M.M. Baiju v. Balachandran, United India Insurance Co. Ltd. and P. Siddique

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 22[ND] DAY OF OCTOBER 2021 / 30TH ASWINA, 1943** ## **MACA NO. 2424 OF 2008** **AGAINST THE AWARD DATED 10.12.2007 IN OPMV 477/2000 OF THE PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE,** ## **APPELLANT/PETITIONER:** M.M.BAIJU, AGED 28 YEARS, S/O LATE VELAYUDHAN CHAMBAYIL HOUSE, THONDILKADAVU, OLAVANNA POST, KOZHIKODE. BY ADVS. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH ## **RESPONDENTS/RESPONDENTS:** - 1 BALACHANDRAN, LAKSHMI PURAM KALLIASSERY POST, KANNUR. - 2 M/S. UNITED INDIA INSURANCE CO.LTD. DIVISIONAL OFFICE, P.B.NO.52,, FORT ROAD, KANNUR. - 3 P.T.SIDDIQUE S/O. MUHAMMED BATHAKAMTAVIDE VEEDU, ELAYAAVOOR AMSOM ATHIRAKAM DESOM, KANNUR- 670702 - BY ADV SRI.A.A.MOHAMMED NAZIR ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 22.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No2424 of 2008 -:2:- Dated this the 22[nd] day of October,2021 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.477/2000 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act,1988, claiming compensation on account of the injuries that he sustained in an accident on 21.12.1999. It was his case that, on the above said date, while he was talking with his friends on the road side near Pazhassi Quarters, a scooter bearing registration No. KL-13-632 (scooter), came from the tana side, which was driven by 3[rd] respondent in a rash and negligent M.A.C.A.No2424 of 2008 -:3:- manner and hit the appellant. The appellant sustained serious injuries including a fracture and a head injury. The appellant was treated as inpatient at the Dhanalakshmi Hospital, Kannur and, thereafter, at the Medical College Hospital, Calicut, for a period of twenty days. The appellant was a mason by profession and earning a monthly income of Rs.4500/-. The 1[st] respondent was the registered owner and the 2[nd] respondent was the insurer of the scooter. Hence, the appellant claimed an amount of Rs.3,21,000/- from the respondents, which was limited to Rs.2,00,000/-. 3. The first respondent had filed a written statement inter alia, denying that he was the owner of the scooter. He contended that he had sold the scooter to the 3[rd] respondent. Therefore, he was to be exonerated of any liability. 4. The second respondent had filed a written statement, inter alia, contending that the 3[rd] M.A.C.A.No2424 of 2008 -:4:- respondent did not hold a valid driving licence. Hence, there was violation of policy conditions. It was also contended that it was one Muhammed who was the insured of the scooter, and therefore, the 2[nd] respondent has no liability to indemnify the 1[st] respondent. Hence, the claim petition as against the 2[nd] respondent may be dismissed. 5. On the basis of the allegation in the written statement, the appellant impleaded the driver of the scooter as supplemental 3[rd] respondent. 6. The appellant produced and marked Exhibits A1 to A4 series in evidence. The Medical Board report was marked as Exhibit ‘C1’. The 2[nd] respondent produced and marked Exhibits B1 and B2 in evidence. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part by permitting the appellant to realise from the 3[rd] respondent an amount of Rs.52,938/-/- with M.A.C.A.No2424 of 2008 -:5:- interest at the rate of 7% per annum from the date of petition till the date of realisation and a cost of Rs.200/-. 8. Aggrieved by the exoneration of the 2[nd] respondent/insurer and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard; Sri. Jacob Abraham the learned counsel appearing for the appellant/petitioner and Sri.Mohammed Nazir, the learned counsel appearing for the second respondent/insurer. 10. The questions that arise for consideration in the appeal are (i) whether the exoneration of the second respondent was sustainable in law (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Question No. (i)** 11. It is proved by Exhibit B2 charge sheet that the accident was caused due to the negligence of the M.A.C.A.No2424 of 2008 -:6:- 3[rd] respondent. Nevertheless, the Tribunal for the reason that in Exhibit B2 charge sheet, it was observed that the scooter was sold as per a written agreement to one Muhammed Rafi, went on to hold that the 1[st] respondent was not the owner of the scooter and, therefore, the 2[nd] respondent was not liable to indemnify the 1st respondent’s liability arising out of the accident. This finding according to me is erroneous and wrong because there is absolutely no material produced by the respondents 1 and 2 before the Tribunal to prove that the 1[st] respondent had sold the scooter to the 3[rd] respondent. 12. It is trite law that, mere pleading is not proof. 13. The 2[nd] respondent in its written statement admitted that the scooter had a valid insurance policy as evidenced by Exhibit B1. It was the case of the 2[nd] respondent that the 3[rd] respondent did not hold a valid driving license and that the scooter was sold to M.A.C.A.No2424 of 2008 -:7:- one Muhammed, therefore the 2[nd] respondent was not liable to indemnify the 1[st] respondent. 14. The fact remains, as discernible from Exhibit B1 insurance policy, that Exhibit B1 was issued in the name of the 1[st] respondent. The respondents 1 and 2 did not produce any material to prove that the scooter was sold to one Muhammed as observed in Exhibit B2 charge sheet. Moreover, it is settled law that even if the vehicle is sold to a third party, so long as there is a valid insurance policy, the insurer is liable to pay compensation to a third party in an accident arising out of the use of the vehicle. 15. Nevertheless, as the 3[rd] respondent did not hold a valid driving licence and did not bother to produce the same despite the specific contention of the 2[nd] respondent and the observation in Exhibit B2 charge sheet, I hold that the 2[nd] respondent is liable to pay the compensation amount to the appellant and recover the amount from the 1[st] respondent. Hence, I M.A.C.A.No2424 of 2008 -:8:- direct the 2[nd] respondent to pay the compensation amount to the appellant and recover it from the 1[st] respondent, the registered owner of the scooter, in whose name Exhibit B1 insurance policy is issued. ## **Question No.(ii)** 16. The appellant had claimed that he was a mason by profession and earning a monthly income of Rs.4500/-. However, the Tribunal fixed the notional annual income of the appellant at Rs.16,000/- (i.e. Rs.1333/- per month). 17. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. 18. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred on 21.12.1999, I hold that the appellant’s notional income can safely be fixed at Rs.3000/- per M.A.C.A.No2424 of 2008 -:9:- month. ## **Disability** 19. The appellant had got his disability assessed by a five member Medical Board attached to the Medical College Hospital, Calicut. The Medical Board by Exhibit ‘C1’ has certified that the appellant has no orthopedic disability as on the date of examination i.e. 03.05.2001. But, the Medical Board considering that the appellant was on epileptic medication has certified that he has a permanent disability of 1%. 20. At this distance of time, I do not find any reason to disagree with the assessment made by the Medical Board in fixing the permanent disability of the appellant at 1%, which I treat as the functional disability of the appellant. Thus, I confirm the said assessment. ## **Multiplier** 21. The appellant was aged 20 years at the time M.A.C.A.No2424 of 2008 -:10:- of accident. Following the ratio in **Sarla Verma and Others v. Delhi Transport Corporation and another[(2009) 6 SCC 121],** I fix the relevant multiplier at ‘18’. ## **Compensation for loss due to disability** 22. Following the afore-mentioned factors, namely, the age of the appellant at 20, the monthly income of the appellant at Rs.3000/-, his functional disability at 1% and multiplier at ‘18’, I re-fix the compensation for loss of disability at Rs.6480/-, instead of Rs.2560/- fixed by the Tribunal. ## **Loss of earnings.** 23. The appellant was indisposed for a period of three months. Taking into account the fact that the appellant had sustained a fracture and a head injury, and was treated as inpatient for a period of twenty days, I confirm the findings of the Tribunal in this regard. However, in view of the re-fixation of the monthly income of the appellant at Rs.3000/-, I re-fix M.A.C.A.No2424 of 2008 -:11:- the compensation for loss of earning at Rs.9000/-, instead of Rs.3500/- fixed by the Tribunal. ## **Compensation for pain and sufferings and loss of amenities** 24. The appellant had claimed an amount of Rs.25,000/- as compensation for ‘pain and sufferings’ and Rs.50,000/- as compensation for ‘loss of amenities’. The Tribunal only awarded an amount of Rs.10,000/- as compensation for pain and sufferings. 25. Taking into consideration that the appellant had sustained a fracture and a head injury, that he was treated as inpatient for a period of twenty days and that he was indisposed for a period of three months, I hold that the appellant is entitled to compensation by a further amount of Rs.15,000/under the head ‘pain and sufferings’ and an amount of Rs.25,000/- under the head ‘loss of amenities’. 26. With respect to other heads of compensation, namely, transportation expenses, by-stander expenses M.A.C.A.No2424 of 2008 -:12:- and medical expenses, I find that the Tribunal has awarded reasonable and just compensation. 27. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decisions, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. |Sl.No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculate<br>d by this<br>Court| |---|---|---|---| |1|Loss of earnings|3500|9000| |2|Transportation|500|500| |3|By<br>stander<br>expenses|2000|2000| |4|Medical expenses|34378|34378| |5|Pain<br>and<br>sufferings|10000|25000| |6|Loss of amenities|0|25000| |7|Loss<br>due<br>to<br>disability|2560|6480| ||**Total**|**52,938**|**1,02,358**| M.A.C.A.No2424 of 2008 -:13:- In the result, the appeal is allowed in part by enhancing the compensation by a further amount of Rs.49,420/with interest on the enhanced compensation at the rate of 7.5% per annum from the date of petition till the date of realisation and a cost of Rs.3000/-. The second respondent is directed to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this judgment. After depositing the said amount, the 2[nd] respondent would be at liberty to recover the compensation amount from the 1[st] respondent in accordance with law. The Tribunal shall immediately on the deposit being made by the 2[nd] respondent, disburse the compensation amount to the appellant in accordance with law. Sd/- ## **C.S.DIAS,JUDGE** rmm/22.10.2021