MACA.No. 1287 of 2004(C) & Cross Objection 91 of 2008

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** **MONDAY, THE 6TH OCTOBER 2008 / 14TH ASWINA 1930** ## **MACA.No. 1287 of 2004(C) & CROSS OBJECTION 91 OF 2008** **-------------------------------** **OPMV.1460/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY** **....................** ## **APPELLANT(S): /PETITIONER:** **-----------------------------------------------** **K.V. KAMAL, AGED 66 YEARS, S/O. MOIDEEN KUTTY, ARAFA MANZIL, KADANKETTU, P.O. VARAM, KANNUR DISTRICT.** **BY ADV. SRI.M.V.AMARESAN SRI.V.N.RAMESAN NAMBISAN** ## **RESPONDENT(S): RESPONDENTNO.2 :** **--------------------------------------** **THE ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE, PUTHUMANA BUILDING, RAILWAY STATION ROAD, ALWAYE.** **ADDL.R.2 IMPLEADED: ADDL.R.2: KANTHI KUMAR V.R., S/O RAJAN, AGEDD 36 YEARS, RAMANI BHAVAN, NEAR MUNICIPAL BUS STAND, KANNUR DISTRICT.** **ADDL.R.2 IS IMPLEADED AS PER ORDER DATED 9.7.08 IN I.A.432/08.** **ADV. SRI.M.JACOB MURICKAN SRI.P.VIJAYA BHANU FOR ADDL.R.2. SRI.M.GEORGE THOMAS FOR ADDL.R.2** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **M.N. KRISHNAN, J.** **= = = = = = = = = = = = = = M.A.C.A. NO. 1287 OF 2004 & Cross Objection 91 of 2008 = = = = = = = = = = = = = = = Dated this the 6[th] day of October, 2008.** ## **J U D G M E N T** This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Thalassery in O.P.(MV)1460/98. The claimant, a 60 year old man sustained injuries in a road accident and he has been awarded a compensation of Rs.29,850/- with 9% interest. Dissatisfied with the same the claimant has come in appeal for enhancement. The owner has filed a cross objection challenging the award of the Tribunal regarding the right to reimbursement from him by the insurance company. His contention is that the insurance company is not entitled for reimbursement as there is statutory liability cast on the Company. 2. Let me first consider about the inadequacy of compensation. The treatment records would reveal that the sixty year old man did have a trochantor fracture of the femur and he was inpatient in the hospital for a period of 29 M.A.C.A. 1287 OF 2004 -:2:- days. The Tribunal took his income at Rs.1,250/- per month and calculated the compensation. Ext.X1 is the disability certificate issued by a Medical Board and the Tribunal recording its own reasons had reduced it to 6%. I cannot agree with the same for the reason a Medical Board competent to assess the disability constituted after expert's examination arrived at a disability of 9%. It should not have been lightly brushed aside by the Tribunal. Therefore when disability is fixed at 9%, the entitlement would come to Rs.6,750/- therefore the difference would be Rs.2,250/-. It is also to be stated that the Tribunal has only awarded a sum of Rs.2,000/- towards loss of amenities and enjoyment in life. When a 60 year old man sustained fracture of the femur besides affecting his working capacity it would result in loss of convenience and loss of amenities in life. There cannot be a come back to the normalcy in such cases. Therefore I enhance that compensation by Rs.3,000/-. The Tribunal has M.A.C.A. 1287 OF 2004 ## -:3:- only awarded three months loss of earnings. Considering the nature of the injuries and the prolonged treatment he would have undergone I enhance that compensation also by awarding a sum of Rs.1,250/-. Nothing has been granted towards transport expenses. It is clear that he would have visited hospital on large number of occasions and an amount of Rs.1,000/- has to be awarded. Therefore the claimant will be entitled to an additional compensation of Rs.7,500/-. 3. The next question is regarding the liability of the owner cum driver. Learned counsel for the owner very strongly contends before me that the Tribunal erred in finding that he is bound to reimburse for the reason that his contention was that his vehicle was not involved in the accident which resulted in injuries to the claimant and further he attempted to raise a contention by filing an additional written statement that there was a licensed driver behind him at the time of the accident. So far as the 2[nd] contention ## M.A.C.A. 1287 OF 2004 -:4:- is concerned it has to be held that wisdom has drawn later and therefore it has to be viewed with circumspection and care. 4. So far as the first point is concerned regarding the non involvement of the vehicle it is true that at the initial stage number of the vehicle was shown as KL-13 in stead of KL-5D. So it was made use of by the respondent to contend that no accident had been caused on account of this vehicle. When PW1 was examined PW1 has categorically stated about the involvement of this vehicle and the Tribunal has observed that no cross-examination has been done on that and therefore it is proved that it was the respondent's vehicle that had been involved in the accident. The respondent did not have a case that he had another vehicle which got involved in the accident. Further he did not even mount the box to give any evidence in support of his contention. Therefore the Tribunal rightly held that it was the M.A.C.A. 1287 OF 2004 ## -:5:- respondent's vehicle that has caused the accident. So that finding does not call for any interference. 5. Lastly, learned counsel strongly relying upon the decision of the Apex Court reported in _**Swaran Singh's case, National Insurance Co. Ltd. v. Swaran Singh (2004 (1) KLT 781)**_ argues that there was a person with a valid licence behind him and as laid down by Supreme Court in the said decision, the insurance company has not proved that the absence of a driving licence was so fundamental which has resulted in the accident. In _**Swaran Singh's case**_ the Apex Court held that a learner's licence is also a valid licence provided it comply with the statutory requirement of having a licensed driver behind that person. Though the accident took place and the petition was filed in 1999 the additional written statement was attempted to be introduced in 2003 which the Tribunal rightly did not entertain. It has to be stated from the contention of the M.A.C.A. 1287 OF 2004 -:6:- owner-cum-driver that he wants to get away from the liability by contending that his vehicle was not involved in the accident and when he experienced a difficult situation he would turn round and say that there was another person with valid licence with him at the time of the accident. Except for these statements no evidence is forthcoming and he has not examined anybody. Therefore I do not propose to accept that argument at all. 6. So far as the decision referred to is concerned the Tribunal has categorically arrived at a finding that the accident had taken place on account of the rash and negligent driving of the owner-cum-driver. The absence of licence can be presumed to be one of the reasons for the accident, though it may not be the sole criteria. The insurance company can only prove the positive and there is equally some responsibility on the part of the owner-cum -driver to establish his case. Sitting tight at home one ## M.A.C.A. 1287 OF 2004 ## -:7:- cannot dictate that he has no responsibility at all. When such is the situation the available circumstances have to be taken into consideration. The nature of contentions raised has to be analysed and the Court has to find out which is the preponderance of probabilities that may have to be given due weight in a case of this nature. I have absolutely no doubt in mind that the only intention of the owner-cum-driver is to escape from the clutches of liability and therefore I do not propose to accept that argument as well. So the cross objection lacks merit and it is dismissed. In the result the MACA is partly allowed and the claimant is awarded an additional compensation of Rs.7,500/- with 7% interest on the said sum from the date of petition till realisation and the insurance company is directed to deposit the same. The insurance company on deposit of that amount is given right to get it reimbursed from the owner-cum-driver. The owner-cum-driver is also liable to ## M.A.C.A. 1287 OF 2004 -:8:- reimburse the amount originally awarded. In view of the circumstances I grant three months time for the crossobjector namely the owner-cum -driver to pay the amount to the insurance company and let action be initiated by the insurance company only thereafter. Considering the age of the person the amount so deposited shall be disbursed to the claimant. ## **M.N. KRISHNAN, JUDGE.** ul/-