MusthahsIn K.N. and Shafeeque K. v. Sreedharan N.M. and Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 1[ST] DAY OF FEBRUARY 2023 / 12TH MAGHA, 1944 MACA NO. 1508 OF 2017** **AGAINST THE ORDER/JUDGMENT OPMV 322/2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, TALIPARAMBA** ## **APPELLANTS/1ST AND 2ND RESPONDENTS:** 1 MUSTHAHSIN K.N AGED 21 YEARS, S/O.MUSTHAFA, JUMAILAS HOUSE, TALIPARAMBA AMSOM, 7TH MILE, TALIPARAMBA P.O., KANNUR DISTRICT. 2 SHAFEEQUE K AGED 25 YEARS, S/O.RAHIM K, AMINAS, 7TH MILE, KUTTIKOL.P.O., TALIPARAMBA, KANNUR DISTRICT. BY ADVS. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH ## **RESPONDENTS/RESPONDENTS:** 1 SREEDHARAN N.M AGED 59 YEARS, S/O.N.M.CHINDAN, RESIDING AT NAYAKKARA MADATHIL HOUSE, PAIYARAM AMSOM, THIRUVATTOOR, IRINGAL, TALIPARAMBA TALUK, KANNUR DISTRICT, PIN-670 521. 2 ORIENTAL INSURANCE COMPANY LIMITED BRANCH OFFICE, TALIPARAMBA, MARINA SHOPPING CENTRE, NATIONAL HIGHWAY. BY ADVS. SRI.MAHESH V RAMAKRISHNAN GEORGE CHERIAN (SR.) K.S.SANTHI LATHA SUSAN CHERIAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.02.2023, ALONG WITH MACA.587/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.Nos.1508 of 2017 and 587 of 2021 : 2 : # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 1[ST] DAY OF FEBRUARY 2023 / 12TH MAGHA, 1944 MACA NO. 587 OF 2021** **AGAINST THE ORDER/JUDGMENT OPMV 322/2016 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL, TALIPARAMBA** ## **APPELLANT/PETITIONER:** SREEDHARAN N. M. AGED 63 YEARS, S/O. N. M. CHINDAN, RESIDING AT NAYAKKARA MADATHIL HOUSE, PARIYARAM AMSOM, THIRUVATTOOR, IRINGAL, TALIPARAMBA TALUK, KANNUR DISTRICT - 670 141. BY ADV MAHESH V RAMAKRISHNAN ## **RESPONDENTS/RESPONDENTS:** 1 MUSTHAHSIN K. N. AGED 26 YEARS, S/O. MUSTHAFA, JUMAILAS (HOUSE), TALIPARAMBA AMSOM, 7TH MILE, TALIPARAMBA P. O., KANNUR DISTRICT - 670 141. (DRIVER OF KL-59-C-408 MOTOR CYCLE) 2 SHAFEEQUE K. S/O. RAHIM K., 'AMINAS', 7TH MILE, KUTTIKKOL P. O., TALIPARAMBA, KANNUR DISTRICT - 670 562. (RC OWNER OF THE KL-59-C-408 MOTOR CYCLE) 3 THE ORIENTAL INSURANCE CO. LTD. BRANCH OFFICE, TALIPARAMBA, MARINA SHOPPING CENTRE, NATIONAL HIGHWAY, TALIPARAMBA, KANNUR DISTRICT - 670 141. BY ADVS. SRI.K.N.ABHILASH SRI.GEORGE CHERIAN (SR.) SRI.ALEXY AUGUSTINE SRI.SUNIL NAIR PALAKKAT SRI.GEORGE A.CHERIAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.02.2023, ALONG WITH MACA.1508/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.Nos.1508 of 2017 and 587 of 2021 : 3 : **DEVAN RAMACHANDRAN, J. ========================= M.A.C.A.Nos. 1508/2017 & 587/2021 ========================== Dated this the 01[st] day of February, 2023** ## **JUDGMENT** I am deciding these two appeals together since they involve the same accident and because, in the first among them – namely, MACA No.1508/2017, the appellants, who are the owner and driver of the vehicle involved in the accident which lead to OP(MV) 322/2016 on the files of the Motor Accident Claims Tribunal Taliparamba (the 'Tribunal' for short), impugn the Award of the said Tribunal to the extent to which it has found them alone responsible for paying compensation and not the Insurance Company; while in MACA No.587/2021, the claimant seeks enhancement of the amounts which has been granted by the Tribunal. 2. The most essential facts required for a decision of this Court in these matters, are that the appellant in MACA No.587/2021 (hereinafter referred to as the “claimant” for short) was injured in an accident caused by a vehicle driven by the 1[st] appellant in MACA No.1508/2017 (hereinafter referred to M.A.C.A.Nos.1508 of 2017 and 587 of 2021 : 4 : as the “driver” for short) and owned by the 2[nd] appellant in the said MACA (hereinafter referred to as the “owner” for short). The claimant, thereupon, filed the aforementioned Original Petition before the Tribunal, seeking an amount of Rs.3,60,000/as compensation; which was, however allowed, awarding only Rs.2,07,900/-. But, while doing so, the Tribunal exonerated the Insurance Company, which had issued the policy of insurance to the offending vehicle, on the ground that, at the time of accident, there was no valid policy. 3. The “claimant” thus impugns the Award, seeking enhancement of the compensation; while the “owner” and “driver” challenge it on the ground that the compensation awarded is high and that the exoneration of the Insurance Company was wrong. 4. I have heard Sri.K.N.Abhilash – learned counsel for the appellants in MACA No.1508/2017; Sri.Mahesh V.Ramakrishnan – learned counsel for the appellants in MACA No.587/2021 and Smt.K.S.Santhi – learned Standing Counsel for the Insurance Company. 5. As regards the compensation allowed by the Tribunal, Sri.Mahesh V.Ramakrishnan – learned counsel for the appellants M.A.C.A.Nos.1508 of 2017 and 587 of 2021 : 5 : in MACA No.587/2021, argued that the notional income fixed for his client as Rs.5,000/- is in error and contrary to the standardisation adopted by the Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]** ; while Sri.K.N.Abhilash appearing for the “owner” and “driver”, argued that the amount granted by the Tribunal under the head “Pain and suffering” to the claimant is excessive. 6. Coming to the controversy regarding the Insurance Policy, it is on record that Annexure B1 – which is the copy of the same, records that it was issued on 05.09.2013, but with the cover beginning from 00:00 on 06.09.2013 midnight. The accident, admittedly, occurred at 6.40 p.m, on 05.09.2013. 7. This is the genesis of the controversy in these cases, because the Insurance Company takes a stand that, at the time of the accident, there was no policy covering the vehicle in question; while the “owner” and “driver” take the position that they had remitted the premium much prior to 5.00 p.m, on 05.09.2013, and that therefore, there are binding precedents to the effect that the indemnification would run from that time, and not from the date mentioned in the policy. M.A.C.A.Nos.1508 of 2017 and 587 of 2021 : 6 : 8. Smt.K.S.Santhi – learned Standing Counsel for the Insurance Company, vehemently argued that the law has now been well settled through various judgments, including in **National Insurance Co.Ltd. v. Sobina Iakai (Smt) & others** **[(2007) 7 SCC 786]** and **L.I.C. of India v. Kamalamma [1986 K.L.T. 347],** that what is relevant is the date and time in the insurance policy and not the date and time when the premium for the policy was accepted. She submitted that the Tribunal correctly assessed this and found that there was no insurance cover for the offending vehicle at the time of the accident. She thus prayed that the afore appeals, to the extent impugned against this finding of the Tribunal, be dismissed. 9. Per contra, Sri.K.N.Abhilash – learned counsel appearing for the “owner” and “driver” of the offending vehicle (appellants in MACA No.1508/2017), argued, relying upon judgment of a Constitution Bench of the Hon'ble Supreme Court in **General Assurance Society Ltd. v. Chandmull Jain and Another [AIR 1966 SCC 1644],** that the law is now well settled that, on the premium being accepted and being accounted for, the insurance cover begins, and that the Insurance Company cannot shy away from such an obligation. M.A.C.A.Nos.1508 of 2017 and 587 of 2021 : 7 : 10. The afore rival contentions having been recorded, I now proceed to evaluate them on the touchstone of the evidence available on record – copies of which have been handed over across the Bar by the learned counsel for the rival parties, with the specific understanding that this Court can dispose of these appeals on such a basis. 11. Coming to the question of the quantum of compensation, the Tribunal has reckoned the monthly income of the claimant has been Rs.5,000/- and has awarded Rs.15,000/for three months under the head “Loss of Earnings”. It has also granted an additional amount of Rs.90,000/- towards “Pain and sufferings”. 12. While the claimant, through his learned counsel – Sri.Mahesh V.Ramakrishnan, argues that even going by **Ramachandrappa (supra),** for a person whose income is unascertainable in the year 2013, the standard to be reckoned was Rs.9,000/- per month; and thus that the loss of earnings sought to have been Rs.27,000/-, instead of Rs.15,000/-; Sri.K.N.Abhilash – learned counsel for the “owner” and “driver” argued that the income reckoned by the Tribunal was without error; and further that the amounts granted under the head M.A.C.A.Nos.1508 of 2017 and 587 of 2021 : 8 : “Pain and sufferings” is unjustified. 13. On this issue, I must say that I find considerable force in the submissions of Sri.Mahesh V.Ramakrishnan because, as rightly argued by him, in **Ramachandrappa (supra),** the notional income of a person who was involved in an accident in the year 2013 and whose income is otherwise unascertainable, is fixed at Rs.9,000/-. In the absence of any contra evidence, that the claimant was enjoying a lesser monthly income than that, I am certain that the Tribunal ought to have adopted it, rather than Rs.5,000/-, which appears to have been accepted without any rational basis. Pertinently, the claim of the petitioner is only that he was drawing Rs.8,500/- per month as salary, since he was working as a security officer, and I did not see any reason why the Tribunal should not have accepted that figure, while arriving at the compensation. 14. Coming to the head of “Pain and sufferings”, apart from an assertion by the “owner” and “driver” of the offending vehicle that Rs.90,000/- is an excess, nothing in substantiation has been pleaded or established. Going by Ext.A2 and A3 – Wound certificates, the petitioner sustained: _“bleeding left ear, deformity mid portion of leg, bleeding wound with swelling_ M.A.C.A.Nos.1508 of 2017 and 587 of 2021 : 9 : _present mid leg right (1 cm), fracture mid shaft right tibia and fibula, fracture base of distal phalanx right”_ (sic). To add to this, Ext.A4 establishes that he was admitted to the hospital on 06.09.2013 and discharged only 14 days later, on 20.09.2013. Since these documents are not disputed by the appellants in MACA No.1508/2017, the Tribunal was wholly without error in having accepted them, and to have awarded an amount of Rs.90,000/- towards “Pain and sufferings”, which by any standard cannot be seen to be excessive. 15. In such circumstances, obviously, the compensation eligible to the claimant under the head “loss of earnings” require to be revised to Rs.25,500/-, from Rs.15,000/- as has been granted by the Tribunal in the impugned Award; but in all other respects, the same is in order and should not be interfered with. 16. That now brings me to the question of whether the offending vehicle had a valid insurance policy at the time of the accident. 17. As already recorded above, the accident occurred, admittedly, at 6.40 p.m. on 05.09.2013. Ext.B1 Insurance policy is, no doubt, dated 05.09.2013, but its period of insurance has M.A.C.A.Nos.1508 of 2017 and 587 of 2021 **==> picture [27 x 8] intentionally omitted <==** been recorded as being from 00:00 hours on 06.09.2013 to midnight on 05.09.2014. On this basis, the learned Tribunal has entered into a finding that the vehicle had no valid insurance policy at the time of the accident. 18. However, what is relevant is to verify is whether the acceptance of the premium by the Insurance Company on 05.09.2014, prior to the accident, would make them liable for the consequences of the same. For this, what is relevant to be assessed is whether, even though the owner of the vehicle had paid the premium prior to the accident, the Insurance Company would be liable to indemnify him because the policy fixed a date for the commencement of the cover, which was subsequent. The various judgments cited by the parties before me are unambiguously to the effect that, in the absence of a special contract between the owner and the Insurance Company and by the interpretative operation of the General Clauses Act, the cover of insurance would start from midnight of the day on which the premium is paid. In other words, only if the insurance company is able to show that there was a special contract entered into with the owner by then, with the effect that the contract would either be purchased on a future date or M.A.C.A.Nos.1508 of 2017 and 587 of 2021 **==> picture [27 x 8] intentionally omitted <==** the cover under it would commence from a future time is established, can their liability be shared. Of course, the contra argument of the insurance company that the contents of the policy itself would amount to a special contract is one that will have to be tested based on the evidence to be led by the parties. The Tribunal has not considered this issue from such perspective, and I am therefore of the view that the parties must be given necessary opportunities to lead additional/fresh evidence on this issue, particularly with respect to the actual time of receipt of premium by the Insurance Company and whether the owner had acceded that the cover under it would run from a future time or date. In the afore circumstances, (a) MACA No.1508/2017 is allowed in part, with a direction to the Tribunal to reconsider the aspect of insurance coverage in favour of the offending vehicle at the time of the accident, after affording both sides necessary opportunities of hearing and of leading additional evidence on this issue alone; leading to a fresh order on this aspect, within a period of three months from the M.A.C.A.Nos.1508 of 2017 and 587 of 2021 **==> picture [27 x 8] intentionally omitted <==** date of receipt of a copy of this judgment. - (b) The claimant, namely the appellant in M.A.C.A No.587/2021, is declared entitled to an amount of Rs.25,500/- under the head “loss of earnings.” In all other respects, the impugned Award of the Tribunal shall stand confirmed. In order to obtain an expeditious compliance of the directions in (a) above, I order the parties to mark appearance before the Tribunal at 11 a.m on 05.04.2023. **Sd/DEVAN RAMACHANDRAN JUDGE** anm/stu