MACA.No. 467 of 2008

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **& THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **TUESDAY, THE 22ND DAY OF OCTOBER 2013/30TH ASWINA, 1935** ## **MACA.No. 467 of 2008 ( )** **------------------------AGAINST THE AWARD IN OP(MV) NO.3554/1994 OF II ADDL. MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE DATED 22-12-2006** **-----------------------** ## **APPELLANT/3RD RESPONDENT :** **------------------------------------------------** **THE KERALA STATE INSURANCE DEPARTMENT DISTRICT INSURANCE OFFICE, TRIVENI BUILDING, KOZHIKODE.** **BY GOVT. PLEADER SRI. P.P. PADMALAYAN** ## **RESPONDENTS / PETITIONERS & RESPONDENTS 1 & 2 :** **----------------------------------------------------------------------------------** **1. V. ISMAIL, S/O.HASSAN HAJI THALIYIL HOUSE, FEROKE PETTA, FEROKE (PO) FEROKE AMSOM, NALLUR DESOM, KOZHIKODE DISTRICT.** **2. THE SUPERINTENDENT ENGINEER ELECTRICAL CIRCLE, K.S.E.B., GANDHI ROAD, KOZHIKODE.** **3. T.SUBRAMANYAN, S/O.VELAYUDHAN THAROL HOUSE, ARAKKINAR PO, KOZHIKODE DISTRICT.** **R1 BY ADV. SRI.K.M.FIROZ** **R2 BY ADVS. SRI. ASOK M.CHERIYAN, SC, KSEB SRI.PULIKOOL ABUBACKER, SC, KSEB** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...2/-** ## **MACA.No. 467 of 2008 ( )** ## **APPENDIX** ## **PETITIONER'S ANNEXURES :** **ANNEXURE I : COPY OF THE CERTIFICATE OF INSURANCE POLICY NO. 098/94/KKDA AND CERTIFICATE NO. 192/94.** ## **RESPONDENT'S ANNEXURES :** **ANNEXURE A1 : COPY OF THE INVITATION CARD IN RESPECT OF APPELLANT'S DAUGHTER'S MARRIAGE.** **//TRUE COPY//** **P.S. TO JUDGE** **Mn** S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ================== M.A.C.A.No. 467 of 2008 ================== Dated this the 22[nd] day of October, 2013 J U D G M E N T ## K.Ramakrishnan, J.: The 3[rd] respondent-insurance company in O.P.(M.V).No. 3554/1994 on the file of the Motor Accidents Claims Tribunal, Kozhikode, is the appellant herein. The application for compensation was filed by the 1[st] respondent herein for the injuries and disability suffered by him and also for the damage caused to his car, due to the negligent driving of the vehicle by its driver, insured with the appellant-insurance company. After considering the evidence on record, the Tribunal found that the accident occurred due to the negligent driving of the vehicle by the driver, insured with the appellant and awarded ` 3,10,440/for personal injuries and ` 66,000/- for property damage and total amount of ` 3,76,440/- with interest at the rate of 9% from the date of petition till date of payment. Aggrieved by the quantum and liability fixed, the appellant has preferred this appeal. 2. The policy was not produced before the lower court. But the appellant has produced the policy of the vehicle along with I.A.No.2126/2006 before this Court with a prayer to receive M.A.C.A.467/08 - : 2 :- additional evidence by this Court under Order XLI Rule XXVII of Code of Civil Procedure and considering the reasons stated in the application, we are inclined to allow the same and mark the policy as Ext.B1 before this Court. 3. We have heard the learned counsel for the appellant and the learned counsel for respondents including the counsel for the petitioner in the lower court. 4. The learned counsel for the appellant submitted that the policy is an “Act Only Policy” and the Tribunal has awarded ` 66,000/- as damage to the property, making the appellant liable to pay the entire amount, which is unsustainable in law. As per the provision of the Motor Vehicles Act, they are liable to cover only ` 6,000/- in the case of property damage as per the “Act Only Policy”. Further, the Tribunal has awarded ` 1,00,000/under the head, future treatment, which has not been proved. The Tribunal was not justified in awarding interest for the amount awarded for future treatment as it is not an incurred amount, but will be spent in future. So the total compensation awarded is also on the higher side. 5. The learned counsel for the 1[st] respondent-claimant submitted that they have not produced the policy before the lower court and it was not proved. Further, the 1[st] respondent has produced documents before the lower court to prove that he M.A.C.A.467/08 - : 3 :- requires hip replacement, for which, an amount of ` 1,74,000/- is required. So considering these aspects, the Tribunal has correctly awarded the amount and liability has been fastened on the insurance company. 6. The learned counsel for the 2[nd] respondent submitted that the vehicle of the 1[st] respondent was insured and they could have claimed the property damage with their insurance company, which they have not done. So, considering this aspect, the amount awarded towards property damage is on the higher side. 7. We have considered the rival contentions of both parties in detail. 8. As regards the compensation awarded for personal injuries is concerned, the claimant has sustained severe injuries and suffered 40% functional disability. He was sent to medical board and the medical board assessed 23% permanent disability and this was taken by the Tribunal as such for awarding compensation under the head, loss of earning capacity. Further, they have produced Ext.A29 issued by a consulting orthopedic surgeon at Iqurra Hospital, Malaparamba, whereby an estimate was given as ` 1,74,506/- for hip replacement and it was advised for hip replacement as well. The Tribunal has relied on the decision reported in **Chacko v. Abdul Rahiman** , 2004 (3) KLT M.A.C.A.467/08 - : 4 :- 1007, wherein it has been held that the amount required for future medical treatment can be awarded. In this case, the Tribunal has considered the aspect that Ext.A29 was not properly proved, but convinced that hip replacement is required, for which, some amount will be required for the petitioner towards future medical expenses and awarded ` 1,00,000/- under that head. We do not find any illegality on the part of the Tribunal in awarding that amount under that head. But the Tribunal was not justified in awarding interest for this amount as this was not the expenses incurred by the claimant. It is only an amount likely to be incurred by the petitioner in future. So, interest awarded for the amount of ` 1,00,000/-, which has been awarded by the Tribunal towards future medical expenses, is liable to be set aside and we set aside the same to that extent. 9. As regards the property damage is concerned, they have produced Ext.A8 series of bills and also surveyor's report, in which, it was assessed for ` 66,000/-. It is true that the surveyor was not examined. But they have no case that the vehicle was not damaged in the accident. Further, the fact that the Tribunal has taken note of the fact that the vehicle was of the year 1983 model diesel ambassador car and considering these aspects, awarded only ` 66,000/- towards damage to the property. So we are not inclined to interfere with the amount M.A.C.A.467/08 - : 5 :- awarded towards damage to the car. But there is some force in the submission made by the learned counsel for the appellant that in the case of property damage of a third party liability policy, the limit of insurance is only ` 6,000/-. This is so stated in Section 147(2) of the Motor Vehicles Act, which reads thus: “ **147. Requirements of policies and limits of liabilities** :- (1)..... xxx xxx xxx xxx xxx (2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:- - (a) save as provided in clause (b), the amount of liability incurred; - (b) in respect of damage to any property of a third party, a limit of rupees six thousand: Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier.” It is true that they have not produced the policy before the lower court. But they have taken a contention in the written statement that it is an Act Only Policy and no premium has been collected for payment of unlimited damage to third party. The 2[nd] respondent has no case that they have paid any additional premium for the same as well. In the appeal they have produced the copy of policy, which is marked as Ext.B1 by this Court. It will go to show that it is only an Act Only Policy and the liability M.A.C.A.467/08 - : 6 :- for third party property damage has been restricted to ` 6,000/as per the policy. So as regards the liability regarding property damage is concerned, liability of the appellant is only ` 6,000/and the balance ` 60,000/- has to be paid by the 2[nd] respondent, who is the owner of the vehicle at the relevant time. So the award of the Tribunal has to be modified as follows: (1) The 1[st] respondent is not entitled to interest awarded by the Tribunal on the amount of ` 1,00,000/- towards future medical expenses. (2) As regards property damage is concerned, the appellant-insurance company is liable to indemnify the 2[nd] respondent insured to the extent of ` 6,000/- alone and the balance amount has to be paid by the owner of the vehicle, the 2[nd] respondent. With the above modification of the impugned award of the Tribunal, the appeal is disposed of. Sd/S.SIRI JAGAN, JUDGE sdk+ Sd/K.RAMAKRISHNAN, JUDGE ///True copy/// P.A. to Judge