Maniyan v. Nizarudeen and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **& THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **THURSDAY, THE 4TH DAY OF AUGUST 2016/13TH SRAVANA, 1938** **MACA.No. 1195 of 2015 ()** **------------------------------------AGAINST THE AWARD IN OPMV 232/2003 of M.A.C.T.,ATTINGAL DATED 04-05-2010** **APPELLANT(S)/APPELLANT/APPLICANT:** **----------------------------------------------------------** **MANIYAN, S/O.LATE BHASKARAN NADAR, BLOCK NO 42, SABU BHAVAN, MAJAPPARA COLONY, THALIKKUZHY P O, VIA KALLARA, THIRUVANANTHAPURAM DIST, PIN-695 612.** **BY ADVS.SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.PRATHAP PILLAI SRI.BENOJ C AUGUSTIN SRI.SEBIN THOMAS SRI.VIVEK V. KANNANKERI SRI.VISHNU BHUVANENDRAN** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------------------------------** ## **1. NIZARUDEEN,** **BLOCK NO 101,ESM COLONY, KULATHUPUZHA, KOTTARAKKARA P O, KOLLAM DIST,PIN-691 506. *(CORRECTED)** *** THE FIRST RESPONDENT'S POST OFFICE IN THE ADDRESS PORTION IS CORRECTED AS “KULATHUPUZHA POST, KOLLAM DISTRICT - 691 310” AS PER ORDER DATED 03.06.2016 IN I.A.NO.1812/16 IN MACA.1195/15** ## **2. RAJAN NAIR,** **LATHA BHAVAN, PATTAZHI, KILIMANOOR, THIRUVANANTHAPURAM DIST, PIN-695 601. *(DELETED)** ***RESPONDENT NO.2 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 09.06.2016 IN I.A.NO.1928/16 IN MACA.1195/15** ## **3. ANIL KUMAR,** **S/O.RAVEENDRAN, CHALIL VEEDU, MANJAPPARA, THALIKKUZHHI, PULIMATH P O, THIRUVANANTHAPURAM DIST, PIN-695 612.** **4. M/S.UNITED INDIA INSURANCE CO LTD., DIVISIONAL OFFICE NO 1, CWC BUILDING, LMS COMPOUND,PALAYAM, THIRUVANANTHAPURAM-695 033.** **R4 BY ADVS.SRI.JOHN JOSEPH VETTIKAD SRI.C.JOSEPH JOHNY R3 BY ADVS. SRI.T.B.HOOD SMT.M.ISHA SRI.AMAL KASHA ADV. SRI A R GEORGE(AMICUS CURIE)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DG** ## **P.N.RAVINDRAN & A.MUHAMED MUSTAQUE, JJ.** -------------------------------------------------------- M.A.C.A.No.1195 of 2015 ---------------------------------------------Dated this the 4[th] day of August, 2016 ## **J U D G M E N T** ## **P.N.Ravindran, J.** The appellant is the claimant in O.P.(MV) No.232 of 2003 on the file of the Motor Accidents Claims Tribunal, Attingal, a petition filed by him under Section 166 of the Motor Vehicles Act, 1988 claiming the sum of 10,00,000/- as compensation for the injuries₹ sustained by him in a motor accident which took place on 22.01.2002. The appellant had in the claim petition averred that at about 6 PM on 22.12.2002, while he was walking along the footpath on the southern side of the Kilimanoor-Attingal public road, he was knocked down by a jeep bearing registration No.KL7/T 952, driven in a rash and negligent manner by the third respondent and in that accident he sustained serious injuries and had to undergo treatment as an inpatient at Medical College Hospital, Thiruvananthapuram. He had in the claim petition averred that at the time of accident he was a vegetable vendor at Pettah market, earning a monthly income of 5,000/- and on₹ account of the injuries sustained in the accident he has become permanently disabled. He contended that he is a victim of spastic paralysis of the right upper and lower limbs and that he has to depend on others even for his primary needs. He contended that M.A.C.A.No.1195/2015 2 the accident took place solely on account of the rash and negligent driving of the third respondent. The registered owner of the jeep was the first respondent in the claim petition. The de facto owner/insured of the jeep was the second respondent and the insurer of the jeep was the fourth respondent. 2. Though notice was served on respondents 1 and 3 personally, they did not enter appearance. With the result, they were set ex parte on 21.08.2013. Since personal service could not be effected on second respondent/the insured, notice was served by paper publication. He was also later set ex parte. The fourth respondent, the insurer of the jeep entered appearance and filed a written statement dated 06.10.2004 wherein it admitted the fact that the motor vehicle involved in the accident was covered by a valid insurance policy issued by it. However, it contended in paragraph 3 of the written statement that the driver of the jeep had no badge at the time of accident and had driven the vehicle without proper license. It was contended that since the third respondent had no badge, it amounts to a clear violation of the policy conditions. The fourth respondent further contended that there was no negligence on the part of the driver of the jeep and that the accident took place on account of the negligence of the claimant himself. The fouth respondent also contended that the compensation claimed is exorbitant and excessive. M.A.C.A.No.1195/2015 3 3. Before the Motor Accidents Claims Tribunal, no oral evidence was adduced on either side. However, on the side of the claimant, Exhibits A1 to A13 were produced and marked. The case records summoned from Medical College Hospital, Thiruvananthapuram on application filed by the claimant were marked as Ext.X1. After considering the rival contentions and the evidence on record, the tribunal held, relying on Ext.A1 FIR, Ext.A2 scene mahazar and Ext.A5 charge sheet that the accident took place on account of the negligence of the third respondent, the driver of the jeep. The tribunal also held that in that accident, the claimant sustained serious injuries. The tribunal thereafter awarded the sum of 2,02,425/- (wrongly mentioned as 2,20,425/-₹ ₹ in the award) as compensation under various heads as detailed below: Loss of earnings for five months : ₹10,000/- (2000x5) Transportation charges : ₹1,500/Extra nourishment : ₹1,000/Damage to clothing : ₹250/Medical expenses : ₹5,775/Bystander's expenses : ₹2,500/Compensation of disability : ₹1,24,800/Compensation for loss of amenities : ₹41,600/Compensation for pain and sufferings : ₹15,000/----------------------TOTAL : ₹2,02,425/- 4. The tribunal thereafter proceeded to consider the question whether the insurer is liable to indemnify the insured and M.A.C.A.No.1195/2015 4 held relying on the fact that the insured is some one other than the registered owner of the motor vehicle that the insurer cannot be held liable to indemnify the registered owner. An award was accordingly passed allowing the claimant to realize the sum of ₹2,20,425/- together with interest at the rate of 7.5% per annum from the date of petition till realization from the registered owner namely the first respondent before tribunal and his assets. The claimant was also held entitled to realize the sum of 2,000/- as₹ costs. The claimant has, dissatisfied with the quantum of compensation awarded by the tribunal and aggrieved by the exoneration of the insurer, filed this appeal. 5. We heard Sri.Nagaraj Narayan, learned counsel appearing for the appellant, Sri.T.B.Hood, learned counsel appearing for the third respondent, Sri.John Joseph Vettikkad, learned counsel appearing for the fourth respondent and Sri.A.R.George, learned counsel, appointed by this court as amicus curiae. Sri.Nagaraj Narayan, learned counsel appearing for the appellant contended that the compensation awarded by the tribunal is meager and inadequate. Referring to Ext.A11 certificate dated 13.07.2004 issued by the Assistant Professor of Orthopedics, Medical College, Thiruvananthapuram, learned counsel for the appellant contended that the claimant has right side hemiplegia with only a flicker of contraction of finger and toes, that the he has M.A.C.A.No.1195/2015 5 no power in the muscles of the right upper and lower limbs, that he walks with a right sided hemiplegia gait and that it was having regard to the medical condition of the claimant when he was examined on 12.07.2004, that the doctor has in Ext. A11 certificate assessed the whole body disability of the claimant as 48%. Learned counsel submitted that the claimant had appeared in court on 07.10.2009 and the tribunal has taken note of the fact that though the left side of the claimant is normal, his right side is paralyzed and that he wears a cervical collar. Learned counsel submitted that in such circumstances, merely for the reason that the doctor who issued Annexure A11 certificate has not been examined, the tribunal erred in scaling down the percentage of disability from 48% to 40%. Learned counsel also contended that the estimate of monthly income by the tribunal is meager and that it has not taken into account future prospects. Learned counsel contended that the compensation awarded under the head permanent disability is therefore, liable to be enhanced. As regards the exoneration of the insurer, learned counsel for the appellant contended relying on the recent decision of a Division Bench of this court in **Unnikrishnan** **K.A v. Vijayakumar K.S [2016 (3) KHC 83 (DB)]** that the insurer cannot claim exoneration on the ground that the policy was taken in the name of previous owner even after the transfer of the motor vehicle and consequential changes in the certificate of M.A.C.A.No.1195/2015 6 registration. Learned counsel contended that in such circumstances, this appeal may be allowed and the appellant allowed to realize the enhanced compensation award by this court from the fourth respondent insurer. 6. Sri.A.R.George, learned amicus curiae submitted inviting our attention to the decision of the Full Bench of the Andhra Pradesh Hight Court in **Madineni Kondaiah and others** **v. Yaseen Fatima and others [AIR 1986 Andhra Pradesh 62 (FB)]** and decisions of the Apex Court in **Complete Insulations (P) Ltd v. New India Assurance Co.Ltd [(1996) 1 SCC 221], New India Assurance Co.Ltd v. Sheela Rani (SMT) and others [(1998) 6 SCC 599]** and **G.Govindan v. New India Assurance Co.Ltd and others [(1999) 3 SCC 754]** that the insurer cannot in relation to claims by third parties seek exoneration from liability on the ground that no intimation regarding the transfer of the motor vehicle was given by the insured. Learned amicus curiae submitted that if intimation regarding the transfer of the motor vehicle is not given, the only consequence is that the transferee cannot enforce the policy in respect of any injury to his person or damage to the motor vehicle, but the insurer cannot seek exoneration from liability to third parties. Learned amicus curiae also submitted that the public liability of the transferor so far as third party risk is considered continues even after the transfer of the motor vehicle, M.A.C.A.No.1195/2015 7 notwithstanding the fact such transfer has not been intimated to the insurer. Sri.T.B.Hood, learned counsel appearing for the third respondent submitted that the third respondent possessed a valid driving license on the date of the accident, that he was not prosecuted for the offence punishable under Section 3(1) of the Motor Vehicles Act, 1988, that even in the charge sheet all that is stated is that he did not possess a badge and therefore, in the absence of any evidence on the side of the insurer to show that the non-possession of the badge had resulted in the accident, the insurer cannot claim exoneration from liability. 7. Per contra, Sri.John Joseph Vettikkad, learned counsel appearing for the fourth respondent insurer contended, referring to and relying on Annexure A5 charge sheet that as the motor vehicle involved in the instant case was used to carry passengers for hire or reward, it is evident that the policy of insurance is in relation to a taxi and therefore, as it has come out in evidence that the the third respondent driver did not possess a license to drive a transport vehicle or a badge, the insurer is entitled to recover the amount of compensation paid by it under the award from the insured. Learned counsel also contended that even assuming that there was no breach, as the intimation regarding transfer of the motor vehicle had not been given to the insurer, the insurer is entitled to realize the amount of compensation paid under the M.A.C.A.No.1195/2015 8 award from the insured. Learned counsel also placed reliance on the decision of the Apex Court in **Rihki Ram and another v. Sukhrania (SMT) and others [(2003) 3 SCC 97]** in support of the said submission **.** 8 **.** We have considered the submissions made at the Bar by learned counsel appearing on either side. We have also gone through the pleadings and the materials on record. The first question to be considered is whether the insurer is entitled to contend for the position that it has no liability to indemnify the insured against risk to third parties. The accident in the instant case took place on 22.12.2002. It is not in dispute that Rajan Nair, the second respondent was the registered owner of the motor vehicle involved in the accident. The said motor vehicle was sold to the first respondent with effect from 20.01.2001. Necessary changes were also effected in the certificate of registration. As on the date of the accident, it was first respondent who was the registered owner of the motor vehicle. It was after the motor vehicle was transferred by the second respondent to the first respondent that the policy of insurance which was earlier in force was renewed for the period commencing from 26.03.2002 and ending with 25.03.2003. The insurance policy was however issued in the name of the second respond who had ceased to be the owner on 20.01.2002. It was on account of the said fact that the tribunal M.A.C.A.No.1195/2015 9 held that the fourth respondent had no liability to indemnify the first respondent on the date of the accident namely 22.12.2002. Though the fourth respondent insurer had filed a written statement, it did not raise a plea that since the insured was not the registered owner as on the date of the accident or on the date of issuance of the policy of insurance, it is not labile to indemnify the insured. Such a plea was put forward only during the course of the arguments in the tribunal. 9. Shorn of details, the substance of the contention raised by the insurer was that as the transfer of the motor vehicle was not duly intimated to it, the policy lapsed. The question whether the public liability of the transferor as far as third party risk is concerned continues even after the transfer, was considered by a Full Bench of the Andhra Pradesh High Court in **Madineni Kondaiah** (supra). After considering the relevant statutory provisions and the case law on the point, the Full Bench held that any claim of the transferee in respect of his property or his person cannot be enforced against the insurer. The situation was held to be different as regards third party risk. It was held that so long as the obligation under Section 31 read with Section 94 of the Motor Vehicles Act, 1939 is not fulfilled, he continues to have insurable interest and public liability and that the policy will be kept alive in respect of third party risk. The said proposition was accepted and M.A.C.A.No.1195/2015 10 approved by the Apex Court **in Complete Insulations Pvt.Ltd v. New India Assurance Co.Ltd [(1996) 1 SCC 221]** and later in **New India Assurance Co.Ltd. v. Sheela Rani(Smt) and others [(1996) 6 SCC 599]** . The question again arose before the Apex Court in **G.Govindan v. New India Assurance Co.Ltd and others [(1999) 3 SCC 754].** After a survey of the case law on the point and the relevant statutory provisions the Apex Court held in **Govindan** (supra) that the insurance against third party risk is compulsory and once the insurer has undertaken the liability to third parties incurred by the persons specified in the policy, the third party’s right to recover any amount is not affected by the provisions contained in the Motor Vehicles Act, 1939 or the conditions in the policy. The very same issue was recently considered by a Division Bench of this court in **Unnikrishnan** (supra). In that case, the accident took place on 03.06.1997. The registered owner as on that date was the fourth respondent before the tribunal. The policy of insurance covered the period from 07.01.1997 to 06.01.1998. It stood in the name of another person though the fourth respondent before the tribunal had become the registered owner on 19.06.1996. The tribunal accepted the contention of the insurer that as the policy was taken in the name of the former owner suppressing the material fact that the vehicle has been transferred to the fourth respondent on 19.06.1996, it is M.A.C.A.No.1195/2015 11 hit by Section 149(2) (b) of the Motor Vehicles Act, 1988. Setting aside the decision of the tribunal, a Division Bench of this court held that as the insurer has chosen to issue a policy of insurance without taking pains to verify the registration certificate particulars and the said policy was valid on the date of accident, the insurer is liable to indemnify the insured in respect of claims by third parties, notwithstanding the transfer of motor vehicle even prior to the issuance of the policy. The case on hand is, on all fours covered by the principles laid down by the Apex Court and this court in the aforesaid decisions. We are therefore, of the considered opinion that the tribunal erred in exonerating the insurer from liability on the ground that the policy of insurance was issued in the name of the second respondent, after he ceased to be the owner, he having transferred the motor vehicle to the first respondent. 10. That takes us to the question whether the compensation awarded by the tribunal merits enhancement. The appellant has pleaded and the materials on record disclose that he was a vegetable vendor at Pettah market. Ext.A1 FIR, was registered on 24.12.2002 based on the information given by the claimant from Medical College Hospital, Thiruvananthapuram. He had in the first information statement stated that he is a vegetable vendor. The claimant had in the claim petition averred in categorical terms that he was a vegetable vendor at Pettah market, earning a monthly M.A.C.A.No.1195/2015 12 income of Rs.5,000/-. It is evident from the materials on record that at the earliest point of time the claimant had stated that he is a vegetable vendor. The tribunal has also accepted the said statement. The tribunal however estimated his monthly income as Rs.2000/- on the ground that he has not adduced any evidence to prove his monthly income. The accident in the instant case took place on 22.12.2002. In respect of a claim by coolie, 4,500/- was₹ taken as the monthly income in **Ramachandrappa v. Manager, Royal Sundaram Aliance insurance Co.Ltd. [AIR 2011 SC 2951].** The claimant being a vegetable vendor, we find no reason or justification to insist that he should have produced documentary evidence to prove the statement in the claim petition that he was earning a monthly income of Rs.5,000/-. The claimant had stated that he was a vegetable vendor at Pettah market. He was residing at Kallara. The accident took place near Puthiyakavu market on Kilimanoor-Attingal Road. Having regard to the materials on record and the attendant circumstances, we are persuaded to accept the case set out by the appellant that he was a vegetable vendor at Pettah market. Having regard to the ground realities, we are of the considered opinion that this court can safely proceed on the basis that he was earning a monthly income of Rs.4,500/-. It has come out in evidence that the claimant is hemiplegic. He had appeared before the tribunal and the tribunal was satisfied that his M.A.C.A.No.1195/2015 13 right side is paralyzed. Notwithstanding that fact, the tribunal scaled down the percentage of disability assessed by the doctor in Ext.A11 from 48% to 40% without assigning any reasons. Having regard to the medical condition of the claimant, we are of the opinion that the tribunal erred in scaling down the percentage of disability from 48% to 40%. Though the claimant had stated that he was aged only 42 years, in the absence of evidence to prove his actual age, the tribunal placed him in the age group 45 to 50. Learned counsel appearing for the claimant was not in a position to place any material before us, to substantiate the averment in the claim petition that the claimant was aged only 42 years on the date of accident. We, therefore, do not propose to alter the multiplier selected by the tribunal. The tribunal has however not taken into account future prospects for the purpose of computing the compensation payable under the head permanent disability. The Apex Court has in **Syed Sadiq and others v.Divisional Manager, United India Insurance Company Ltd. [(2014)2 SCC 735]** held that future prospects can be taken into account even in personal injury claims. Computed on that basis, the compensation payable to the appellant under the head compensation for permanent disability will be 4,500 x 130% = 5,850 x 12 x 13 x 48/100 = ₹ ₹ ₹ 4,38,048/-. Though the claimant is hemiplegic, the tribunal has awarded only the sum of Rs.1,24,800/- under the head permanent M.A.C.A.No.1195/2015 14 disability. The tribunal has in addition awarded the sum of ₹ 10,000/- as compensation for loss of earnings for a period of five months. Since the claimant is hemiplegic and we are awarding compensation for permanent disability, we are of the opinion that the said sum of 10,000/- should also be given credit to and₹ adjusted against the sum of 4,38,048/-₹ awarded by us as compensation under the head compensation for permanent disability. After giving credit to the sum of 1,24,800/-+ 10,000/-₹ awarded by the tribunal under the head loss of earnings and compensation for permanent disability, we award to the appellant/claimant an additional sum of 3,03,248/-₹ as compensation under the head permanent disability. 11. The claimant had in the claim petition stated that he is a victim of spastic paralysis of the right upper and lower limbs and that he is dependent on others even for his primary needs. The fact that he is hemiplegic is not in dispute. Ext.A11 certificate issued from Medical College Hospital, Thiruvananthapuram also establishes the said fact. Being a hemiplegic he will have to certainly depend on others even for his primary needs. For the rest of life he will have to put up with the inconveniences and discomforts as a result thereof. The tribunal has taking into account the aforesaid facts, awarded 1/3 of the amount awarded under the head compensation for permanent disability, as M.A.C.A.No.1195/2015 15 compensation under the head loss of amenities. Considering the medical condition of the claimant and the attendant consequences, we are of the opinion that ¼ of the sum of 4,38,048/-₹ awarded by us as compensation for permanent disability namely the sum of Rs.1,09,512/- can be awarded as compensation under the head loss of amenities. After giving credit to the sum of Rs.41,600/- awarded by the tribunal, we award a further sum of ₹67,912/as compensation under that head. The compensation awarded under the other heads does not in our opinion call for any enhancement. We accordingly allow the appeal, set aside the award passed by the Motor Accidents Claims Tribunal on 4.5.2010 to the extent it exonerates the insurer from liability and award to the appellant/claimant, an additional sum of ₹3,71,160/as compensation over and above the compensation awarded by the tribunal. The fourth respondent insurer shall deposit the amount awarded by the tribunal as compensation together with interest at the rate awarded by the tribunal as also the sum of 2,000/-₹ awarded as costs within two months from today. The fourth respondent insurer shall also deposit the sum of ₹3,71,160/awarded by us as compensation by this judgment together with interest at 9% per annum from the date of petition till the date of deposit, except for the period 1696 days, having regard to the terms of the order passed by this court on the application to M.A.C.A.No.1195/2015 16 condone the delay in filing the appeal, within two months from today. Upon such deposits being made, 50% of the amount deposited shall be released to the appellant/claimant. The balance amount shall be kept in fixed deposit in his name in a nationalized bank for a period of two years, reserving liberty with him to withdraw the interest accruing on the deposit every month. No costs. ## **P.N.RAVINDRAN (JUDGE)** ## **A.MUHAMED MUSTAQUE (JUDGE)** DG