High Court of KeralaSingle Judge2021-09-13Appeal dismissed

Managing Director, Transport Corporation, Madurai Division III, Nagercoil v Murugan, Jones, and Divisional Manager, Oriental Insurance Company Ltd.

Case / Petition Number:MACA No. 1683/2009

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2021-09-13
Court Decision / Holding: Appeal dismissed. The High Court held that non-joinder of the driver does not render the petition defective and that the Tribunal’s notional income was justifiable in light of precedents; it affirmed the Tribunal’s award of Rs.44,400 with interest and costs and noted the long pendency of the matter. The Tribunal was instructed to inform the claimant of the dismissal and his right to recover the compensation, and the Registry was to forward a copy of the judgment to the Tribunal for compliance.
Final Disposition: Appeal dismissed

Parties to the Case

Appellants / Petitioners

MURUGAN, CHENKAVILA, AYIRA.P.O, THIRUVANANTHAPUAM DISTRICT
JONES, S/O.MASILMONY, 21/36 A, MARAAPPADU, VILAVANCODE TALUK, KANYAKUMARI DISTRICT

Respondents

MANAGING DIRECTOR, TRANSPORT CORPORATION, MADURAI DIVISION III, NAGERCOIL
THE DIVISIONAL MANAGER, ORIENTAL INSURANCE COMPANY LTD, THIRUVANANTHAPURAM

Legal Representation & Advocates

Counsels for Respondents

• Sri Subhash Syriac

Case Synopsis & Summary

This is a Motor Accidents Claims Appeal (MACA No. 1683 of 2009) decided by the Kerala High Court. The appeal challenges a Motor Accidents Claims Tribunal, Neyyattinkara award dated 21.05.2007 in O.P (MV) No. 1550/2003, which awarded Rs. 44,400 (with interest and costs) to the injured claimant against the owner of the offending vehicle. The appellant, the Transport Corporation (owner), contends two grounds: (i) the driver of the bus was not joined as a party before the Tribunal, rendering the petition bad for non-joinder; and (ii) the Tribunal’s notional monthly income of Rs. 2,000 for the applicant (a daily labourer) is excessive. The respondents include Murugan and Jones, who filed the original petitions, and the insurer Oriental Insurance Co. Ltd. The Tribunal’s evidence included Exts. A1–A6, RW1 (driver) and Ext. B1 (insurance policy). The learned judge cites precedents to address maintainability despite non-joinder (Oriental Insurance Co. Ltd. v. Shobana Omanakuttan; Anuradha Varma), as well as notional income benchmarks (Ramachandrappa) and a policy stance against delaying genuine claims (New Indian Assurance v. Kiran Singh). After careful consideration of pleadings and the long delay in adjudication, the High Court dismisses the appeal and affirms the Tribunal’s award, noting the appellant’s failure to demonstrate error while underscoring the claimant’s right to compensation. Sd/ C.S. Dias, Judge.

Provisions of Law Cited

Section 166 of Motor Vehicles Act, 1988

Legal Doctrines & Maxims

Tribunals may do some guess work and exercise discretion; there cannot be a straight jacket formula based on arithmetic exactitude.
Owner and insurer of a vehicle are necessary parties if the vehicle is insured; maintainability exists even if the driver is not joined.
Insurance companies should not drag genuine claims; depreciation of this practice (as noted in New Indian Assurance Co. v. Kiran Singh).
Notional income for a labourer should be assessed with reference to precedents and relevant time frame (e.g., Ramachandrappa).

Submissions & Arguments

Contentions of Appellants / Petitioners

Murugan and Jones contended that they were injured in a motor vehicle accident caused solely by the negligence of the offending vehicle, and sought compensation under Section 166 of the Motor Vehicles Act. They asserted the accident date (15.09.2003), the injuries sustained (including a fracture), and the claimant’s occupation as laborer with income claimed at Rs. 3,500 per month. They produced Exts A1–A6; RW1 was examined; Ext B1 is the insurance policy. The main contention was that the Tribunal’s award adequately compensates the losses and that the evidence supported liability and quantum.

Contentions of Respondents

The respondents argued two grounds of challenge: (i) the driver of the offending bus was not joined before the Tribunal, making the petition bad for non-joinder; and (ii) the Tribunal’s fixation of notional income at Rs. 2,000 per month was not justified, given the claimant’s alleged earnings and legal benchmarks.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Oriental Insurance Company Ltd. v. Shobana Omanakuttan and others	[2015 KHC 406]	Positive	Held that maintainability of the claim petition persists even if the driver is not joined, when the vehicle is insured.
Anuradha Varma v. State of Kerala	(1993 (2) KLT 777)	Positive	Noted for maintainability and the role of necessary parties in vehicle injury claims.
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	(2011) 13 SCC 236	Positive	Notional income benchmarks for laborers; used to justify notional income in the facts of this case.
New Indian Assurance Company Ltd. v. Kiran Singh & Others	(2004) AIR SCW 4212	Positive	Depreciated the practice of insurers contesting genuine claims and delaying proceedings.

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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 C.S.DIAS** **MONDAY, THE 13[TH] DAY OF SEPTEMBER 2021 / 22ND BHADRA, 1943** **MACA NO. 1683 OF 2009** **AGAINST THE AWARD DATED 21.05.2007 IN OP(MV)NO.1550/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,NEYYATTINKARA, THIRUVANANTHAPURAM** ## **APPELLANT/1ST RESPONDENT:** **MANAGING DIRECTOR, TRANSPORT CORPORATION, MADURAI DIVISION III,, NAGERCOIL.** **BY ADV SRI.SUBHASH CYRIAC** ## **RESPONDENT/ APPLICANT AND RESPONDENTS 2 AND 3:** - **1 MURUGAN, CHENKAVILA, AYIRA.P.O, THIRUVANANTHAPUAM DISTRICT.** **2 JONES, S/O.MASILMONY, 21/36 A, MARAAPPADU, VILAVANCODE TALUK, KANYAKUMARI DISTRICT.** - **3 THE DIVISIONAL MANAGER, ORIENTAL INSURANCE COMPANY LTD, THIRUVANANTHAPURAM.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.1683/2009 -:2:- _Dated this the 13[th] day of September,2021_ ## **J U D G M E N T** The appellant was the first respondent in O.P (MV)No.1550/2003 on the file of the Motor Accidents Claims Tribunal, Neyyattinkara. The first respondent in the appeal was the claimant and the respondents 2 and 3 were the respondents 2 and 3 before the Tribunal. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The applicant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained on 15.09.2003. It was his case that on the above date, while he was travelling in a vehicle bearing registration No.TN-74-B-9406 from Kaliyikkavila-Padanthalummodu National Highway, when the vehicle reached a place named Ottamaram, a vehicle bearing registration No.TN-74-N-0728 (offending vehicle), hit against the vehicle in which the M.A.C.A.No.1683/2009 -:3:- applicant was travelling. The applicant sustained serious injuries, including a fracture and was treated as an inpatient. The applicant was a labourer by profession and earning a monthly income of Rs.3,500/-. The accident occurred solely due to the negligence of the offending vehicle, which was owned by the first respondent. The vehicle in which the applicant was travelling was owned by the second respondent and insured with the third respondent. The applicant claimed compensation from the respondents. 3. Another injured in the same accident also filed O.P.(MV)No.1609/2003 before the very same Tribunal. 4. The first respondent contested both the claim petitions by filing written statements and refuting the allegations in the claim petition. The first respondent disputed the age, income and occupation of the applicants in both the claim petitions. Nevertheless, it was admitted that the offending vehicle belonged to M.A.C.A.No.1683/2009 -:4:- the first respondent. It was stated that there was no negligence on the part of the driver of the offending vehicle-'Rajagopal'. The amount of compensation claimed was excessive and exorbitant. 4. The third respondent filed a written statement contending that the accident occurred solely due to the negligence of the driver of the offending vehicle. Hence, the third respondent sought to be exonerated of any liability. 5. The applicants in the two cases produced and marked Exts.A1 to A6 in evidence. The driver of the offending was examined as RW1 and the insurance policy was marked in evidence as Ext.B1. 6. The Tribunal allowed the captioned original petitions, by permitting the applicant to realise an amount of Rs.44,400/- with interest and costs from the first respondent. 7. Aggrieved by the impugned award, the first respondent – owner of the offending vehicle is in M.A.C.A.No.1683/2009 -:5:- appeal. 8. Heard; Sri. Subhash Syriac, the learned counsel appearing for the appellant/first respondent. 9. Even though this appeal was filed as early as in the year 2009, the same has not been admitted, since service of notice on the respondents were not complete. It is only on 08.09.2021 that the service was complete and the delay was condoned. 10. The principle grounds of challenge in this appeal are: - _(i) that the driver of the bus was not made a party before the Tribunal. Hence, the claim petition is bad for non-jonder of necessary parties._ - _(ii) that the income of the applicant fixed by the Tribunal was on the higher side._ ## **Ground No.(i)** 11. This Court in _**Oriental Insurance Company**_ - _**Ltd.v. Shobana Omanakuttan and others**_ M.A.C.A.No.1683/2009 -:6:- [2015 KHC 406] and _**Anuradha Varma v. State of Kerala**_ (1993 (2) KLT 777) has categorically held that, even if the driver of the offending vehicle is not on the party array, the claim petition is maintainable and is not bad for non-joinder of necessary parties. The owner and insurer of the vehicle are necessary parties, if the vehicle is covered by valid insurance, otherwise, only the owner is a necessary party. In the light of the above declaration of law Ground No.(i) fails and the same is answered against the applicant. ## **Ground No.(ii)** 12. The applicant had claimed that he was a daily labourer and earning a monthly income of Rs.3,500/-. The Tribunal fixed the notional income of the applicant at Rs.2,000/- per month. 13. In _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ [(2011) 13 SCC 236], the Hon'ble Supreme Court has M.A.C.A.No.1683/2009 -:7:- fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 14. Following the above benchmark and considering the fact that the accident occurred in the year 2003, I am of the firm opinion that the notional income of the applicant fixed by the Tribunal at Rs.2,000/- is justifiable and proper, if not on the lower side. Therefore, I hold that Ground No.(ii) is also untenable in law. 15. On a comprehensive appreciation of the pleadings, materials on record, the elaborate findings rendered by the Tribunal and also taking note of the fact that the appeal is pending since in the year 2009 without admission, I do not find any error in the compensation awarded by the Tribunal. 16. The Honourable Supreme Court in _**New Indian Assurance Company Ltd. v. Kiran Singh &**_ _**Others**_ [2004 AIR SCW 4212] has depreciated the M.A.C.A.No.1683/2009 -:8:- practice of insurance companies contesting genuine claims in a routine manner and dragging the parties to court and wasting enormous time and money. 17. It is to be borne in mind that the accident occurred as early as on 15.09.2003. It is nearly two decades that the applicant has been knocking at the doors of the courts seeking compensation. It is trite, that the Tribunals are permitted to do some guess work and also exercise its discretion in awarding reasonable and just compensation, for which there cannot be any straight jacket formula based on arithmetic exactitude. I find that the Tribunal has, after a threadbare analysis of the facts, judicially exercised its powers based on the provision of the Act and the authoritative precedents of the Honourable Supreme Court, arrived at the conclusion in the impugned award. I do not find any justifiable grounds in the memorandum of appeal warranting admission of the appeal, which would only be a wastage of judicial M.A.C.A.No.1683/2009 -:9:- time and harassment to the respondents. In the result, following the ratio in _**Kiran Singh**_ (supra), I hold that the appeal is devoid of any merits and does not warrant any admission. Resultantly, the appeal is dismissed. Taking note of the fact that, despite service of notice on the applicant before the Tribunal, there is no appearance for him before this Court. The Tribunal shall avail the services of the District Legal Services Authority and inform the applicant that the appeal has been dismissed and that he has right to recover the compensation amount, pursuant to dismissal of this appeal. The Registry shall forward a copy of this judgment to the Tribunal for necessary compliance. Sd/- ## **C.S.DIAS,JUDGE** DST //True copy/ P.A.To Judge