learned counsel appearing for the 3[rd] respondent/Insurance company. 6. As far as M.A.C.A.No.793 of 2009 is concerned, the learned counsel made a submission when the matter came up for consideration before this Court on 30.03.2023 that he relinquished the vakalath as he had no instructions from the client. Even MACA.No.793/09 & Conns. 10 though the case was posted thereafter on several occasions, there was no appearance on behalf of the appellant therein. 7. The 1[st] question to be considered is the challenge raised against the award at the instance of the additional 4[th] respondent, the insured. The main contention the additional 4th respondent put forward is that the Tribunal committed an error in holding the respondent responsible for paying the compensation. The specific contention put forward in this regard is that he had already transferred the said vehicle before the date of the accident. When the accident occurred, the vehicle was registered in the name of the 1[st] respondent. Even though no documents were produced to substantiate the said fact, the document which is relevant in this regard is Ext.A6 which is the Inspection Report of the vehicle by the Assistant Motor Vehicle Inspector. In the said report, the name of the registered owner mentioned is that of the 1[st] respondent. It is evident from the records that the insurance company filed a petition which was numbered I.A.No.4977/2017, before the Tribunal, directing the 1st respondent, who was initially impleaded as the registered owner of the vehicle, to produce the MACA.No.793/09 & Conns. 11 registration particulars and the driving license. However, the same was not produced. It is true that, apart from the above, there is absolutely no document to indicate that the vehicle, as on the date of the accident, stood registered in the name of the 1[st] respondent. 8. It is to be noted that, in the claim petition, the specific case advanced by the petitioner is that the vehicle stood registered in the name of the 1[st] respondent. The additional 4[th] respondent was subsequently impleaded only when the 3[rd] respondent Insurance Company filed a written statement stating that, at the time of the accident, the policy issued to the vehicle stood in the name of the 4[th] respondent. Thus, it is evident that even according to the petitioner, in the claim petition, the 1st respondent was the registered owner, and the said aspect is fortified by the Ext.A6 inspection report of the Assistant Motor Vehicle Inspector. Since the said report is an official document executed by a competent officer in the discharge of his duties after examining the registration particulars of the said vehicle, I have no reason to discard the contents of the same. Therefore, I am of MACA.No.793/09 & Conns. 12 the view that the said document can be accepted for the purpose of this claim petition and to hold that at the relevant time, the vehicle stood registered in the name of the 1[st] respondent. Of course, it is true that as per the insurance policy issued pertaining to the period of the accident, the additional 4[th] respondent in M.A.C.A.No.2191 of 2009 was the insured. However, that by itself cannot be the reason to impose any liability upon the additional 4[th] respondent. This is mainly because Section 157(1) of the Motor Vehicles Act contemplates a deemed transfer of the rights and liabilities of the insurance policy in favour of the transferee in the event of transfer of registration of the said vehicle. Therefore, even though if the insurance policy stood in the name of the additional 4[th] respondent at the time of the accident, by the provision of the deemed transfer as contemplated under Section 157 of the Motor Vehicles Act, rights and liabilities arising in respect of the appellant shall stand transferred in the name of the transferee. In this case, it is evident from Ext.A6 that the vehicle stood transferred by following the procedures contemplated in the Motor Vehicles Act in favour of the 1[st] respondent and therefore, MACA.No.793/09 & Conns. 13 no liability can be imposed upon the additional 4[th] respondent, merely because the insurance policy stood at the relevant time in his name. Consequently, I hold that the finding of the Tribunal that the petitioner shall be entitled to recover the compensation from the 4th respondent is erroneous, and it is set aside. 9. The next aspect relates to the quantum of compensation, which is under dispute in MACA No.2191 of 2009 filed by the petitioner. The learned counsel for the petitioner points out that the petitioner was a contractor by profession with a monthly income of Rs.30,000/- and he sustained physical disablement, which was certified as 40%. Despite the same, the monthly income taken by the Tribunal was only Rs.3,000/-, which is inadequate, it was contended. After considering the materials on record, I find some force in the contention. Of course, the petitioner has indeed adduced no evidence to substantiate the income, even though Ext.A8 would indicate that he got a registration with the Commercial Tax Department as a works contractor. However, no details of the works he undertook and the income generated therefrom were furnished before the Tribunal. MACA.No.793/09 & Conns. 14 But the fact remains that the nature of the avocation of the petitioner is very much evident from the Ext.A8 certificate of registration, which cannot be denied. The accident, in this case, occurred in 2006. As per the method of computation evolved from the principles laid down by the Honourable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance co. Ltd [2011 (13) SCC 236]** and **Syed Sadiq v. Divisional Manager, United India Insurance Co. [2014 (2) SCC 735],** even in respect of an ordinary employee without any special skills, the monthly income can be fixed as Rs.4,500/- in respect of an accident occurred in the year 2004, even if there is no evidence to substantiate the income. The usual method of computation that this Court consistently follows for determining the monthly income for the subsequent years with respect to such ordinary workers is to make an addition of Rs.500/- each for every year. While, adopting the said method, it can be seen that the monthly income of an ordinary worker in respect of an accident that occurred in the year 2006 would be Rs.5,500/-. But, in this case, there is some evidence to indicate that he worked as a MACA.No.793/09 & Conns. 15 contractor, as is discernible from Annexure-8. Therefore, a slightly higher income ought to be taken to assess the compensation. Thus, in the facts and circumstances of the case, I deem it appropriate to fix the monthly income as Rs.8,000/- in this appeal. Considering the fact that the petitioner was 38 years old at the time of the accident, the multiplier to be adopted is 15. Therefore, when re-fixing the compensation with the above criteria, compensation under the head of loss of earning power would come to Rs.5,76,000/- (8000 x 12 x 15 x 40/100). The amount already awarded by the Tribunal is Rs.2,30,400/- and after deducting the said amount, the additional compensation would come to Rs.3,45,600/-. Besides the same, it is discernible from the award that the amount granted towards pain and suffering is only Rs.10,000/-. The materials produced before the Tribunal would indicate that the petitioner had suffered very serious injuries, which resulted in permanent partial disablement of 40%. When considering the aforementioned aspect, the amount awarded towards pain and suffering is on the lower side and requires reconsideration. In the facts and circumstances of the case, I MACA.No.793/09 & Conns. 16 deem it appropriate to fix Rs.30,000/-, thereby granting an additional compensation of Rs.20,000/- under the said head. Similarly, no amount is granted towards the loss of amenities. Evidently, the petitioner suffered 40% disability, certified by the Medical Board. He has to live with that disability throughout his life, and therefore, he is entitled to compensation for the loss of amenities. When considering the period of the accident and the nature of the injuries as well as the physical disability, I deem it appropriate to grant an amount of Rs.25,000/- under the said head. Thus, the total additional compensation receivable by the petitioner is determined as Rs.3,90,600/- [345600+20000+25000]. 10. As far as M.A.C.A.No.793 of 2009 is concerned, the main contention put forward by the appellant therein is against the imposition of liability upon him. The Tribunal also found the appellant, who was the driver of the motor vehicle, liable to pay the compensation on the ground that, at the relevant time, he did not have a valid driving licence. Even though he is challenging such a finding in this case, no documents were produced to show that he held a valid driving licence at the relevant time. The MACA.No.793/09 & Conns. 17 contention raised by the appellant/2[nd] respondent in M.A.C.A.No.793 of 2009 is that the insurance company failed to prove the violation of the policy conditions. However, after considering the materials placed on record, I am of the view that there are no materials which warrant interference in the findings of the Tribunal. However, even though the violation of policy conditions is discernible from the records, the Tribunal exonerated the Insurance Company from liability and imposed the same upon the 1[st] and 4[th] respondents. As far as the claimant is concerned, he has every right to get compensation once he suffers the injuries in a motor accident. As far as the lack of policy or violation of the policy conditions are concerned, can only be a dispute between the insurer and the insured and under no circumstances the same can have any impact upon the right of the claimant to seek compensation. At this juncture, the learned counsel appearing for the 3[rd] respondent Insurance Company would point out that in any of the appeals, there is no proper challenge against the finding of the Tribunal exonerating the Insurance Company. However, in M.A.C.A.No.793 of 2009 filed by the 2[nd] respondent, the driver of the vehicle, he MACA.No.793/09 & Conns. 18 has challenged the exoneration. Even otherwise, the exoneration of the Insurance Company, as per the findings in the award, is a patent illegality. Therefore, when such patent illegality in the award passed by the Tribunal comes to the notice of this court, the same cannot be ignored by this Court. Therefore, I am of the view that, the finding of the Tribunal exonerating the Insurance company is liable to be set aside and it is ordered accordingly. 11. In the light of the aforesaid observations and findings, all the above appeals are disposed of, modifying the award dated 16.12.2008 in OP(MV) NO 716/2006 passed by the Motor Accident Claims Tribunal, Tirur, with the following findings: 1) Award passed by the Tribunal is set aside to the extent it held the additional 4[th] respondent liable to pay the compensation. The finding of the Tribunal exonerating the 3[rd] respondent insurance company is also set aside. The 1[st] , 2[nd] and 3[rd] respondents are held jointly and severally liable to pay the compensation. Even while upholding the finding of the Tribunal that there was a violation of the policy condition at the instance of the owner of the vehicle, the liability to pay the compensation at the 1[st] instance is hereby imposed upon the 3[rd] respondent Insurance Company. Thus, the MACA.No.793/09 & Conns. 19 3[rd] respondent, after satisfying the award, shall be entitled to recover the compensation from the 1[st] respondent, who was the owner of the vehicle at the relevant time and also from the 2[nd] respondent, the driver of the vehicle, 2) The quantum of compensation is revised, and an additional amount of Rs.3,90,600/- (Rupees three lakhs ninety thousand and six hundred only) is awarded, and the total amount which the petition is entitled to recover is determined as Rs 6,63,400/- (Rupees six lakhs sixty three thousand and four hundred only). The Insurance Company is directed to deposit the total amount of the award, i.e., Rs.6,63,400/- with interest at the rate as ordered by the Tribunal at the rate of 8% per annum from the date of petition till realization and the said amount shall be deposited within a period of three months from the date of receipt of a copy of this judgment. It is further clarified that M.A.C.A.No.2191 of 2009 is filed with a petition to condone the delay of 102 days, the Insurance Company shall be entitled to exclude the said period while calculating the amount additionally awarded in this appeal. After depositing the amount, it shall be open for the 3[rd] respondent Insurance Company to recover the said compensation from the 1[st] MACA.No.793/09 & Conns. 20 and 2[nd] respondents by executing the award. It is further clarified that the appellant in M.A.C.A.No.506 of 2009 shall be entitled to get the amount of statutory deposit to be released to him upon submitting a proper application before the Tribunal. _Sd/-_ **ZIYAD RAHMAN A.A. JUDGE** DG/rpk/13/11/23