Mathai v. Sarun Raj and Jayaprakash and The New India Assurance Co. Ltd.

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 7[TH] DAY OF DECEMBER 2022 / 16TH AGRAHAYANA, 1944 MACA NO. 1648 OF 2013 ``` ``` AGAINST THE AWARD DATED 10.05.2013 IN OP(MV) NO.242 OF 2010 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA ``` ## `APPELLANT/PETITIONER:` ``` MATHAI, S/O.ULAHANNAN, KULAPPALLIL HOUSE, MANNACKANADU,KURAVILANGADU. ``` ``` BY ADVS.SRI.MATHEW JOHN SRI.DOMSON J.VATTAKUZHY ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1SARUN RAJ, S/O.RAJU, PLACKAMATTATHIL HOUSE, MANNACKANADU,KURAVILANGADU - 686633 2JAYAPRAKASH, S/O.RAGHUVARAN NAIR, KOOTTARAPPALLIL HOUSE, ELACKADU POST, VAYALA- 686 514. 3THE NEW INDIA ASSURANCE CO.LTD., PALA 686 575. R3 BY ADVS.SRI.M.RAJAGOPALAN SRI.P.BABU KUMAR ``` ``` THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.1648 of 2013 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 7[th] day of December, 2022** The appeal on hand is originated from an award passed by Motor Accidents Claims Tribunal, Pala (for short ‘the Tribunal’) on 10.05.2013 in O.P.(MV) No.242/2010. 2. For the sake of clarity, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status before the Tribunal. 3. The appellant is the petitioner who claimed compensation for the injuries sustained by him in a motor accident occurred on 16.01.2009. As per the averments of him in the Original Petition while he was walking through Mannackanadu-Kurichithanam public road for collecting plantains from his neighbouring houses, a goods autorickshaw bearing Registration No.KL-5/V-7467 knocked him down due to the rash and negligent driving by it’s driver. He sustained serious injuries and was rushed to ``` M.A.C.A.No.1648 of 2013 ``` ``` 3 ``` Medical College Hospital, Kottayam for treatment. He was transported therefrom to St.Vincent Hospital, Kuravilangadu and finally to Matha Hospital, Thellakom for better medical management. The driver, the owner and the insurer of the autorickshaw were arrayed as respondents 1 to 3 in the Original Petition. A sum of `3,75,000/- was claimed as compensation from the respondents jointly and severally. 4. The Tribunal on the basis of the evidence adduced by the petitioner arrived at a sum of `1,34,144/- as the compensation payable. The 3[rd] respondent insurer was found not liable to indemnify the insured for the reason that the petitioner was a gratuitous passenger in the vehicle. Tribunal made the 2[nd] respondent, the insured to pay the compensation in favour of the petitioner with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. Aggrieved thereby, the petitioner has approached this Court in the appeal on hand. 5. It is noticed that the 1[st] and 2[nd] respondents who have been served with notice did not turn up to contest the ``` M.A.C.A.No.1648 of 2013 ``` ``` 4 ``` Original Petition. 3[rd] respondent filed written statement where it was contended that the goods autorickshaw overturned at the place of accident and the petitioner who was a passenger in it sustained injuries. It was contended further that the policy issued by them has no coverage for the risk of passengers travelling in a goods autorickshaw and sustained injuries in the motor accident. Arguments were also advanced to the effect that a false case was set up in a private complaint filed by the petitioner that he was a pedestrian on the road and knocked down by the autorickshaw. In the wound certificate, it was reported that the motor accident was occurred while the petitioner was travelling in the goods autorickshaw. The Original Petition was sought to be dismissed for the reasons. 6. Evidence of the petitioner was recorded as PW1 by an Advocate Commissioner as per direction issued from the Tribunal. A witness was also examined on his side as PW2. Exts.A1 to A15 were also marked on his side. Exts.B1 to B3 were marked in evidence by the 3[rd] respondent. On the basis of the oral evidence of PW1 and the documentary ``` M.A.C.A.No.1648 of 2013 ``` ``` 5 ``` evidence on record the Tribunal found that the motor accident was occurred due to the rash and negligent driving of the goods autorickshaw by the 1[st] respondent. 7. The Tribunal was also convinced from the evidence on record that serious injuries were caused to the petitioner in the motor accident occurred on 16.01.2009 and therefore he is entitled to get compensation. A sum of `1,34,144/was also arrived at as the compensation payable and liability was fixed on respondents 1 and 2 to pay the compensation. 2[nd] respondent was directed to deposit the same in favour of the petitioner with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of deposit, within a period of 90 days from the date of the award. 8. Sri.Mathew John, the learned counsel for the petitioner urged that the Tribunal went wrong in fastening liability on the 1[st] and 2[nd] respondents, in spite of the factum established by evidence that the goods autorickshaw involved in the motor accident was insured with the 3[rd] respondent at the relevant time of the motor accident. ``` M.A.C.A.No.1648 of 2013 ``` ``` 6 ``` According to him, the Tribunal though observed that the petitioner has suffered 100% functional disability on account of the injuries sustained by him in the motor accident, failed to award any sum as compensation towards permanent disability. 9. According to the learned counsel, compensation stood awarded in favour of the petitioner towards pain and sufferings, loss of amenities and enjoyments in life and future treatment are inadequate. Modification of compensation stood awarded by the Tribunal under the heads transportation expenses, extra nourishment, damages to clothing and bystander expenses was also sought. The learned counsel for the 3[rd] respondent canvassed on the contrary for maintaining the compensation stood awarded by the Tribunal in the impugned award under the above heads stating that those are just and reasonable. He also pointed out that lot of discrepancies are there in the private complaint filed to set the law in motion with reference to the motor accident and also in the proof affidavit filed in lieu of chief examination. According to him, the claim of the ``` M.A.C.A.No.1648 of 2013 ``` ``` 7 ``` petitioner in the private complaint was that he was accompanying bunches of plantains loaded in a goods vehicle. But, in the proof affidavit as well as in the claim petition he had taken a stand that he was walking through Mannackanadu-Kurichithanam public road for collecting plantains from neighbourhood and then was hit by a goods autorickshaw bearing Registration No.KL-5/V-7467 due to the rash and negligent driving by it’s driver, who was arrayed as the 1[st] respondent in the Original Petition. In the backdrop of the inconsistent versions of the petitioner, the learned counsel urged to treat the petitioner as a passenger in the goods autorickshaw as was considered by the Tribunal. According to him, the Tribunal is justified in fixing liability on respondents 1 and 2 to pay compensation to the petitioner, since the policy issued by the 3[rd] respondent did not cover the risk of a passenger travelling in a goods autorickshaw. The learned counsel seeks for maintaining the compensation stood awarded by the Tribunal and fixation of liability on respondents 1 and 2. ``` M.A.C.A.No.1648 of 2013 ``` ``` 8 ``` 10. True that the petitioner gave inconsistent versions about the motor accident. In the Original Petition his plea was that while walking through MannackanaduKurichithanam public road a goods autorickshaw bearing Registration No.KL-5/V-7467 knocked him as well as his partner in his job and thereby both of them sustained injuries. In the proof affidavit filed in lieu of chief examination, he had taken the very same version as pleaded in the Original Petition. After setting the law in motion, the police has laid a final report which was marked in evidence before the Tribunal as Ext.A3. It was stated there that the motor accident was occurred when the goods autorickshaw bearing Registration No. KL-5/V-7467 hit the petitioner and his partner while they were walking through Mannackanadu- Kurichithanam public road. The oral evidence adduced by PW1 corroborates with his pleadings in the Original Petition and those formed basis for consideration of the Tribunal in favour of the 3[rd] respondent while appreciating the evidence. The discrepancies pointed out by the learned counsel with reference to various ``` M.A.C.A.No.1648 of 2013 ``` ``` 9 ``` documents are irrelevant for consideration in the case on hand especially when the 3[rd] respondent failed to adduce evidence to establish that Ext.A3 is a document created on account of collusion among the petitioner and the police. 11. The injuries sustained by the petitioner were established from the medical documents marked in evidence as Exts.A4, A6, A7, A8 and A15. The petitioner had sustained cervical spine injury in the motor accident and at present he is totally in a condition of quadriplegia. According to PW1, he has become a vegetable following the injuries sustained in the motor accident. He availed treatment from Medical College hospital, Kottayam, St.Vincent Hospital, Kuravilangad and finally at Matha Hospital, Thellakom. 12. It is established from the evidence that the petitioner was unable to move on his own. But the petitioner did not cause him to be examined by a Medical Board and got his permanent disability certified. Since bedridden due to quadriplegia, the petitioner may not be able to do the work he was attending, prior to the motor ``` M.A.C.A.No.1648 of 2013 ``` ``` 10 ``` accident. He would not be able to do any other job in the said physical condition. 13. This Court is constrained in the above context to consider the petitioner as 100% functionally disabled. The monthly income was fixed by the Tribunal as `3,500/-, which being too low as far as the year of the motor accident is concerned, this Court finds it appropriate to fix `7,000/as the monthly income. When the functional disability is considered as 100%, `28,000/- stood awarded by the Tribunal as compensation towards loss of earning is only to be discarded and this Court do so. As compensation towards transportation expenses, `3,500/- stood awarded being low, is modified to `7,000/-. Compensation stood awarded by the Tribunal towards extra nourishment also being low, is enhanced to `10,000/-. 14. The petitioner undoubtedly is in need of a bystander throughout his life. The Tribunal has awarded only `5,000/- as compensation towards bystander expenses and it being a sum totally unreasonable, this Court is inclined to adopt the multiplier method in accordance with ``` M.A.C.A.No.1648 of 2013 ``` ``` 11 ``` the dictum in **Kajal v. Jagdish Chand and Others** [(2020) 4 SCC 413] for arriving at compensation. `1,000/- is taken as the payment to the bystander monthly and thus `1,08,000/- (`1,000/- x 12 x 9) is arrived at as the total compensation payable. The compensation stood awarded by the Tribunal towards pain and suffering and loss of amenities and enjoyments in life being disproportionate to the sufferings of the petitioner following the motor accident, those are modified to `60,000/- and `1,00,000/respectively. 15. As per the claim of the petitioner in the Original Petition he was aged 60 years at the relevant time of the motor accident. Evidence is not forthcoming from the 3[rd] respondent to establish on the contrary and therefore, this Court is inclined to maintain the age of the petitioner as 60 years and 9 as the multiplier applicable. The physical condition of the petitioner following the motor accident would undoubtedly affect his future prospects. In view of **National Insurance Co. Ltd. v. Pranay Sethi and others [2017 (4) KLT 662(SC)]** , the petitioner being a self ``` M.A.C.A.No.1648 of 2013 ``` ``` 12 ``` employed man claiming to have a fixed sum as monthly earning, 10% is liable to be added to the monthly income in consideration of loss of future prospects. Thus, `7,700/(`7,000/- + 10% of `7,000/-) is arrived at. When compensation for permanent disability is calculated on the basis of the modified factors as abovementioned, the petitioner will get `8,31,600/- (`7,700/- x 12 x 9 x 100/100) as compensation towards functional disability. 16. In the above manner of calculation afresh, the petitioner will get `10,28,100/- [(`8,31,600/- + `30,000/- + `80,000/- + `3,500/- + `8,000/- + `1,03,000/-) - (`28,000/-)] (Rupees Ten lakh twenty eight thousand and one hundred only) as additional compensation. 17. The motor accident in question was established as occurred with the involvement of a goods autorickshaw and rash and negligent driving by it’s driver. The petitioner was walking through the public road. The Tribunal has relied on the history of the motor accident reported in the accident register cum wound certificate marked in evidence as Ext.B3 to arrive at a finding that injuries were caused to the ``` M.A.C.A.No.1648 of 2013 ``` ``` 13 ``` petitioner while travelling in a goods autorickshaw and thus exonerated the 3[rd] respondent from liability to compensate the petitioner and to indemnify the insured. In the light of the pleadings in the Original Petition and the oral evidence tendered by PW1, this Court has already taken the view that the petitioner sustained injuries when the goods autorickshaw hit him while walking through the road. Admittedly a policy was issued by the 3[rd] respondent for the goods autorickshaw. In the above circumstances, policy having been admitted by the 3[rd] respondent for the vehicle, it is liable to indemnify the insured for the compensation payable to the petitioner. The finding of the Tribunal exonerating the 3[rd] respondent from liability to indemnify the insured was based on an erroneous appreciation of evidence. The Tribunal is totally erred in fixing liability on the 1[st] and 2[nd] respondents and directing the 2[nd] respondent to pay the compensation arrived at, in favour of the petitioner. In the backdrop of the discussion hereinabove made, this Court is inclined to allow the appeal. In the result, appeal is allowed in part. `10,28,100/- ``` M.A.C.A.No.1648 of 2013 ``` ``` 14 ``` (Rupees Ten lakh twenty eight thousand and one hundred only) is arrived at as the additional compensation payable in favour of the petitioner. Interest is also ordered to be paid for the additional compensation at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. 3[rd] respondent, shall pay the additional compensation now arrived at with interest accrued on it at the rate aforestated, within a period of two months from the date on which a certified copy of this judgment is received. Disbursal of the compensation in favour of the petitioner with the interest accrued and the costs, shall be in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. **MARY JOSEPH** **JUDGE** MJL